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09/12/88 Eric Van Berkum, v. Tony Christian Et Al.

September 12, 1988





530 N.E.2d 52, 175 Ill. App. 3d 62, 125 Ill. Dec. 134 1988.IL.1361

Date Filed: September 12, 1988; Modified Opinion Filed October 31, 1988.

Appeal from the Circuit Court of Cook County; the Hon. Harry S. Stark, Judge, presiding.


JUSTICE O'CONNOR delivered the opinion of the court. CAMPBELL, P.J., and BUCKLEY, J., concur.


Tony Christian appeals from dismissal of a third-party claim for contribution and implied indemnity, brought against co-defendants in an underlying action for personal injuries brought by Eric Van Berkum. For the reasons stated below, we affirm.

On September 7, 1981, Eric Van Berkum was a passenger on a boat owned and operated by Tony Christian. While docking the craft at Navy Pier, Christian attempted to slow down by shifting the engine into reverse. The boat failed to shift and continued forward, causing Van Berkum to fall and catch his hand between the boat and the wall of the pier. Van Berkum suffered severe injuries as a result.

On October 21, 1981, Van Berkum filed a complaint against Christian, alleging negligence in the operation and maintenance of the boat and demanding $250,000 in damages. On September 6, 1983, Van Berkum amended his complaint to include Cigarette Racing Team, Brunswick Corporation and Mer Cruiser, a division of Brunswick, and Presolite Company, a division of Eltra Corporation, and Allied Chemical Corporation (manufacturing defendants), alleging strict products liability due to improper design of the gear-shifting mechanism on Christian's boat. On December 21, 1983, Christian filed a third-party complaint for contribution and implied indemnity against the manufacturing defendants, alleging negligence and strict liability. On September 9, 1985, Van Berkum filed a second amended complaint, adding a count against Christian alone, based on Federal maritime law, alleging that Christian had breached a duty to provide a safe and seaworthy boat. Subsequently, Van Berkum received a $20,000 settlement from the manufacturing defendants, who then moved to dismiss Christian's third-party complaint.

On December 16, 1985, in a hearing on the motion to dismiss, the trial court ruled that the settlement between Van Berkum and the manufacturing defendants satisfied the good-faith requirement of section 2(c) of "An Act in relation to contribution among joint tortfeasors" (Ill. Rev. Stat. 1987, ch. 70, par. 302(c)) (the Contribution Act). The trial court then dismissed Christian's third-party complaint, ruling that both contribution and implied indemnity were barred by section 2(d) of the Contribution Act, which states that a "tortfeasor who settles with a claimant [in good faith] is discharged from all liability for any contribution to any other tortfeasor." (Ill. Rev. Stat. 1987, ch. 70, par. 302(d).) Christian subsequently appealed. On March 17, 1986, Christian and Van Berkum reached a settlement in the amount of $122,000. Van Berkum is not a party to the instant appeal.

The principal issue is whether the Illinois Contribution Act bars actions for implied indemnity against settling joint tortfeasors, an issue that was unsettled at the time the instant appeal was filed. The issue was addressed, however, in two recent Illinois Supreme Court opinions, Thatcher v. Commonwealth Edison Co. (1988), 123 Ill. 2d 275, and Frazer v. A. F. Munsterman, Inc. (1988), 123 Ill. 2d 245, which show that in the instant case Christian may not pursue an action for implied indemnity.

In Frazer v. A. F. Munsterman, the Illinois Supreme Court held that a claim for indemnity could not be maintained where the one seeking indemnity was found negligent in an underlying action based on a defective product. (123 Ill. 2d at 261-62.) Plaintiff Doris Frazer suffered injuries when a rental trailer fastened to the back of a pickup truck with a portable hitch separated from the truck and veered into the path of her car. Frazer brought actions in negligence and strict products liability against the operator of the trailer rental agency and various manufacturers of the portable hitch and trailer. The rental agency operator, Munsterman, brought a third-party claim against the manufacturers for contribution and implied indemnity. (123 Ill. 2d at 252.) The manufacturers settled with Frazer, and Munsterman was found liable for negligence in a jury trial. Munsterman's claim for contribution was barred by the Contribution Act, and the supreme court affirmed dismissal of the implied indemnity claim because Munsterman had been found negligent. The supreme court stated, however, that the Contribution Act had not abolished all actions for implied indemnity. 123 Ill. 2d at 254-55.

Relying on Frazer, the supreme court held in Thatcher v. Commonwealth Edison Co. (1988), 123 Ill. 2d 275, that a defendant who settled with the plaintiff in an underlying suit could not maintain a third-party claim for implied indemnity. In Thatcher, the plaintiff sued Commonwealth Edison Company (Com Ed) and Dow Chemical Company (Dow) for injuries suffered at a Com Ed plant while using a high pressure hose designed and manufactured by Dow. Com Ed brought a third-party claim against Dow, based on strict products liability, seeking contribution and implied indemnity. Before trial, Com Ed settled with Thatcher, and the trial court dismissed Com Ed's claim. The Illinois Supreme Court affirmed, but repeated that the Contribution Act had not extinguished implied indemnity actions. (123 Ill. 2d at 279.) The court stated that although Com Ed had not been found negligent, Com Ed had been sued solely under theories requiring a finding of fault, and had it been found liable, would have been barred from indemnity under Frazer. (123 Ill. 2d at 279.) The court further stated that Com Ed's substantial settlement had been made, at least in part, to avoid a holding of liability, and apparently based its holding on this fact. (123 Ill. 2d at 279.) Because the instant case parallels Thatcher, we hold that Christian may not seek indemnity.

In the instant case, the underlying action concerns a defective product, the faulty gear shift mechanism in Christian's boat. The counts against Christian were based on negligence and Federal ...

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