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INTAMIN, INC. v. FGLY-WRGHT CNTRCTRS

May 3, 1985

INTAMIN, INC., PLAINTIFF,
v.
FIGLEY-WRIGHT CONTRACTORS, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

Intamin, Inc. ("Intamin") has asserted several claims — breach of contract, breach of express and implied warranties and breach of contractual indemnity — against Figley-Wright Contractors, Inc. ("Figley-Wright") and related parties, stemming from construction of a roller coaster at Marriott's Great America Theme Park ("Great America") in Gurnee, Illinois. Figley-Wright has in turn filed a Third Party Complaint against Curtis D. Summers, Inc. ("Summers"), seeking recovery via contractual indemnity. In response Summers has counterclaimed, charging Figley-Wright with negligence.

Figley-Wright now moves under Fed.R. Civ.P. ("Rule") 12(b)(6) to dismiss Summers' counterclaim. For the reasons stated in this memorandum opinion and order, the motion is granted.

Background

On June 2, 1980 Intamin contracted with Marriott Corporation ("Marriott") to provide a roller coaster for Marriott at Great America (Complaint Ex. A). Intamin in turn contracted with Summers to provide most of the professional engineering design services (Complaint Ex. C, Art. 2)*fn1 and with Figley-Wright to construct the roller coaster (Complaint Ex. B, Art. 2). No contractual relationship existed between Figley-Wright and Summers.

After the roller coaster had been built and put into operation, Marriott discovered design and construction defects and required Intamin to make repairs under the warranty terms of the Marriott-Intamin contract. Intamin in turn sought compensation from Summers and Figley-Wright. On July 10, 1984 Intamin entered into a settlement agreement with Summers by which Intamin released all present and future claims against Summers in return for Summers' payment of $203,820.49.

In the meantime Figley-Wright has engaged in battle with both Intamin and Summers. In August 1984 Figley-Wright filed its Third Party Complaint seeking both contribution and indemnity from Summers for any liability of Figley-Wright to Intamin as determined in this action. On February 12, 1985 (in the "Opinion") this Court (1) dismissed Figley-Wright's contribution claim but (2) held its indemnity claim stated a cause of action for any liability of Figley-Wright to Intamin resulting from Summers' negligence. 605 F. Supp. 707 (N.D. Ill. 1985).

Summers' counterclaim against Figley-Wright asserts Summers' settlement payment to Intamin covered damages caused by Figley-Wright's negligence. Summers seeks to recover that payment — or at least the portion that represents damages attributable to Figley-Wright's negligence.

Figley-Wright advances three independent grounds for dismissal:

    1. Moorman Manufacturing Co. v. National Tank Co.,
  91 Ill.2d 69, 61 Ill. Dec. 746, 435 N.E.2d 443 (1982) prohibits
  recovery in tort for purely economic losses of the type
  claimed by Summers.

2. Figley-Wright owed no duty of care to Summers.

    3. Summers' counterclaim is an attempt to obtain
  indemnification for its own negligent acts.

Only the second of those has any possible merit, and it will be dealt with last. Though the last of the three is so empty as to require no real discussion at all,*fn2 the first reflects such a total disregard of this Court's prior ruling and the case law as to call for extended ...


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