APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
529 N.E.2d 288, 174 Ill. App. 3d 966, 124 Ill. Dec. 468 1988.IL.1463
Appeal from the Circuit Court of Warren County; the Hon. Stephen Evans, Judge, presiding.
JUSTICE BARRY delivered the opinion of the court. WOMBACHER and HEIPLE, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY
Plaintiff YMCA (the Y) brought an action to recover damages for breach of contract against defendant Midland Architects with regard to a roof system on plaintiff's building. Before trial, plaintiff received payments totaling $86,750 in settlement with the general contractor and the roofing manufacturer. The jury returned a verdict for plaintiff and fixed damages in the amount of $70,000. Then upon defendant Midland's motion, a setoff in the amount of $86,750 was allowed against damages of $129,988, as determined by the court, and the verdict was reduced to $43,238. Midland appeals from that portion of the order which determined total damages to be $129,988, and Midland seeks to have the entire setoff applied against the verdict of $70,000, thereby reducing the verdict to $0. Plaintiff has cross-appealed, asking that the order be reversed and the verdict reinstated.
The following facts were not disputed at trial. In 1977 the Warren County YMCA contracted with Midland Architects, Inc., to design a new YMCA building. Because the building committee members had some knowledge of roof problems on other buildings, the architects were told to provide a roof of the same type as was on the Y building in Keokuk, Iowa. That was a roofing system manufactured by Dow Chemical which placed the roofing membrane next to the roof deck with extruded polystyrene insulation over the membrane and finally a layer of gravel on top. The specifications for the Warren County Y specified a Dow roof system.
The general contractor for the project, Carl A. Nelson & Co., at the request of the roofing subcontractor, asked Midland to substitute a newer roof system of similar design using Celotex materials. This system also was also an inverted design with the roof membrane next to the deck, but the insulation was urethane with felt facers on both sides and asphalt over the top. In October of 1977, Midland agreed to substitute the Celotex system after reviewing the manufacturer's specifications of the new system, but the substitution was not discussed with the Y.
The contract required the general contractor to obtain a 10-year guarantee from the manufacturer of the roof, and it was the responsibility of the architects to receive all the specified warranties and to transmit them to the owner. One year after the construction was completed, in February of 1980, the roofing subcontractor sought to obtain the required warranty from Celotex, but Celotex refused on the ground that the slope of the roof was less than the one-quarter inch per foot required for use of its inverted roof system. (The design of the Y specified a one-sixth-inch slope per foot.) However, by the end of 1979, Celotex was no longer marketing its inverted roof system because the system did not perform as expected. The roofing subcontractor provided its own 10-year guarantee of the roof, and at the recommendation of the architects, the Y accepted the roofing subcontractor's warranty in lieu of one from Celotex. Subsequently the subcontractor filed bankruptcy and did not honor its guarantee.
Construction of the Y was completed in February of 1979. During the summer of 1979 the Y experienced its first leaks. Attempts were made to repair the roof, but it was discovered that the insulation was saturated with water and that water was standing on the roof under the insulation. Since water is a conductor of heat, all the insulation value of the roofing system was lost. In 1982, it was necessary to have a new roof installed on the swimming pool portion of the building at a cost of $23,188. In 1985, a new roof costing $82,000 was installed on the rest of the building. In addition, interior repairs to ceilings and the gym floor cost $800. Ten-year warranties were obtained for the new roof systems.
D. F. Jennings, an expert witness for plaintiff, testified that he estimated that the Y suffered increased fuel costs of $24,000 from energy losses resulting from the defective roof. The witness testified that he used a standard formula for the computation, and that one of many factors in that formula was an assumed interior temperature of 65 degrees. Jennings also testified that he obtained information concerning the heating practices at the Y from the executive director, who advised him that the pool area was kept at 85 degrees, the offices at 70 degrees-72 degrees, and the gym at 65 degrees. Thus, Jennings stated that he ascertained that his figures were conservative as to the interior temperature. Another factor used in the formula was the R value of the insulation, meaning the thermal resistance. The manufacturer's data indicated that the R value of a Dow roof was 10.0, for the Celotex roof used was 11.1, and for the new roof installed in 1985, 20.
Plaintiff argued to the jury that the architects were liable for the full amount of the damages shown by the evidence, $129,988, because they failed to fulfill their obligations under the contract. The damages resulted, it was said, from a failure to use a Dow roof as the contract specified. Defendant, on the other hand, argued that the general contractor was the one who was bound to build the building according to the specifications in the contract. Furthermore, defendant argued that the Celotex roof was considered to be equal to the Dow roof in 1977 at the time the substitution was made. Defendant architects also argued in the alternative that, if they were liable, they were not liable for the full amount of damages since the Y now has a better roof than the original specifications called for. Among other things, the warranties are now extended to 1995 on the main roof, rather than 1987 as originally provided, and the roof has more insulation value. Also, the Y had the use of the original roof for several years. Defendant urged the jury to ascribe values to those elements and to reduce the damages by that amount.
As indicated above, the jury returned a verdict in favor of plaintiff in the amount of $70,000. Upon defendant's motion to set off the full amount of the settlement paid by the general contractor and by Celotex, $86,750, against the verdict, the trial court ruled that the jury had apportioned the damages between Midland Architects and the defendants not present (Carl A. Nelson & Co. and The Celotex Corporation). The court then found that the total damages to plaintiff were $129,988, that defendant was entitled to a setoff of the amount of the settlement, and that the correct amount of defendant's liability was $43,238. Neither party was happy with the court's determination, and both parties appeal as aforesaid.
Midland contends that the trial court erred in ruling that the jury had apportioned the damages between the various defendants. Midland correctly points out that the jury instructions did not ask the jury to divide the damages between the architect and/or the general contractor and/or the roofing manufacturer. The jury was instructed to determine the total amount of damages resulting from the architects' breach of contract. Of equal importance is the fact that, under the ...