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10/07/88 Horacio Alaniz, v. Schal Associates

October 7, 1988

HORACIO ALANIZ, PLAINTIFF-APPELLANT

v.

SCHAL ASSOCIATES, DEFENDANT (THORNE-MCNULTY CORPORATION, DEFENDANT-APPELLEE)



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

529 N.E.2d 832, 175 Ill. App. 3d 310, 124 Ill. Dec. 851 1988.IL.1517

Appeal from the Circuit Court of Lake County; the Hon. Alvin Ira Singer, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. LINDBERG, P.J., and INGLIS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Plaintiff, Horacio Alaniz, appeals from an order of the circuit court of Lake County which granted the motion of defendant, Thorne-McNulty Corporation, to dismiss count III of plaintiff's second amended complaint and which found no reason to delay appeal or enforcement thereof. Plaintiff contends that the trial court erred in dismissing that count because he was an intended third-party beneficiary of construction contracts entered into by Thorne-McNulty, defendant Schal Associates, and plaintiff's employer, Rite-On Roofing, Inc. We affirm.

Plaintiff's initial complaint alleged that on March 1, 1985, while he was working as a roofer at the construction site of the Bannockburn Green Shopping Center, he sustained personal injuries when an extension ladder he was using collapsed. He alleged that his injuries were caused by violations of the Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, par. 60 et seq.) by Schal Associates, the construction manager of the project. Thorne-McNulty was not named as a defendant in the original complaint.

On June 23, 1987, plaintiff filed his first amended complaint. Count II of that complaint named Thorne-McNulty as a defendant, alleging that Thorne-McNulty had also violated the Structural Work Act. Thorne-McNulty moved to dismiss that count as barred by the two-year statute of limitations pertaining to actions for damages for personal injury (Ill. Rev. Stat. 1985, ch. 110, par. 13-202). The motion to dismiss count II was granted on August 21, 1987, and plaintiff does not challenge the dismissal of count II.

Prior to the dismissal of count II, plaintiff filed a second amended complaint adding count III against Thorne-McNulty. Count III alleged that plaintiff was an intended third-party beneficiary of contracts between Thorne-McNulty and Rite-On Roofing, and between Thorne-McNulty and Schal Associates. The subcontract between Thorne-McNulty and Schal Associates called for Thorne-McNulty to perform certain construction work on the Bannockburn project, and article 12 of the general conditions of the subcontract contained the following provision:

"The subcontractor [Thorne-McNulty] has the responsibility for maintaining the safety and loss prevention programs covering all work performed by it, and its subcontractors."

The contract between Thorne-McNulty and Rite-On Roofing, entitled "Hold Harmless Agreement," provided that Thorne-McNulty consented to Rite-On Roofing's use of certain scaffolding under the conditions that Rite-On Roofing indemnify and hold harmless Thorne-McNulty for any claims arising out of the use by Rite-On or its agents of the scaffolding and that no guarantee or representation was made concerning the safety of the scaffolding. Plaintiff alleged that his injuries were a proximate result of Thorne-McNulty's breach of the aforementioned contracts. Thorne-McNulty moved to dismiss count III pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-615), and, as noted above, the motion was granted.

On appeal, plaintiff argues that the contract between Thorne-McNulty and Schal Associates made plaintiff an intended third-party beneficiary due to the sentence which provided that Thorne-McNulty had the responsibility to maintain safety programs covering work by Thorne-McNulty and its subcontractor, Rite-On Roofing. Therefore, plaintiff contends, Thorne-McNulty had a contractual duty to him, as an employee of Rite-On Roofing, to have a safety program which provided safe work conditions, including safe equipment. He concludes that, due to Thorne-McNulty's contractual duty, he may maintain a cause of action against Thorne-McNulty for personal injuries resulting from unsafe work conditions and equipment used on the construction project.

Although apparently no case involving contractual language similar to that found here has been decided in Illinois, the law regarding third-party beneficiaries is well established. A third-party beneficiary may sue for breach of a contract made for his benefit. (Carson Pirie Scott & Co. v. Parrett (1931), 346 Ill. 252, 257.) A third party may only sue for breach of contract, however, if the contract was entered into for the party's direct benefit; if the third-party's benefit is merely incidental, he has no right of recovery on the contract. (Parrett, 346 Ill. at 257; People ex rel. Resnik v. Curtis & Davis, Architects & Planners, Inc. (1980), 78 Ill. 2d 381, 385.) Whether a third party is a direct beneficiary depends on the intention of the parties, which must "be gleaned from a consideration of all of the contract and the circumstances surrounding the parties at the time of its execution." Parrett, 346 Ill. at 258.

Our review of the contract here and the circumstances surrounding the parties at the time of its execution reveals that neither Thorne-McNulty nor Schal Associates intended to confer a direct benefit to plaintiff by inclusion of the general language regarding safety and loss prevention programs. It appears, rather, that the contract was intended solely to benefit the contracting parties by setting forth their respective responsibilities ...


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