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CASEY v. WESTINGHOUSE ELEVATOR CO.

December 31, 1986

EZRA CASEY, SR., AS FATHER AND NEXT FRIEND OF EZRA CASEY, JR., A MINOR, PLAINTIFFS,
v.
WESTINGHOUSE ELEVATOR COMPANY, A DIVISION OF WESTINGHOUSE ELECTRIC CORPORATION, A FOREIGN CORPORATION, AND MAY CENTERS, INC., DEFENDANTS. AND MAY CENTERS, INC., CROSSPLAINTIFF/CROSSDEFENDANT, V. WESTINGHOUSE ELEVATOR COMPANY, CROSSDEFENDANT/CROSSPLAINTIFF.



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

MEMORANDUM AND ORDER

Before the Court is cross-defendant Westinghouse Elevator Company's (Westinghouse) motion to dismiss Count II of cross-plaintiff, May Centers, Inc.'s (May) crossclaim for contribution.

The original action was filed by Ezra Casey, Sr., as father and next friend of Ezra Casey, Jr., a minor. The amended two-count complaint is based on strict product liability against defendants Westinghouse Elevator Company and May Centers, Inc., and alleges personal injuries to Ezra Casey, Jr. which resulted when his right hand was caught in an open gap on an escalator located in Alton Square Shopping Center (Alton Square). Alton Square is owned and operated by May. Westinghouse is alleged to have manufactured and installed the escalator.

May filed an amended two-count crossclaim against Westinghouse. Count I is based on contribution. Count II sounds in "upstream" implied indemnity. Only Count II is at issue in the motion to dismiss.

This Court is faced with the task of determining whether the common law principle of implied indemnity, in particular "upstream" implied indemnity, is still viable in light of the Illinois Contribution Among Joint Tortfeasors Act, Ill.Rev.Stat. ch. 70 § 301 et seq. (1985). The Illinois Supreme Court has raised the issue of whether implied indemnity exists in view of the Act, however, the Court has ruled only to abolish active-passive indemnity, and has refused to rule on indemnity in general. Allison v. Shell Oil Company, 113 Ill.2d 26, 99 Ill.Dec. 115, 495 N.E.2d 496 (1986). See also Van Slambrouck v. Economy Baler, 105 Ill.2d 462, 86 Ill.Dec. 488, 475 N.E.2d 867 (1985); Simmons v. Union Electric Co., 104 Ill.2d 444, 85 Ill.Dec. 347, 473 N.E.2d 946 (1984); Heinrich v. Peabody International Corp., 99 Ill.2d 344, 76 Ill.Dec. 800, 459 N.E.2d 935 (1984).

Indemnity has been defined as:

  [A] common law doctrine providing for the complete shifting of
  liability on a showing that there was a pretort [sic]
  relationship between the guilty parties and a qualitative
  distinction between their conduct.

Bristow v. Griffitts Construction Co., 140 Ill. App.3d 191, 94 Ill.Dec. 506, 510, 488 N.E.2d 332, 336 (1986) quoting Heinrich, 76 Ill.Dec. at 803, 459 N.E.2d at 938.

In Heinrich, the Supreme Court in 1984 discussed the history of implied indemnity and its difference from contribution. The court recognized that the theories of recovery are different. Contribution is a statutory remedy which provides for a "sharing" of damages payments, and is applicable to all parties who are subject to tort liability arising out of the same injury. Indemnity is a common law remedy which acts to completely shift liability once a showing is made of a pre-tort relationship between the parties together with a "qualitative distinction between their conduct." Id. at 938.

The court also found the elements to be different, as well as the measure of recovery. To assert a claim for contribution, one only need show a "common injury which his acts and those of the contributor combined to bring about and which makes them subject to liability in tort." Id. Whereas, a party seeking indemnity must show the pre-tort relationship with the indemnitor, and "some significant difference in the nature of their respective conduct which justifies a shifting of liability." Id. This "shifting" factor necessarily results in different recovery as "indemnity is all or nothing," whereas under the Act ". . . no party is liable to make contribution beyond his pro rata share of the common liability as measured by the extent to which his acts or omissions . . . proximately caused the injury." Id. Also, it is not necessary in contribution to establish the "qualitative difference" in the nature of the parties conduct, while, under the principles of indemnity, failure to establish the difference will defeat a claim for indemnification. Id.

The Supreme Court, however, in Heinrich did not rule on whether indemnity survived contribution. In fact, the court refused to rule on the propriety of the dismissal of the indemnity count and found "it presupposes the continued vitality of the traditional doctrine of indemnification." The court remanded the case to the First Appellate District for a finding as to the issue of the survival of implied indemnity in light of the Contribution Act.

The First District, following the directives of the Illinois Supreme Court, also reviewed the relationship of these two doctrines. The court recognized that implied indemnity "developed hand-in-hand with the rule against contribution." Heinrich v. Peabody International Corp., 139 Ill. App.3d 289, 93 Ill.Dec. 544, 547, 486 N.E.2d 1379, 1382 (1985), leave to appeal denied.*fn* The First District found that the implied indemnity did not survive the Contribution Act. In support, the court found the following:

  First, contribution is a full and fair remedy among all parties
  arguably liable for injuries to plaintiffs. Second, the purpose
  of contribution would be defeated if courts continued to
  recognize implied indemnity.

Id. 93 Ill.Dec. at 549, 486 N.E.2d at 1384. These purposes have been recognized as "the equitable sharing of damages, and the encouragement of settlement." Id. Heinrich ...


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