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01/22/87 Herbert P. Folkers, Jr., v. Drott Manufacturing

January 22, 1987

HERBERT P. FOLKERS, JR., ET AL., PLAINTIFFS

v.

DROTT MANUFACTURING COMPANY, ET AL., DEFENDANTS (IMPERIAL CRANE SERVICES, INC., THIRD-PARTY, PLAINTIFF-APPELLANT; CLARK PAINTING COMPANY, THIRD-PARTY DEFENDANT-APPELLEE)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

504 N.E.2d 132, 152 Ill. App. 3d 58, 105 Ill. Dec. 263 1987.IL.42

Appeal from the Circuit Court of Cook County; the Hon. Edwin M. Berman, Judge, presiding.

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. McMORROW, P.J., and JOHNSON, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

Imperial Crane Services, Inc. (Imperial), brings this appeal challenging two orders issued by the trial court in connection with Imperial's third-party complaint against Clark Painting Company (Clark). Imperial filed its third-party complaint against Clark after Imperial was sued by Herbert and Carolyn Folkers. Herbert was an employee of Clark and sustained injuries while operating a crane leased by Imperial to Clark. In its complaint, Imperial sought indemnity from Clark for any damages that Imperial might be ordered to pay as a result of the Folkers' lawsuit.

Upon Clark's motion, the trial court dismissed all four counts of Imperial's third amended, third-party complaint against Clark. In addition, the trial court subsequently refused to vacate the order and also refused to permit Imperial to file a fourth amended, third-party complaint against Clark.

Imperial now seeks reversal of the trial court's orders. Specifically, Imperial contends that the trial court erred in: (1) ruling that counts I through IV of Imperial's third amended, third-party complaint against Clark fail to state a cause of action under the common law doctrines of express and implied indemnity, *fn1 and (2) refusing to subsequently vacate that order or, in the alternative, refusing to allow Imperial to file a fourth amended, third-party complaint against Clark.

We affirm in part, and reverse and remand in part.

Background

This appeal follows the trial court's ruling that Imperial's third amended, third-party complaint fails to state a cause of action under Illinois law. Accordingly, we must accept as true all of Imperial's well pleaded allegations and must draw all reasonable inferences in its favor. Cook v. Askew (1975), 34 Ill. App. 3d 1055, 341 N.E.2d 13.

Imperial's complaint is comprised of four counts. Count I is based on an implied-indemnity theory. In count I, Imperial avers that plaintiffs, Herbert and Carolyn Folkers, have instituted an action seeking damages from Imperial for personal injuries Herbert sustained while operating a crane owned by Imperial and leased to Clark, Herbert's employer. In the Folkers' complaint, Imperial is charged, inter alia, with negligently repairing the crane in breach of its duty to maintain the crane in proper working condition. This negligent repair, according to the Folkers' complaint, allegedly resulted in Herbert's injury.

Count I further states that prior to Herbert's accident, Imperial and Clark entered into a "Crane Rental Contract" (the rental contract). Imperial claims that the crane involved in Herbert's accident was in good operating condition on August 9, 1977, the date on which the rental contract was entered into.

Imperial contends that the crane was rented to Clark for nonconstruction work purposes only and that the crane had been used by Clark in its plant yard prior to Herbert's accident. Imperial points out that under the rental contract, specifically paragraph 2 of section 15, Clark assumed sole custody and control of the crane and affirmatively undertook to maintain the crane throughout the life of the rental contract. Imperial further asserts that the accident causing Herbert's injuries was not the result of Imperial's negligent repairs (prior to entering into the rental contract), but instead was the result of Clark's failure to repair and maintain the crane after August 9, 1977, pursuant to its obligations under paragraph 2, section 15 of the rental contract.

Imperial argues that based on the foregoing, it is a passive tortfeasor with respect to the Folkers and that Clark, who had sole custody and control of the crane for four months prior to the accident, is the active tortfeasor whose acts caused the injury to Herbert Folkers. With that being the case, Imperial seeks recovery from Clark for any judgment that may be levied against it as a result of the Folkers' action.

Count II of Imperial's complaint seeks recovery based on an express-indemnity theory. Imperial asserts that under the rental contract, Clark expressly undertook to indemnify and hold harmless Imperial from "all liabilities, claims . . . for bodily injury . . . occasioned by the operation . . . of . . . the equipment . . . during the rental period . . . while said equipment . . . is in the possession of, under the custody and control of Lessee (Clark) . . . made by any person . . . including employees . . ...


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