Appeal from the Circuit Court of Cook County; the Hon. Myron
T. Gomberg, Judge, presiding.
JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Defendant and third-party plaintiff, Youngstown Sheet & Tube Company (Youngstown), appeals from the trial court's order granting summary judgment in favor of third-party defendant Correct Piping Company (Correct Piping) as to count II of Youngstown's amended third-party complaint, which alleged an implied right of indemnity from Correct Piping. Youngstown also appeals the trial court's denial of its motion for leave to amend its third-party complaint with a count alleging breach of contract. We affirm in part, reverse in part and remand.
This case arose out of an accident which occurred on the night of June 25, 1978, during the course of work being done at Youngstown's steel plant located in Gary, Indiana. Correct Piping, an industrial piping contractor, had been called in by Youngstown, the owner of the steel manufacturing plant, to do some repair and maintenance work on the No. 1 reheat furnace at Youngstown's No. 3 hot strip mill. Another piping contractor, Eichleay Corporation, who is also a defendant in the underlying suit, had begun the repair work on the No. 1 reheat furnace but had been discharged by Youngstown. On June 23, 1978, Youngstown personnel allegedly telephoned Correct Piping regarding the completion of repairs on the furnace. Correct Piping began staffing the project that same day. Youngstown and Correct Piping contracted on a time and material basis in which Correct Piping would invoice Youngstown for time spent and materials utilized for the repair project. A written purchase order invoice for the job was issued by Youngstown on June 28, 1978, three days after the accident and five days after Correct Piping started work on the project. The purchase order referred to the June 23 telephone conversation and stated that Correct Piping was to furnish necessary equipment, tools, supervision and pipefitters to complete the job. Allegedly, Youngstown and Correct Piping previously had done business in this manner.
The accident involving plaintiff Woodrow Talas took place at approximately 11:45 p.m. on June 25, 1978. Talas had been hired as a pipefitter by Correct Piping on June 23, 1978, to work the night shift, while Correct Piping was working around-the-clock on the project. During the 6 p.m. to 12 a.m. shift on Sunday, June 25, Talas was working in the basement underneath the No. 1 reheat furnace at the Youngstown plant. The basement is divided into a number of "bays" or compartments which were about 15 to 25 feet high with large pipes running through them. Talas worked in bay No. 1 with another Correct Piping pipefitter, Gene Klamczynski, from 6 p.m. to approximately 10:30 p.m. and then moved to bay No. 2. There was a scaffold approximately 10 feet off the ground in bay No. 2. This scaffold consisted of three 12-foot long boards laid on top of some large pipes and required a ladder to reach it. Shortly after starting work in bay No. 2, Talas and Correct Piping superintendent Larry Gregory looked for a 10-foot ladder among Correct Piping's equipment but could only find a new 8-foot ladder, which Talas then took to bay No. 2. Ascending the ladder, Talas had to scramble off the ladder and onto the scaffolding in order to measure some pipes. On his second trip up the ladder, Talas attempted to climb up onto the scaffolding and hit his head on a pipe which had one end disconnected. He fell and sustained serious injuries.
On July 17, 1978, Talas and his wife brought suit against Youngstown and Eichleay Corporation, charging that Youngstown negligently failed to provide: (1) proper and adequate lighting; (2) proper and adequate scaffolding; (3) a safe clean working area; (4) proper supervision of the work; (5) proper coordination of the work of its contractors and subcontractors; (6) safe and proper access to the scaffold upon which he was working; and (7) negligently provided Talas with a scaffold that was dangerous when Youngstown knew or should have known the scaffolding was in a dangerous condition. Youngstown filed its amended answer denying it was negligent and raising several affirmative defenses.
On May 30, 1980, Youngstown filed its original third-party complaint against Correct Piping. Count I alleged breach of contract, count II alleged breach of express indemnity contract, and count III sounded in constructive indemnity. On June 8, 1981, Judge Gomberg dismissed counts I and II with prejudice, but did not find that there was "no just reason for delaying enforcement or appeal." The court also struck count III but gave Youngstown leave to amend. On September 24, 1981, Youngstown filed an amended third-party complaint which consisted of one count alleging a right to indemnity based on the respondeat superior doctrine. Youngstown later added another count to its amended third-party complaint which sounded in implied indemnity and is now one of the subjects of this appeal. Correct Piping's motion to dismiss counts I and II of the amended third-party complaint was denied. On December 28, 1982, Correct Piping moved for summary judgment on counts I and II which Judge Gomberg denied with respect to count I on October 13, 1983, but which he granted with respect to count II on December 22, 1983. On June 14, 1984, Youngstown sought leave to amend its amended third-party complaint in order to add a proposed count III alleging breach of contract. Judge Gomberg denied Youngstown's motion for leave to amend in a final and appealable order. Youngstown now appeals that decision as well as Judge Gomberg's decision to grant summary judgment with respect to count II alleging implied indemnity.
