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05/26/88 Beverly Tarshes, As Adm'x v. Lake Shore Harley Davidson

May 26, 1988

BEVERLY TARSHES, AS ADM'X OF THE ESTATE OF BARRY TARSHES, DECEASED, PLAINTIFF-APPELLANT

v.

LAKE SHORE HARLEY DAVIDSON ET AL., DEFENDANTS AND THIRD-PARTY PLAINTIFFS-APPELLEES (WAGNER ELECTRIC



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

Company, Third-Party Defendant-Appellee)

524 N.E.2d 1136, 171 Ill. App. 3d 143, 121 Ill. Dec. 88 1988.IL.835

Appeal from the Circuit Court of Cook County; the Hon. James Traina, Judge, presiding.

APPELLATE Judges:

JUSTICE JOHNSON delivered the opinion of the court. McMORROW and LINN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON

This appeal arises from a product liability action in which plaintiff, Barry Tarshes, suffered personal injury in a motorcycle accident allegedly occasioned by a defect in the rear brake mechanism of his motorcycle. Plaintiff initiated this action against defendants, Harley Davidson Motor Company, Inc. (the motorcycle manufacturer), and Lake Shore Harley Davidson (the motorcycle supplier). Defendants brought a third-party action against the third-party defendant, Wagner Electric Company (hereinafter referred to as Wagner), the rear brake manufacturer. Approximately five years later, plaintiff died of causes unrelated to the accident, and the administratrix of his estate, Beverly Tarshes, was substituted as plaintiff. (For simplicity, Barry Tarshes, deceased, will be referred to as plaintiff herein.) The jury entered a verdict against plaintiff upon which the trial court entered judgment. Subsequently, the trial court denied plaintiff's motion for a new trial and this appeal follows.

We affirm.

The record reveals that at approximately 1 a.m. on June 11, 1977, plaintiff was riding his 1977 Harley-Davidson FXE Superglide motorcycle and collided with the rear of an automobile driven by Raymond Host. Host testified that he had been stopped and waiting at a traffic light at the intersection of California and Howard Streets, in Chicago, for between one and two minutes before the collision. An eyewitness to the accident, Sheri Hastings, testified that she saw plaintiff's motorcycle traveling 10 miles per hour as it approached Host's car. She further testified that the motorcycle attempted to drive between Host's car and several parked cars along the curb of Howard Street. She saw plaintiff's left handlebar strike Host's car and saw plaintiff fall from his bike. As a result of the accident plaintiff sustained injuries to his lower left leg.

Plaintiff brought suit against defendants, alleging that the rear brakes of the motorcycle failed and caused the accident. Based on this contention, defendants brought a third-party action against the rear brake manufacturer, Wagner.

Since this case presents evidentiary issues, the testimony relating to such issues will be discussed in the arguments. I

Plaintiff's first contention is that the trial court committed reversible error by denying his motion to sever the third-party action. He argues that no litigable issue existed between the principal defendants and Wagner on the complaint for indemnity. Plaintiff goes on to urge that the presence of Wagner in the principal trial was confusing to the jury, collusive and prejudicial to his case.

Plaintiff relies on Nogacz v. Proctor & Gamble Manufacturing Co. (1975), 37 Ill. App. 3d 636, and Illinois Bell Telephone Co. v. Dynaweld, Inc. (1979), 70 Ill. App. 3d 387, for the proposition that a third-party defendant may only raise those defenses to plaintiff's claim that a defendant third-party plaintiff has failed to raise.

This court held, in Nogacz v. Procter & Gamble Manufacturing Co. (1975), 37 Ill. App. 3d 636, that an indemnitor who has refused the tendered defense of the principal defendant and, thereby, voluntarily excluded himself from the principal action, is estopped, in a subsequent action for indemnification, from raising those defenses to the plaintiff's claim which were available to the principal defendant.

In Illinois Bell Telephone Co. v. Dynaweld, Inc. (1979), 70 Ill. App. 3d 387, we considered the situation where an indemnitor who had refused the tendered defense of the principal defendant in the preceding action sought indemnification through a third-party action from a second indemnitor. There, we held that the second indemnitor was not estopped by the first indemnitor's refusal of the tendered defense of the initial action.

Thus, plaintiff not only misstates the rule of law espoused in these cases but also places mistaken reliance on these authorities. Clearly, Nogacz and Bell are distinguishable from the instant case in that they both involve a refused tender of defense. Such is not the situation before us.

In the instant action, Wagner admitted that if it placed into the stream of commerce an unreasonably dangerous brake system which proximately caused plaintiff's injury, it would be required to indemnify the principal defendants. Plaintiff contends that this "admission" eliminates any litigable issue that may have existed between the principal defendants and Wagner. Again we disagree with plaintiff.

Indeed, we find the instant action to be precisely the type of situation for which the third-party practice was designed. Wagner has not admitted liability. It still remains to be resolved (1) whether an unreasonably dangerous condition existed in Wagner's brake ...


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