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07/20/88 Paul Thatcher Et Al., v. Commonwealth Edison

July 20, 1988

PAUL THATCHER ET AL., APPELLEES

v.

COMMONWEALTH EDISON COMPANY ET AL., APPELLANTS

"THE TORTFEASOR WHO SETTLES WITH A CLAIMANT PURSUANT TO PARAGRAPH (C) IS DISCHARGED FROM ALL LIABILITY FOR ANY CONTRIBUTION TO ANY OTHER TORTFEASOR." (ILL. RE

v.

STAT. 1979, CH. 70, PAR. 302(D).) SECTION 2(E) PROVIDES:



Before trial, the plaintiff entered into a settlement agreement with Com Ed and Schnider. The trial court found that the settlement was in "good faith" under section 2(c) of the Contribution Act (Ill. Rev. Stat. 1979, ch. 70, par. 302(c)) and dismissed Com Ed's counts for contribution against Dow in accordance with sections 2(d) and (e) of the Contribution Act (Ill. Rev. Stat. 1979, ch. 70, pars. 302(d), (e)).

SUPREME COURT OF ILLINOIS

527 N.E.2d 1261, 123 Ill. 2d 275, 123 Ill. Dec. 486 1988.IL.1120

Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Tazewell County, the Hon. Ivan L. Yontz, Judge, presiding.

APPELLATE Judges:

JUSTICE WARD delivered the opinion of the court. JUSTICE STAMOS took no part in the consideration or decision of this case. JUSTICE MILLER, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WARD

The plaintiff, Paul Thatcher, brought an action in the circuit court of Tazewell County against the defendants, Commonwealth Edison Company (Com Ed) and Dow Chemical Company (Dow), to recover for personal injuries he sustained at a plant of Com Ed while working with a high-pressure water hose designed and manufactured by Dow. Com Ed filed a third-party action against Dow seeking contribution under an "An Act in relation to contribution among joint tortfeasors" (Ill. Rev. Stat. 1979, ch. 70, par. 301 et seq.) and indemnity under the common law doctrine of implied indemnity. The third-party complaint asserted, inter alia, a strict products liability theory of recovery. Com Ed entered into a settlement with the plaintiff and the trial court dismissed Com Ed's contribution claim against Dow pursuant to section 2(e) of the Contribution Act (Ill. Rev. Stat. 1979, ch. 70, par. 302(e)). The trial court also dismissed Com Ed's indemnity claim, stating that with the adoption of contribution among joint tortfeasors (see Ill. Rev. Stat. 1979, ch. 70, par. 302 et seq.; Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1), actions for implied indemnity were abolished. The appellate court, with one Justice Dissenting, affirmed. (147 Ill. App. 3d 534.) We granted Com Ed's petition for leave to appeal under our Rule 315. 107 Ill. 2d R. 315.

On January 29, 1981, the plaintiff, Paul Thatcher, was employed by Schnider, Inc., as a boilermaker. Under a contract between Com Ed and Schnider, the plaintiff was sent to Com Ed's power plant to clean condenser tubes. Normally Dow's employees performed this work, but because of a jurisdictional union dispute, the actual cleaning work was being performed by the boilermaker's union, of which the plaintiff was a member. To clean the tubes, the plaintiff was required to stand on a scaffold and insert a large hose, which, as stated, was designed and manufactured by Dow, into the mouth of the tube. When the operator of the equipment would activate a foot pedal, which was placed on the scaffold, the hose under high pressure would propel a stream of water into the tube. The plaintiff was injured when the scaffold he was standing on "wobbled and rocked," he said, causing him, without his intending to do so, to activate the foot pedal. The stream of water from the hose struck his hand, causing injuries.

The plaintiff filed a four-count complaint in the circuit court of Tazewell County against Com Ed and Dow. Counts I and III set out a cause of action against Com Ed and Dow under the Structural Work Act (Ill. Rev. Stat. 1979, ch. 48, pars. 60 through 69); count II alleged Com Ed was negligent in providing the plaintiff with equipment without sufficient safety devices; and count IV charged Dow with negligence in the design and manufacturing of the hose.

Com Ed filed an action against Dow seeking contribution under the Contribution Act (Ill. Rev. Stat. 1979, ch. 70, par. 301 et seq.) and indemnity predicated on the common law doctrine of implied indemnity. The third-party complaint pleaded products liability as the ground for recovery, stating that the hose the plaintiff was using had been manufactured by Dow and was in an unreasonably dangerous condition at the time it left Dow's control.

Section 2(d) of the Act provides:

"A tortfeasor who settles with a claimant pursuant to paragraph (c) is not entitled to recover contribution from another tortfeasor whose liability is not extinguished by the settlement." (Ill. Rev. Stat. 1979, ch. 70, par. 302(e).)

The trial court also dismissed Com Ed's claim for indemnity against Dow, holding that all implied indemnity actions were abolished by the Contribution Act.

Com Ed appealed the dismissal of its indemnity claim against Dow, and the appellate court affirmed, with one Justice Dissenting. The court stated that "the Contribution Act did away with implied indemnity among joint tort feasors and substituted contribution in its place." (147 Ill. App. 3d 534.) We ...


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