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01/13/87 Wheeling Trust & Savings v. Tremco Incorporated Et Al.

January 13, 1987

WHEELING TRUST & SAVINGS BANK ET AL., PLAINTIFFS-APPELLANTS

v.

TREMCO INCORPORATED ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

505 N.E.2d 1045, 153 Ill. App. 3d 136, 106 Ill. Dec. 254 1987.IL.14

Appeal from the Circuit Court of Cook County; the Hon. Thomas J. O'Brien, Judge, presiding.

APPELLATE Judges:

Justice Stamos delivered the opinion of the court. Scariano, P.J., and Bilandic, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS

Plaintiffs appeal from the circuit court's rulings dismissing plaintiffs' contract/warranty and tort claims against defendants. Plaintiffs appeal alleging that: (1) the trial court erred in ruling that plaintiffs were not third-party beneficiaries to contracts between defendants (materialmen) and subcontractors; (2) the trial court erred in dismissing plaintiffs' tort claims against materialmen because plaintiffs lacked an adequate contract remedy against materialmen; and (3) the trial court's rulings, denying plaintiffs recovery under contract/warranty and tort, violated article I, section 12, of the Illinois Constitution.

On March 1, 1979, Richard J. Brown, d/b/a Cambridge Plaza, entered into a contract with Quin-C, Inc., a general contractor, to oversee and direct the design and construction of the Cambridge Plaza Office Building (hereinafter office building). On the same day, Richard J. Brown assigned the rights under his contract with Quin-C to plaintiffs, Wheeling Trust & Savings Bank and trustee under trust 78 -- 522 and Cambridge Plaza Limited Partnership.

Quin-C hired two subcontractors, Paulwin Associates, Inc. (hereinafter Paulwin), and Architectural Products. Paulwin furnished all glass and glazing work, including furnishing and erecting the exterior curtain walls and/or exterior windows. Paulwin then hired two materialmen, Kawneer Company, Inc. (hereinafter Kawneer), and Tremco, Inc. (hereinafter Tremco). Kawneer was hired to supply exterior curtain walls and windows for the project. Tremco was hired to supply all caulking and taping materials for the installation of the exterior windows. Architectural Products furnished all of the exterior precast concrete work. Architectural Products then hired Swanson Cast Stone Company, which thereafter changed its name to R & R Precast Co. (hereinafter Swanson), as a materialman to supply the exterior precast concrete.

Quin-C and its subcontractors constructed the office building in January of 1980, and the plaintiffs immediately occupied the building. In June of 1981, the glass windows began to develop streaks below the exterior precast concrete. The plaintiffs notified Quin-C, Paulwin, Kawneer, Architectural Products, Tremco, and Swanson of the problem, requesting that it be rectified. Despite remedial work, the "problem began to intensify in both scope and severity."

The plaintiffs filed the instant lawsuit on May 23, 1983, against Quin-C, Paulwin, Tremco, Kawneer, Architectural Products, and Swanson. Plaintiff made the following claims: (1) breach of contract and breach of implied warranties against Quin-C; (2) breach of third-party beneficiary contract and breach of implied warranties against Paulwin; (3) breach of third-party beneficiary contract and breach of implied warranties against Architectural Products; (4) breach of Uniform Commercial Code warranties and strict liability against Tremco; (5) breach of UCC warranties and strict liability against Swanson.

Subsequently, Quin-C and Tremco answered the complaint with general denials. Paulwin, Architectural Products, Kawneer, and Swanson moved to dismiss all claims against them. On October 18, 1984, a hearing on the motions to dismiss was held before Judge William R. Quinlan of the circuit court of Cook County. Judge Quinlan dismissed the following claims: (1) breach of third-party beneficiary contract against Paulwin; (2) breach of implied warranties against Architectural Products; and (3) strict liability claims against Kawneer and Swanson. Plaintiffs, later, moved for reconsideration of Judge Quinlan's rulings.

On June 12, 1985, plaintiffs filed a 14-count amended complaint. The amended complaint made the following claims: (1) breach of contract and implied warranties against Quin-C; (2) breach of express and implied warranties and negligence against Paulwin; (3) breach of express and implied warranties and negligence against Architectural Products; (4) strict liability against Tremco; (5) breach of implied warranties, strict liability, and negligence against Kawneer; and (6) breach of implied warranties, strict liability, and negligence against Swanson.

Quin-C answered the amended complaint with general denials. Paulwin, Architectural Products, Tremco, Kawneer, and Swanson filed motions to dismiss all claims against them in plaintiffs' amended complaint. On November 5, 1985, a hearing was held on plaintiffs' motion to reconsider Judge Quinlan's earlier order and on defendants' motions to dismiss. Judge O'Brien denied plaintiffs' motion to reconsider and dismissed all counts in favor of movants, Paulwin, Architectural Products, Tremco, Kawneer, and Swanson.

This appeal is brought solely as to the rulings dismissing the materialmen, Tremco, *fn1 Swanson, and Kawneer. Judge O'Brien's rulings dismissing the tort claims against these defendants were based upon his interpretation of the definition and application of economic loss damages in tort actions. He ruled that the nature of the damages, streaking of windows and etching of the glass, was not the type of injury that could sustain an action in tort. He also determined that plaintiffs did have an adequate contract remedy. In dismissing plaintiffs' contract/warranty claims against materialmen Kawneer and Swanson, Judge O'Brien ruled that plaintiffs, as owners of the office building, were not third-party beneficiaries of the contracts between materialmen and subcontractors. Judge O'Brien reasoned that the mere listing of the destination ...


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