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01/24/89 Commonwealth Edison v. Hoge-Warren-Zimmerman

January 24, 1989

COMMONWEALTH EDISON COMPANY, PLAINTIFF-APPELLANT

v.

HOGE-WARREN-ZIMMERMAN COMPANY, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

534 N.E.2d 427, 179 Ill. App. 3d 120, 128 Ill. Dec. 245 1989.IL.61

Appeal from the Circuit Court of Cook County; the Hon. Irving R. Norman, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE EGAN delivered the opinion of the court. HARTMAN and SCARIANO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE EGAN

This case involves one of the slowly dwindling but still lingering causes of action which arose before the passage of the Contribution Act (Ill. Rev. Stat. 1979, ch. 70, par. 301 et seq.) and Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437.

The plaintiff, Commonwealth Edison Co. (Edison), appeals from an order granting the motion of the defendant, Hoge-Warren-Zimmerman Co. , to dismiss the plaintiff's complaint for implied indemnity. HWZ cross-appeals from the trial court's rejection of other arguments advanced by HWZ to support its motion to dismiss. For the sake of clarity and brevity, therefore, we will treat the cross-appeal as an argument that the trial court could have dismissed the first amended complaint on grounds other than the one upon which the court relied, and, as the appellee, the defendant may properly argue those other grounds to support affirmance of the order. Bell v. Louisville & Nashville R.R. Co. (1985), 106 Ill. 2d 135, 478 N.E.2d 384.

On December 7, 1973, James McDaniel, an employee of Douglas Hoge, Alfred Warren and Richard Zimmerman, who were partners and owners of property located at 980 Carnegie Street, Rolling Meadows, Illinois, was sitting on an outside wall of an addition to the property and attempted to hand a 20-foot angle iron to a co-worker situated inside the building. McDaniel was electrocuted when the angle iron came into contact with a high power electric line owned by Edison.

The McDaniel estate filed a wrongful death action as well as other statutory claims against Edison, Hoge, Warren and Zimmerman individually and as owners of the property and Carp Construction Company, a contractor. The case went to trial on September 24, 1979. After the estate rested, Edison settled, paying $500,000 in exchange for a covenant not to sue or to continue suit. We have been informed that Hoge, Warren and Zimmerman also settled with the estate, and the case was dismissed with prejudice as to all defendants on October 3, 1979.

On January 3, 1980, Edison filed a three-count complaint against HWZ. Count I was for implied indemnity, count II was for common law contribution and count III for statutory contribution. Counts II and III were dismissed, and their dismissal is not in issue here.

Then began a long series of motions by HWZ which involved four different Judges. It first filed a motion to dismiss, claiming that the allegation of active negligence on the part of Edison in the wrongful death complaint precluded indemnification. Judge Paul Elward denied that motion on September 29, 1980. HWZ then sought a rehearing on its motion, arguing for the first time that the complaint failed to allege a pretort relationship between Edison and HWZ. That motion was denied by Judge Edward Berman on July 3, 1984. HWZ filed a notice of appeal and a petition for leave to appeal. The appellate court dismissed the appeal and denied the petition for leave. HWZ filed a petition for leave to appeal to the Illinois Supreme Court which was denied on April 2, 1985.

HWZ then filed a motion for summary judgment claiming that Edison could not establish a pretort relationship. Judge Thomas Hoffman denied that motion. The defendant then filed another motion to dismiss on March 4, 1986, alleging that Edison's implied indemnity action was insufficient, because it was based upon HWZ' violation of the Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, par. 60 et seq.), and that Edison did not qualify as a "protected person" under the law. Judge Hoffman also denied that motion. The defendant filed a second motion for summary judgment, again making the Structural Work Act argument. Judge Hoffman denied that motion, as well as HWZ' subsequent motion for rehearing. On October 20, 1987, the case was assigned to Judge Irving R. Norman to be set for trial.

HWZ filed another motion to dismiss before Judge Norman, again based on the argument that Edison failed to plead an adequate pretort relationship. Judge Norman indicated that he would allow the motion to dismiss on that ground but granted Edison leave to file an amended complaint. Edison filed an amended complaint, and HWZ responded by renewing its motion to dismiss. After a number of hearings, Judge Norman eventually granted HWZ' motion to dismiss on the ground that no adequate pretort relationship had been pleaded by Edison. He expressed disagreement with some of the other arguments advanced by HWZ in support of the motion, with the exception of the argument that Edison was guilty of active negligence as a matter of law. It was his belief that the underlying complaint alleged active negligence on the part of Edison. However, he hinged his decision on the holding that an adequate pretort relationship between the parties had not been pleaded.

The procedural history of this case tracks the changes in the law, and the record will reflect the understandable uncertainty those changes engendered in the minds of the trial Judges. For example, the first Judge who passed on the argument that a pretort relationship had not been pleaded apparently relied on certain appellate court opinions that one seeking implied indemnity need plead either a pretort relationship or a qualitative difference in the conduct of the parties. (E.g., Burgdorff v. International Business Machines (1975), 35 Ill. App. 3d 192, 341 N.E.2d 122.) Those cases we now know are contrary to the expression of the supreme court, which has held that both must be established. (Heinrich v. Peabody International Corp. (1984), 99 Ill. 2d 344, 459 N.E.2d 935.) The second Judge did not agree with the first Judge but did not think he had the right to change the ruling. The last Judge, Judge Norman, heard considerable argument and considered many cases. His remarks reflect a recognition that the requirement that ...


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