United States District Court, Southern District of Illinois
December 31, 1986
EZRA CASEY, SR., AS FATHER AND NEXT FRIEND OF EZRA CASEY, JR., A MINOR, PLAINTIFFS,
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
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
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 noted that the
Contribution Act has established:
[R]elative responsibility as the public policy of Illinois. In
a complex and interdependent economy such as ours, it is
increasingly likely that two or more separate persons or
entities will be partly, but not completely responsible for a
Id. The court found contribution to be flexible, fair, and an
"efficient and effective remedy among tortfeasors . . . capable
of shifting responsibility entirely to one party if the facts
so indicate, and it is capable of apportioning responsibility
in response to far more subtle factual situations." Id. 93
Ill.Dec. at 550, 486 N.E.2d at 1385 (emphasis added).
The First District, therefore, found "ample reason" to abolish
implied indemnity as it acts to "subvert the purposes of
contribution." Id. Further:
Although contribution and implied indemnity are separate causes
of action . . . both doctrines impose duties which are
quasi-contractual in nature. . . . [a] duty to share damage in
proportion to responsibility is fundamentally inconsistent
with the all-or-nothing shifting of damages [in implied
indemnity] from one admittedly liable party to another.
Id., (emphasis added). This philosophy has been recognized by
the United States Supreme Court in Northwest Airlines, Inc. v.
Transport Workers Union of America, 451 U.S. 77
, 101 S.Ct.
1571, 67 L.Ed.2d 750 (1981). The court held that the right of
[R]eflects the view that when two or more persons share
responsibility for a wrong, it is inequitable to require one to
pay the entire cost of reparation, and it is sound policy to
deter all wrongdoers by reducing the likelihood that any will
entirely escape liability.
Id. at 88, 101 S.Ct. at 1579 (emphasis added).
Simarily, other Illinois Appellate districts have also found
that implied indemnity did not survive the Contribution Act.
In the Fifth District case of Holmes v. Sahara Coal,
131 Ill. App.3d 666, 86 Ill.Dec. 816, 475 N.E.2d 1383 (1985) the
court made a detailed review of the issue, and noted that the
question as to whether the Illinois General Assembly intended
the Contribution Act to replace implied indemnity has produced
much discussion. Quoting Justice Downing's concurrence in
Morizzo v. Laverdure, 127 Ill. App.3d 767, 83 Ill.Dec. 46,
469 N.E.2d 653 (1984):
With the passage of the Contribution Act it is reasonable to
conclude that the legislature intended that, without
qualification, implied indemnity should no longer exist. I see
no reason to distinguish between vicarious liability, indemnity
in tort cases, or cases alleging "upstream" strict liability.
Id. 83 Ill.Dec. at 52, 469 N.E.2d 653
at 659 (emphasis
added). This Court agrees.
A number of other opinions have looked to the legislative
intent as a directive on this issue. See Frazer v. A.F.
Munsterman, 145 Ill. App.3d 1092, 99 Ill.Dec. 734,
496 N.E.2d 309 (1986). Bristow v. Griffitts Const. Co., 140 Ill. App.3d 191,
94 Ill.Dec. 506, 488 N.E.2d 332 (1986). (Morthland, J.
dissenting). Although this Court does not consider legislative
intent to be dispositive on the issue, it is, however,
instructive. The Frazer court reviewed the history of the
Contribution Act in detail. Both the Uniform Contribution Among
Joint Tortfeasors Act, and the recommendations of the 1976
Judicial Conference Study Committee on Indemnity, Third Party
Actions and Equitable Contributions provided for the retention
of indemnity in their model statutes. The Frazer court
reasoned that the lack of such language in the Illinois statute
adopted by the legislature clearly reflected a legislative
intent to eliminate implied indemnity:
Contrary to the Uniform Act and the recommendations of the
Illinois Judicial Conference, however, the legislature did not
specifically preserve the right of implied indemnity. Beyond
the fact that this suggests a legislative intent to eliminate
implied indemnity in active-passive tort cases as discussed in
Morizzo, we find that it shows a legislative intent to
eliminate all forms of implied indemnity, including implied
indemnity claims based on upstream products liability.
Id. 99 Ill.Dec. at 738, 496 N.E.2d at 313. (emphasis added).
