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04/09/87 Anthony Bosio, v. the Branigar Organization

April 9, 1987

ANTHONY BOSIO, PLAINTIFF

v.

THE BRANIGAR ORGANIZATION, INC., DEFENDANT AND THIRD-PARTY, PLAINTIFF-APPELLANT (E. M. MELAHN CONSTRUCTION COMPANY, THIRD-PARTY DEFENDANT-APPELLEE; W. A.



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

Rakow & Associates, Ltd., Third-Party, Defendant)

506 N.E.2d 996, 154 Ill. App. 3d 611, 107 Ill. Dec. 105 1987.IL.466

Appeal from the Circuit Court of Kane County; the Hon. Michael F. O'Brien, Judge, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. NASH and UNVERZAGT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Branigar Organization, Inc. (Branigar), appeals from the dismissal of the breach-of-contract count of its third-party complaint against E.M. Melahn Construction Company (Melahn). The single issue raised is whether the contract provision which required Melahn to provide public liability insurance for Branigar's benefit was enforceable under a statute which makes indemnification agreements in construction contracts void and unenforceable.

Plaintiff, Anthony Bosio, an employee of Melahn's, filed a two-count complaint against Branigar alleging that he was injured while working on Branigar's premises when a ditch caved in. He alleged negligence and a violation of the Structural Work Act (Ill. Rev. Stat. 1977, ch. 48, par. 60 et seq.). Branigar filed a third-party complaint against W.A. Rakow & Associates, Ltd., the engineer which provided the specifications for the construction project, and later filed a third-party complaint against Melahn. The complaint against Melahn alleged that Branigar was entitled to indemnification and contribution from Melahn and, in count III, alleged that Melahn was obligated under their construction contract to defend and insure Branigar against plaintiff's suit. Branigar alleged that Melahn breached the contract by failing to defend and hold Branigar harmless.

A copy of the contract, dated December 19, 1977, was attached to the third-party complaint. The construction contract provided, in pertinent part:

"The CONTRACTOR further agrees that it will save and keep harmless the OWNER [Branigar] from any and all claims that may arise on the part of any of its employees, agents or servants, by reason of injury, death or any claim while in pursuit of this contract and that all employees, agents or servants of the CONTRACTOR shall in no manner be construed to be employees of the OWNER.

The CONTRACTOR shall furnish public liability insurance in the principal sum of $100,000.00 to $300,000.00 with insurance carrier thereon satisfactory to the OWNER, indemnifying and saving harmless the OWNER from any and all personal injury claims arising thereunder by reason of the performance of this contract."

Melahn filed a motion to dismiss in which it argued, in pertinent part, that the part of the agreement which required Melahn to provide public liability insurance indemnifying Branigar and saving it harmless, relied on by Branigar in its breach-of-contract count, is unenforceable under section 1 of "An Act in relation to indemnity in certain contracts" (Act) (Ill. Rev. Stat. 1985, ch. 29, par. 61). The court granted Melahn's motion to dismiss as to the indemnification and breach-of-contract counts. The court found that the contract provision relied on by Branigar was void under the statute.

Branigar maintains on appeal that the trial court erred in dismissing its breach-of-contract count against Melahn because construction contract provisions requiring a contractor to obtain liability ...


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