• 1 We find, and the parties concede, that under the criteria set forth in Ingersoll v. Klein (1970), 46 Ill.2d 42, 262 N.E.2d 593, Indiana law governs the substantive issues raised by Youngstown's third-party complaint. Illinois law governs the procedural aspects of the case since Illinois is the forum State. 46 Ill.2d 42, 44-45.
Initially, we must decide whether the trial court erred in denying Youngstown's motion for leave to amend its amended third-party complaint with a proposed amended count III which alleged that Correct Piping breached a contractual duty to perform the work in a safe manner. The parties have disputed whether or not the trial court's previous dismissal with prejudice of original count I of the original third-party complaint which made substantially similar claims and allegations bars the proposed amendment. However, we need not and do not decide the issue because we would affirm the trial court's denial of leave to amend even if we were to assume, arguendo, that the dismissal with prejudice of original count I did not act as a bar to the addition of proposed amended count III.
• 2 The decision as to whether to allow or deny an amendment rests within the sound discretion of the trial court (Montgomery Ward & Co. v. Wetzel (1981), 98 Ill. App.3d 243, 423 N.E.2d 1170, appeal denied (1981), 85 Ill.2d 567; Banks v. United Insurance Co. of America (1975), 28 Ill. App.3d 60, 328 N.E.2d 167), and its decision will not be disturbed on review absent an abuse of that discretion (United Air Lines, Inc. v. Conductron Corp. (1979), 69 Ill. App.3d 847, 387 N.E.2d 1272, appeal denied (1979), 79 Ill.2d 618). Among the factors to be considered in deciding that discretion was properly exercised is whether the proposed amendment would cure the defective pleading; whether it could cause prejudice or surprise to other parties; the timeliness of the proposed amendment; and whether previous opportunities to amend the pleadings could be identified. Kupianen v. Graham (1982), 107 Ill. App.3d 373, 377, 437 N.E.2d 774.
• 3 In the case at bar, the proposed amendment did not cure any defects in the pleading. Youngstown would not be prejudiced by the denial of leave to amend since it has not argued that the issues raised by the proposed amendment could not have been presented and argued before the trial court during its consideration of the dismissed count. However, Correct Piping would be prejudiced by having to relitigate issues which had been previously adjudicated by the trial court in its dismissal with prejudice of a count which made substantially the same allegations and claims as the proposed amendment. Moreover, the proposed amendment was submitted more than three years after the initial filing of the third-party complaint and during that time many opportunities to amend had presented themselves. Under these circumstances, we cannot say that the trial court abused its discretion in denying Youngstown's motion for leave to amend its amended third-party complaint.
• 4 Youngstown also contends that the trial court erred in granting Correct Piping's motion for summary judgment as to count II of the amended third-party complaint. We agree.
In reviewing the trial court's grant of summary judgment, we must consider all grounds and facts urged below to determine whether a genuine issue of material fact exists and whether the moving party was entitled to summary judgment as a matter of law. (Newell v. Field Enterprises, Inc. (1980), 91 Ill. App.3d 735, 415 N.E.2d 434; Cato v. Thompson (1980), 83 Ill. App.3d 321, 403 N.E.2d 1239.) In doing so, we must construe the evidence and pleadings strictly against the moving party and liberally in favor of the opponent. Baier v. State Farm Insurance Co. (1975), 28 Ill. App.3d 917, 329 N.E.2d 543, aff'd (1977), 66 Ill.2d 119.
Indiana follows the general rule prohibiting contribution or indemnity between joint tortfeasors. (McClish v. Niagara Machine & Tool Works (S.D. Ind. 1967), 266 F. Supp. 987 (applying Indiana law).) There are, however, well-recognized exceptions to this general rule, in which the right to indemnity is implied. One such exception arises when a person is found constructively liable as a result of a non-delegable duty imposed by operation of a special statute or rule of law. When such a person is otherwise without fault, he is entitled to indemnity from one who directly causes the harm. McClish v. Niagara Machine & Tool Works (S.D. Ind. 1967), 266 F. Supp. 987, 989-90; see also Krone v. United States Steel Corp. (1978), 60 Ill. App.3d 613, 615, 377 N.E.2d 222, appeal denied (1978), 71 Ill.2d 609.
Youngstown asserts that this exception is applicable here. Correct Piping maintains that the Talas action could only result in Youngstown's being found either not liable at all or liable as a joint tortfeasor. Either finding would preclude an indemnity action. Correct Piping argues that there is no allegation in the Talas' complaint as to any means by which Youngstown could be held merely constructively liable to Talas ...