Other Illinois Appellate Courts have found that the failure to
include the indemnity provision in the statute was not fatal to
its survival. The First District majority in Morizzo, 83
Ill.Dec. 46, 469 N.E.2d 653 determined that implied indemnity
survives in those cases where there is a pre-tort relationship
between the parties "which gives rise to a duty to indemnify,"
e.g. lessor-lessee, employer-employee, master-servant and
upstream claims in a strict liability action. Id. 83 Ill.Dec.
at 51, 469 N.E.2d at 658. See also, Lowe v. Norfolk and
Western Ry. Co., 124 Ill. App.3d 80, 79 Ill.Dec. 238,
463 N.E.2d 792 (5th Dist. 1984); Van Jacobs v. Parikh,
97 Ill. App.3d 610, 52 Ill.Dec. 770, 422 N.E.2d 979 (1st Dist.
1981); see also Jethroe v. Koehring Co., 603 F. Supp. 1200
(S.D.Il1. 1985). However, the rationale presented for the
survival of implied indemnity is not persuasive to this Court.
Only after much effort have these decisions justified the
retention of implied indemnity. Van Jacobs and Jethroe
reasoned that "the advent of contribution has
made the expansion of implied indemnity no longer necessary."
603 F. Supp. at 1203. The court in Jethroe declined to find
that the Legislature through the Contribution Act had swept
"away a century of implied indemnity law . . . by a mere
omission of language. . . ." Id. at 1204. Van Jacobs
reasoned that the Act "permits the courts to place indemnity
back upon its theoretical foundation." 52 Ill.Dec. at 773, 422
N.E.2d at 981. However, it seems much more consistent to this
Court that, since the doctrine of implied indemnity developed
to remedy the harsh no-contribution rule, Heinrich, 93
Ill.Dec. at 546-47, 486 N.E.2d at 1381-82, it is therefore
logical that with the advent of the Contribution Act, the
purpose, and therefore the existence of implied indemnity is no
longer viable. Frazer, 99 Ill.Dec. at 738, 496 N.E.2d at 313.
This Court finds that contribution can achieve the same results
without the need for the artificial requirements of implied
indemnity. It is both more logical and simple that the
contribution principles of proportionate fault should govern
It is well established that contribution acts to apportion to
each defendant in a tort action his relative share of the
damages, while implied indemnity acts to shift liability to
another, not necessarily in proportion to the indemnitor's
responsibility for the injury. Holmes, 86 Ill.Dec. at 823,
475 N.E.2d at 1390. "Such an imposition [the total shifting of
the burden] in the so-called exceptional cases creates a scheme
according to which a tortfeasor's culpability bears no direct
relation to his burden of loss in cases involving vicarious
liability or strict `upstream liability' . . ." Id. Certainly
such an occurrence raises questions as to the equity of the
doctrine. As the Holmes court so well stated:
The effect of this scheme [implied indemnity] is to nullify the
equitable equation of the degree of responsibility for the
tortious acts and the burden of loss for the harm thereby
inflicted, thus undermining the basis upon which the right of
contribution, as well as the principles of comparative
negligence and comparative fault, rest.
Id. (emphasis added).
Nor is this Court persuaded by the argument that the
elimination of implied indemnity is somehow in contravention of
the policy behind strict liability. The policy underlying the
injured party's economic loss should be borne by the one who is
responsible for the creation of the risk, and who reaped the
profit from the product. Skinner v. Reed-Prentice Division
Package Machinery Co., 70 Ill.2d 1, 15 Ill.Dec. 829, 835,
374 N.E.2d 437, 443 (1977) cert. denied, 436 U.S. 946, 98 S.Ct.
2849, 56 L.Ed.2d 787 (1978). The plaintiffs are not required to
prove either privity or negligence. All parties from the
product manufacturer to the seller, are included. Coney v.
J.L.G. Industries, Inc., 97 Ill.2d 104, 73 Ill.Dec. 337, 342,
454 N.E.2d 197, 202 (1983). As was acknowledged in Skinner,
once the plaintiff's economic loss has been imposed on any of
the parties in the chain of distribution the strict liability
policy is met. 15 Ill.Dec. at 835, 374 N.E.2d at 443.
"Application of the Contribution Act to determine the
proportionate liability as between the defendants is not
contrary to the policies behind strict liability because the
liability as between the plaintiff and the defendants remain
strict." Frazer, 99 Ill. Dec. at 739, 496 N.E.2d at 314.
Therefore, this Court is persuaded that the passage of the
Contribution Act eliminates the need for "upstream" implied
indemnity. This Court FINDS that the Contribution Act achieves
fair and equitable results in the apportionment of fault
without imposing the artificial requirements, and total
shifting of responsibility, of implied indemnity. To permit the
remedies of implied indemnity to coexist with those of
contribution would be in contravention of the express purposes,
and not in keeping with the legislative history, of the
Contribution Act, namely to encourage settlements and apportion
For these reasons, the Motion of Westinghouse to dismiss Count
II of May's crossclaim is hereby GRANTED.
IT IS SO ORDERED.