plaintiff from asserting the limitations bar, but as in their
contract claim, this contention is without merit.
Plaintiff, as previously discussed, did not "own" a cause of
action for declaratory judgment until September 16, 1987.
Because limitations ran on defendants' negligence claim in
December of 1982, ¶ 13-207 would not be applicable.
Accordingly, the Court finds that this counterclaim, too, must
General and Austin vigorously assert that even if this Court
should find the Georgia limitations controlling, they have
been equitably tolled by plaintiff's conduct. Defendants urge
that Venturi fraudulently "concealed" its allegedly defective
work by pouring concrete over it. (Defendants'
Memorandum, p. 17). However, to label this activity
"fraudulent," under the circumstances, strains the bounds of
credulity. Inasmuch as this project was a continuous, 24
hour-a-day "slip-form" operation, Venturi was obliged to pour
the concrete — in fact, that was the only way to complete the
Because the dispositive statutes of limitation are
Georgia's, the Court, under the most significant contacts
test, finds it appropriate to apply Georgia law regarding
equitable tolling. Fraud may be actual or constructive. Actual
fraud consists in any kind of artifice by which another is
deceived. Constructive fraud consists in any act of omission
or commission contrary to legal or equitable duty, trust or
confidence justly reposed, which is contrary to good
conscience and operates to the injury of another. Shipman v.
Horizon Corporation, 245 Ga. 808, 267 S.E.2d 244 (1980). Actual
fraud tolls the statute of limitations, constructive fraud does
In the instant case it is clear, even assuming defendants'
assertions are true, that Venturi at best was guilty only of
constructive fraud. It was under a duty to cover the steel
with concrete, which it did. It therefore cannot be seriously
argued that its sole purpose in pouring the concrete was to
create an artifice to conceal its allegedly negligent acts
from General and Austin. For this reason, the Court finds that
the Georgia statutes were not tolled by Venturi's actions, and
thus applying the borrowing act, both defendants' contract and
negligence claims are barred in this forum.
Illinois Consumer Fraud and Deceptive Business Practices Act
The defendants allege, in Count III, a claim for statutory
fraud based on the Illinois Consumer Fraud and Deceptive
Business Practices Act. S.H.A. ch. 121-1/2 § 261 et seq.
Plaintiff Venturi strongly urges this Court to find that the
Act has no extraterritorial application, and thus defendants
have failed to state a claim. The Court need not reach that
While the Court feels that the parties and occurrence in
question probably come within the purview of the Act, it finds
that defendants' counterclaim nevertheless fails to state a
claim. A course of deceptive conduct does not state a claim
under the Act unless trade practices addressed to the market
generally or consumer protection concerns are involved.
Heritage Ins. Co. v. First Nat. Bank of Cicero, 629 F. Supp. 1412,
1419 (N.D.Ill. 1986), (following Newman-Green, Inc. v.
Alfonzo-Larrain, 590 F. Supp. 1083 (N.D.Ill. 1984). Heritage
held that the Act requires some sort of "public" injury. To
hold otherwise, the Court opined, "`would effectively supplant
Illinois' common law of contracts and fraud.'" Heritage, supra,
id. As one Illinois court has written, ". . . the Act is
intended to reach practices of the type which affect consumers
generally and is not available as an additional remedy to
redress a purely private wrong." Frahm v. Urkovich, 113 Ill. App.3d 580,
69 Ill.Dec. 572, 576, 447 N.E.2d 1007, 1011 (1983).
[Emphasis added.] See also Exchange Nat. Bank v. Farm Bureau
Life Ins., 108 Ill. App.3d 212, 63 Ill.Dec. 884,
438 N.E.2d 1247 (1982).
In the case at bar, only a private wrong has been alleged.
There are no allegations of any pattern of conduct by Venturi
which would indicate that it routinely negligently constructs
buildings or breaches contracts.
While, as defendants urge, it is true that Illinois does have
an interest in regulating contracts made by firms doing
business within its borders, the Court does not believe that
the subject matter of this case reaches the dignity of
affecting consumers generally, within the State. For these
reasons, the Court finds that the Act is not applicable in
this instance, and accordingly holds that this counterclaim
must also be dismissed.
General and Austin also bring a claim for express indemnity
pursuant to the contract entered into between Venturi and
Austin. Venturi strongly urges the Court to find the express
indemnity clause void as against public policy in accordance
with S.H.A. ch. 29, § 61 or Ga.Code Ann. § 13-8-2(b). Both the
Illinois and Georgia statutes void indemnity clauses which
purport to indemnify a tortfeasor from its own acts of
Applying either statute, the key question is whether the
clause purports to indemnify a promisee from its own solely
negligent acts. In this case, the contractual clause at issue
states that Venturi is liable,
. . for property damage, sustained by any other
person or corporation whatsoever . . . caused,
directly or indirectly by any act or
omission . . . on the part of the subcontractor.
It is clear from the language of the indemnity clause then
that Venturi is liable not for Austin's acts, but rather its
own. Thus, neither the Georgia or Illinois statutes would be
applicable, and for that reason, the Court finds that the
indemnity clause is valid and enforceable.
Perhaps anticipating this conclusion, Venturi also argues
that defendants are now barred from enforcing the indemnity
clause because they failed to assert the Georgia statutes of
limitation in bar of Dixie's claims against them. See GAF Corp.
v. Tolar Const. Co., 246 Ga. 411, 271 S.E.2d 811 (1980).
(Promisee not entitled to indemnification if promisee had
defense available which would have defeated primary claim, but
failed to assert it.) Illinois appears to have no such
The Court feels the GAF decision is distinguishable because
it involved a case where the owner actually sued the general
contractor, a situation not present here. Furthermore, it was
the contract between Austin and Dixie that gave rise to Dixie's
claim and it may well have been that the limitations defense
was not available to Austin at the time of Dixie's claim. In
any event, the Court finds that Austin and General's claim for
express indemnity is not barred in the instant suit.
The defendants additionally bring a counterclaim for implied
indemnity which Venturi asserts is no longer available in
Illinois. Without going into detail, suffice it to say that
this Court is intimately acquainted with the state of flux in
Illinois courts on the question of implied indemnity premised
on vicarious liability. As defendants correctly note,
Heinrich v. Peabody International, 117 Ill.2d 162, 109 Ill.Dec.
821, 510 N.E.2d 889 (Ill. 1987), did not decide that
question.*fn4 Following plaintiff's urging, the Court will
apply Rozycke v. Sroka, 3 Ill. App.3d 741, 279 N.E.2d 155
(1972) and assume that Georgia law is the same as Illinois law
on this issue. Accordingly, the Court finds that the defendants
state a claim for implied indemnity as the law now stands in
At the beginning of their brief, defendants attempt to have
plaintiff's Motion treated as one for summary judgment under
Rule 56, F.R.Civ.Pro. because both sides submitted affidavits.
In arriving at its decision, the Court did not consider the
affidavits, as it deemed them unnecessary for the purposes of
the Motion. Therefore, this matter was not treated as a motion
for summary judgment. Furthermore, all arguments
of either side not directly addressed in this Memorandum
should be considered rejected. For the reasons stated above,
plaintiff's Motion to Dismiss (Document No. 13) is hereby
GRANTED in part and DENIED in part, as follows:
1. Plaintiff's Motion is GRANTED with respect to
defendants' contract, tort, and statutory
fraud claims (Counts I, II, and III
respectively), and said counts are hereby
DISMISSED with prejudice.
2. Plaintiff's Motion is DENIED with respect to
defendants' express indemnity and implied
indemnity counterclaims (counts IV and V,
IT IS SO ORDERED.