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03/30/87 Liberty Mutual Insurance v. Aluminum Company of

March 30, 1987





507 N.E.2d 125, 154 Ill. App. 3d 341, 107 Ill. Dec. 461 1987.IL.384

Appeal from the Circuit Court of Cook County; the Hon. Arthur L. Dunne, Judge, presiding.


JUSTICE BUCKLEY delivered the opinion of the court. CAMPBELL and O'CONNOR, JJ., concur.


On August 18, 1967, H. H. Robertson Company (Robertson) entered into a sale agreement with the Aluminum Company of America (Alcoa) and Cupples Products Corporation (Cupples) to purchase all of the stock and assets of Cupples. Alcoa sold its ownership interests in Cupples pursuant to an order entered by United States district court in St. Louis. This order required Alcoa to divest itself of all ownership interests in Cupples.

Prior to entering into the sale agreement, Alcoa had entered into a contract with Tishman Company, dated September 20, 1965, relating to the construction of a curtain wall for the John Hancock Center in Chicago. In addition, Alcoa had entered into a subcontract with Cupples dated April 1, 1967, for performance of work on the curtain wall.

Under the terms of the sale agreement, Robertson assumed all of Cupples' obligations under the subcontract for work not completed prior to the closing date of the agreement. Alcoa expressly retained liability for any warranty or guarantee made concerning the John Hancock Center.

In 1982, Frank Whitmer, the owner of a condominium in the Hancock Center, filed a multiple-count personal injury complaint in the circuit court of Cook County. Count I of the complaint was directed against Cupples, which had become a division of Robertson. This count alleged that Cupples negligently fabricated and installed the curtain wall, allowing automobile fumes to enter Whitmer's residence, causing him personal injuries.

Thereafter, Liberty Mutual Insurance Company (Liberty), Robertson and Cupple's insurer, filed a declaratory judgment action against Alcoa. This action sought a declaration that Alcoa, pursuant to the terms of the sale agreement, retained all liability for any and all claims with respect to the John Hancock project. Specifically, Liberty alleged that subparagraph 8of the sale agreement and section 2(j) of the Hancock subcontract relieved Robertson of any potential liability arising out of the completion of the Hancock project. The complaint also sought recovery and reimbursement from Alcoa for all expenses incurred by Liberty in defending the Whitmer action.

Alcoa and Liberty both moved for summary judgment. The court denied Alcoa's motion and granted Liberty's motion, finding no obligation on the part of Liberty to defend Cupples or Robertson in the Whitmer action. The court ordered Alcoa to reimburse Liberty for its costs and attorney fees incurred in defending the underlying action. Alcoa appeals the trial court's orders denying its motion for summary judgment and granting Liberty's motion for summary judgment, attorney fees and costs.

We first consider whether entry of summary judgment for Liberty was proper in this case. Summary judgment should be entered only if the pleadings, depositions, admissions, and affidavits on file show that no genuine issue of fact exists and the moving party is entitled to judgment as a matter of law. (Beals v. Huffman (1986), 146 Ill. App. 3d 30, 36, 496 N.E.2d 281, 286.) The court must strictly construe the evidence against the moving party and liberally in favor of the nonmoving party. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871.) Since the party opposing the motion has the right to a trial on material issues of fact, the motion should be granted only when the right to summary judgment is clear and free from doubt. (Beverly Bank v. Alsip Bank (1982), 106 Ill. App. 3d 1012, 1016, 436 N.E.2d 598, 603.) With these general rules in mind, we consider the merits of Alcoa's arguments.

It is Alcoa's position that the court erroneously granted summary judgment for Liberty because there was a genuine issue of fact concerning Robertson's potential liability. Alcoa points out that the language contained in subparagraph 8of the Alcoa-Robertson sales agreement, and section 2(j) of the Hancock subcontract, does not exculpate Robertson for all liabilities in connection with Cupples' construction work on the Hancock Center. On the contrary, Alcoa argues that these provisions, where applicable, only relieve Robertson of ...

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