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03/31/88 Northrop Corporation, v. Crouch-Walker

March 31, 1988

NORTHROP CORPORATION, THIRD-PARTY PLAINTIFF/APPELLANT

v.

CROUCH-WALKER, INC., THIRD-PARTY DEFENDANT/APPELLEE, AND M.W. POWELL COMPANY, THIRD-PARTY DEFENDANT/APPELLEE 1988.IL.464



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

APPEAL from the CIRCUIT COURT of COOK COUNTY, HONORABLE MYRON T. GOMBERG, Judge Presiding.

APPELLATE Judges:

JUSTICE PINCHAM delivered the opinion of the court. SULLIVAN and MURRAY, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM

Northrop Corporation (Northrop), a general construction company, filed a complaint alleging that Carter Hawley Hale Stores, Inc. (Carter Hawley) breached a construction contract with Northrop. Carter Hawley responded by filing a counterclaim against Northrop which alleged serious defects in the construction. In response to Carter Hawley's counterclaim, Northrop filed third-party complaints against two subcontractors, Crouch-Walker Corporation (Crouch-Walker) and M.W. Powell Company (Powell). Northrop here appeals the trial court's dismissal of its amended third-party complaints against Crouch-Walker and Powell.

In July 1974, Carter Hawley and Northrop entered into a contract for the construction of a Neiman Marcus retail specialty store. Northrop agreed to design, construct and install the exterior masonry wall panels and travertine work of the store. The contract between Carter Hawley and Northrop also provided that Carter Hawley was to either assign certain subcontracts to the contractor, Northrop, or require Northrop to enter into the subcontracts. Northrop agreed to supervise, administer and coordinate all work under the assigned subcontracts as if it were Northrop's own work.

Northrop entered into a subcontract with Crouch-Walker for the installation of the masonry, wall panel and travertine work of the store. Crouch-Walker guaranteed that it would install the work using the methodology set forth and in accordance with Northrop's general contract plans and specifications.

Northrop's complaint against Carter Hawley sought $29,000 due Northrop from Carter Hawley under the contract between them. Carter Hawley's amended counterclaim against Northrop alleged serious leaks in the roof, abnormal settling of the sidewalks and that Northrop failed to properly design, construct and install the wall panels and exterior travertine as Northrop had contracted.

Powell subcontracted with Northrop to provide the roofing, sheet metal and membrane waterproofing for the store. Northrop's third-party complaints against Crouch-Walker and Powell alleged that Crouch-Walker and Powell were solely responsible for any leaks in the construction of the Neiman Marcus store and were therefore liable to Northrop for any damages which Carter Hawley might recover from Northrop.

The pleadings which the trial court dismissed and which are at issue on this appeal are Northrop's amended third-party complaints which contain three counts directed against Crouch-Walker (counts I-III), and three parallel counts (counts IV-VI) against Powell for alleged breaches of written guaranties that the work would comply with Northrop's contract with Carter Hawley and alleged breaches of various written and implied warranties.

Counts I and IV of the amended third-party complaint alleged that in the event of any recovery by Carter Hawley against Northrop, such recovery would arise solely from the subcontractors' breach of a provision in the subcontracts, Article XXII, wherein Crouch-Walker and Powell each guaranteed that the work would be completed in strict accordance with the requirements of the general contract.

Counts I and V of Northrop's amended third-party complaint also alleged that each of the defects that Carter Hawley alleged in the design and construction of the Neiman Marcus store is the proximate result of the subcontractors' breaches of the subcontracts.

Counts II and V of Northrop's third-party complaint alleged that the subcontractors failed to perform the work in a good and workmanlike manner, or in a skillful and expeditious manner, and that the work did not constitute a complete and workable system.

Crouch-Walker and Powell each moved, pursuant to the Illinois Code of Civil Procedure, section 2-615 to dismiss Northrop's claims against them. The trial court held that Northrop's complaint was conclusory and did not comply with the requirements of specificity in pleading which the supreme court enunciated in Knox College v. Celotex Corporation (1981), 88 Ill. 2d 407. Although Northrop stated in the trial court that it sought recovery against the subcontractors on a theory of express contractual indemnity solely on the basis of alleged breaches of the guaranties and warranties contained in the subcontracts, the trial court concluded that Northrop actually sought to be indemnified from its own negligence by Crouch-Walker and Powell, and therefore failed to state a cause of action since Ill. Rev. Stat. 1985, ch. 29, par. 61 bars such indemnification. Northrop's earlier filed third-party complaint was dismissed by the trial court ...


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