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09/22/87 American President Lines, v. American President Lines

September 22, 1987

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION ILLINOIS CENTRAL GULF RAILROAD, PLAINTIFF-APPELLANT

v.

AMERICAN PRESIDENT LINES, INC., DEFENDANT AND COUNTERPLAINTIFF-APPELLANT (GENERAL MOTORS



Corporation, Defendant and

Counterdefendant-Appellee)

515 N.E.2d 242, 161 Ill. App. 3d 733, 113 Ill. Dec. 433

Appeal from the Circuit Court of Cook County; the Hon. Thomas E. Hoffman, Judge, presiding. 1987.IL.1401

APPELLATE Judges:

PRESIDING JUSTICE SCARIANO delivered the opinion of the court. STAMOS and HARTMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO

William Kratky filed a claim against the Illinois Central Gulf Railroad Company (hereinafter ICG) for personal injuries he sustained while in the course of his employment. After settling Kratky's claim with him, ICG commenced the instant action against American President Lines

In ICG's second amended complaint, it added GM as a defendant, also predicated on the theory of implied indemnity. APL thereafter filed a cross-claim against GM, this time premised on the theory of express liability. On September 30, 1986, the circuit court dismissed both the ICG and the APL claims filed against GM, holding the ICG had not pleaded

a sufficient pretort relationship with GM to state a cause of action for implied indemnity. The court also held that even if APL were found liable it would not be entitled to indemnity from GM. The action by ICG against APL remains pending in the circuit court. Both ICG and APL have appealed the circuit court's order, which contained the requisite Rule 304(a) finding. 87 Ill. 2d R. 304(a).

On or before February 1, 1978, APL furnished GM with a container into which GM loaded certain tractor parts and forwarded it from its Hudson, Ohio, facility to APL's Baltimore, Maryland, container yard. The contract of carriage was represented by an intermodal bill of lading issued by APL, specifying Baltimore, Maryland, as the port of loading; Oakland, California, as the seaport of exit; and Singapore as the port of discharge. The bill also referred to APL as the "ocean carrier," and GM as shipper and consignee of the goods. The first leg of the shipment was undertaken by an inland carrier, Conrail, which issued a waybill that identified APL as the shipper and consignee of the cargo. Conrail transported the container to Harvey, Illinois, where it was transferred to the ICG. Conrail is not a party to any of these actions.

Somewhere en route between Harvey, Illinois, and a side track in Munger, Illinois, 35 miles west of Chicago, the cargo in the sealed container shifted, causing its doors to bulge. This led to Kratky's inspection of the container on February 11, 1978, when the doors burst open, seriously injuring him. Kratky filed a claim against ICG under the Federal Employer's Liability Act , which was settled for $260,000. This action arises out of ICG's claim that it is entitled to indemnity for its payment to Kratky.

Opinion

The parties agree that because Kratky's injury was sustained prior to March 1, 1978, neither the Illinois Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1985, ch. 70, par. 301 et seq.) nor the judicial adoption of contribution in Illinois (Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437, cert. denied (1978), 436 U.S. 946, 56 L. Ed. 2d 787, 98 S. Ct. 2849) is applicable. It should also be noted that since this cause comes before us on a judgment which was awarded on the pleadings pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-615), we must take as true all facts properly pleaded and all reasonable inferences which can be drawn therefrom, and unless it clearly appears that under no set of facts is a claimant entitled to recovery, a dismissal on the pleadings is error. Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 187, 380 N.E.2d 790; Triangle Sign Co. v. Weber, Cohn & Riley (1986), 149 Ill. App. 3d 839, 501 N.E.2d 315. I

In order to state a cause of action for implied indemnity, ICG "must allege: (1) a pretort relationship between the third-party plaintiff and the third-party defendant; and (2) a qualitative distinction between the conduct of the third-party plaintiff and the third-party defendant." (Van Slambrouck v. Economy Baler Co. (1985), 105 Ill. 2d 462, 469, 475 N.E.2d 867.) The parties agree that ICG's complaint satisfies the second prong of the Van Slambrouck test. Accepting all well-pleaded facts as true, ICG did plead a cause of action according to which GM was more negligent than ICG. GM's ...


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