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U.S. HOME CORP. v. GEORGE W. KENNEDY CONST.

September 17, 1985

U.S. HOME CORPORATION, PLAINTIFF,
v.
GEORGE W. KENNEDY CONSTRUCTION COMPANY, INC., ET AL., DEFENDANTS. MACKIE CONSULTANTS, INC., ET AL., THIRD PARTY PLAINTIFFS, V. ARMCO, INC., THIRD PARTY DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

This multiparty litigation was originally launched by U.S. Home Corporation ("U.S. Home"), whose First Amended Complaint (the "Complaint") runs against George W. Kennedy Construction Company, Inc. ("Kennedy"), Mackie Consultants, Inc. ("Mackie"), William Lorek ("Lorek") and American States Insurance Company ("American"). U.S. Home charges:

1. Kennedy and Mackie with breach of contract,

2. Kennedy with breach of express and implied warranties and

3. Kennedy, Mackie and Lorek with negligence, all arising out of the construction of sanitary sewers that serve the single-family Waterford Woods residential development in Lindenhurst, Illinois. Kennedy and Mackie and Lorek have in turn filed two-count Third Party Complaints (the "Kennedy Complaint" and the "Mackie-Lorek Complaint") against Armco, Inc. ("Armco"),*fn1 seeking recovery via contribution and indemnity.

Armco now moves to dismiss each of the Kennedy Complaint and the Mackie-Lorek Complaint under Fed.R.Civ.P. ("Rule") 12(b)(6). For the reasons stated in this memorandum opinion and order, the motion is granted in principal part and denied in part.

Facts*fn2

U.S. Home, a real estate developer, suffered more than $450,000 in damages when the sanitary sewer installation for its major single-family residence development in Lindenhurst proved defective and actually collapsed in part. Mackie had designed the system (its employee Lorek was the responsible professional engineer) and Kennedy had installed it, each under a separate contract with U.S. Home. Armco truss pipe and other Armco-manufactured accessory components were used in construction of the system. No contractual arrangement existed between Armco and either Kennedy or Mackie-Lorek.

Kennedy, Mackie and Lorek contend any liability any of them might have to U.S. Home would be occasioned not by their own delinquency but rather by the defective conditions of the Armco products involved. That, they say, entitles each of them to contribution and indemnity. Armco retorts none of Kennedy, Mackie and Lorek states a cause of action for either such claim.

Contribution

Section 302(a) of the Illinois Contribution Among Joint Tortfeasors Act (part of the "Act," Ill.Rev.Stat. ch. 70, §§ 301-305) provides:

  Except as otherwise provided in this Act, where 2 or more
  persons are subject to liability in tort arising out of the
  same injury to person or property, or the same wrongful death,
  there is a right of contribution among them, even though
  judgment has not been entered against any or all of them.

Thus the Act expressly requires each party to the contribution action to be "subject to liability in tort," and the sensible reading of that phrase connotes liability to the injured party — here U.S. Home. In those terms each of Kennedy, Mackie and Lorek has a viable contribution claim only as to a portion of U.S. Home's potential sources of recovery.

1. Kennedy's and Mackie's Potential Contract Liability to U.S.
   Home

Armco is quite right in urging no contribution would lie if Kennedy's or Mackie's liability to U.S. Home were established on a breach of contract theory. Even were Armco then determined to be a tortfeasor as to U.S. Home, no contribution would be available to Kennedy or Mackie because the requisite "2 or more persons . . . subject to liability in tort" would be ...


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