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09/30/88 Mark Brown, v. Torin Corporation Et Al.

September 30, 1988

MARK BROWN, PLAINTIFF

v.

TORIN CORPORATION ET AL., DEFENDANTS (ARATEX SERVICES, INC., THIRD-PARTY PLAINTIFF-APPELLANT; SUESKE BRASS &



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

Copper Company, Inc., Third-Party, Defendant-Appellee)

529 N.E.2d 1077, 175 Ill. App. 3d 544, 125 Ill. Dec. 1 1988.IL.1488

Appeal from the Circuit Court of Cook County; the Hon. Dean J. Sodaro, Judge, presiding.

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. JIGANTI, P.J., and JOHNSON, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

Third-party plaintiff, Aratex Services, Inc. (Aratex), brought an action in the circuit court of Cook County against third-party defendant, the Sueske Brass and Copper Company, Inc. (Sueske). Aratex' amended third-party complaint contained two counts. The trial court dismissed count I, which pled an action for implied indemnity against Sueske. The trial court subsequently dismissed count II, which sought contribution from Sueske based on a settlement agreement between Sueske; its employee, Mark Brown, the plaintiff in the main claim; and a defendant in the main claim.

Aratex appeals, contending: (1) count I of its amended third-party complaint states a cause of action for implied indemnity, and (2) the settlement agreement lacked good faith both as a matter of law and based on Sueske's pro rata share of the common liability.

We affirm the orders of the trial court in all respects.

Background

The trial court dismissed count I of Aratex' amended third-party complaint pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619(a)(9)). A motion to dismiss, including one under section 2-619(a)(9), admits all well-pled facts. (Austin View Civic Association v. City of Palos Heights (1980), 85 Ill. App. 3d 89, 93, 405 N.E.2d 1256, 1261.) Aratex alleged in its amended third-party complaint that Brown was an employee of Sueske. Additionally, Sueske leased its industrial uniforms and other garments from Aratex. Aratex measured Brown and Sueske's other employees for their uniforms and provided them with the uniforms.

On June 16, 1978, Brown was wearing loose-fitting coveralls with long sleeves. As Brown was standing or walking next to a slitting machine, his right sleeve was drawn into the machine, pulling his hand with it. Brown suffered a partial amputation of his right hand along with other injuries.

Brown brought the underlying action against Aratex; Torin Corporation, which manufactured the machine; and Revere Brass and Copper, Inc. (Revere), the previous owner of the machine, which sold it to Sueske. Brown sued Aratex on a theory of strict liability in tort. Brown alleged that the coveralls were defectively designed and dangerous because: (a) the sleeves of the coveralls were too long and loose-fitting for persons working near operating machinery; (b) the sleeves lacked elastic wristlets or bands, or any other means of preventing the sleeves from becoming entangled in the moving parts of operating machinery; and (c) these defects and dangerous conditions existed at the time the coveralls left Aratex' control. Brown further alleged that Aratex knew that the coveralls, with their loose-fitting sleeves, were not the proper garments to be worn near operating machinery. Brown also alleged that the coveralls lacked adequate warnings of these dangerous conditions.

Aratex and Revere brought third-party actions against Sueske seeking indemnity and contribution. The trial court granted Sueske's section 2-619(a)(9) motion to dismiss count I of Aratex' amended third-party complaint. Subsequently, Brown, Sueske, and Revere entered into a settlement agreement. As consideration for Brown's release, Sueske paid Revere, which in turn paid Brown, $62,500. In addition, Sueske waived its worker's compensation lien of $44,838.25. Revere also paid Brown $62,500. Based on this settlement and pursuant to section 2(d) of the Contribution Act (Ill. Rev. Stat. 1985, ch. 70, par. 302(d)), the trial court dismissed all third-party claims against Sueske seeking contribution. This dismissal ...


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