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06/05/89 Ball Corporation, v. Bohlin Building

June 5, 1989

BALL CORPORATION, PLAINTIFF-APPELLEE

v.

BOHLIN BUILDING CORPORATION ET AL., DEFENDANTS (BOICE ROOFING COMPANY, DEFENDANT-APPELLANT)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

543 N.E.2d 106, 187 Ill. App. 3d 175, 134 Ill. Dec. 823 1989.IL.839

Appeal from the Circuit Court of Cook County; the Hon. Charles J. Durham, Judge, presiding.

APPELLATE Judges:

JUSTICE CAMPBELL delivered the opinion of the court. MANNING, P.J., and BUCKLEY, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL

This appeal and cross-appeal arise from damages incurred by plaintiff, Ball Corporation, to portions of its warehouse roof as the result of a windstorm on April 5, 1979. On March 18, 1982, Ball filed a complaint against defendants, Bohlin Building Corporation, general contractor for the 1973 and 1977 roof additions to Ball's warehouse; Dexter-Mook Roofing Sheet Metal Works, Inc., the roofing subcontractor for the 1977 addition; and Boice Roofing Company, the roofing subcontractor for the 1974 addition, alleging that each defendant had been careless and negligent. Subsequently, on March 12, 1986, Ball filed an amended complaint, adding breach of contract counts predicated on a third-party beneficiary theory against Boice and Dexter-Mook and breach of contract and breach of implied warranty counts against Bohlin. The trial court denied motions for summary judgment filed by Bohlin, Boice and Dexter-Mook. Following a jury trial, the trial court directed a verdict in favor of defendants on the negligence counts and the jury found for Ball and against all defendants on the contract counts, assessing damages in the amount of $104,913.65. Bohlin was found liable for 20% of the damages, Boice for 50% and Dexter-Mook for 30%. Boice's post-trial motions were denied.

On appeal, Boice, sole appellant, contends that the trial court erred in finding that Ball was a third-party beneficiary to the contract between Bohlin, general contractor, and Boice, subcontractor. On cross-appeal, Ball contends that the trial court erred in directing a verdict in favor of Boice on the negligence count. For the following reasons, we reverse the trial court's judgment as to the contract count and affirm the trial court's judgment entering a directed verdict in Boice's favor as to the negligence count.

With respect to the contract count, Ball contends that it is entitled to damages as a third-party beneficiary to the contract between Bohlin and Boice. In response, Boice argues that the clear and unambiguous terms of the Ball-Bohlin contract, expressly incorporated into the Bohlin-Boice contract, state that Ball has no contractual relationship with any subcontractor, including Boice.

Pursuant to Illinois law, there is a strong presumption that parties to a contract intend that the contract's provisions apply to only them and not to third parties. In order to overcome that presumption, the implication that the contract applies to third parties must be so strong as to be practically an express declaration. (Alaniz v. Schal Associates (1988), 175 Ill. App. 3d 310, 529 N.E.2d 832.) It is the intention of the parties as evidenced by the contract that determines whether another is a third-party beneficiary. It is not enough that the beneficiary is an incidental beneficiary, i.e., that the third party will reap incidental benefits from the contract. Only a direct beneficiary has a right against the promisor or promisee. (People ex rel. Resnik v. Curtis & Davis, Architects & Planners, Inc. (1980), 78 Ill. 2d 381, 400 N.E.2d 918.) A third party is a direct rather than an incidental beneficiary when the contracting parties have manifested in their contract an intention to confer a benefit upon the third party. (Altevogt v. Brinkoetter (1981), 85 Ill. 2d 44, 421 N.E.2d 182; Santucci Construction Co. v. Baxter & Woodman, Inc. (1986), 151 Ill. App. 3d 547, 502 N.E.2d 1134.) Liability to a third-party must affirmatively appear from the contract's language and from the circumstances surrounding the parties at the time of its execution, and cannot be expanded or enlarged simply because the situation and circumstances justify or demand further or other liability. Carson Pirie Scott & Co. v. Parrett (1931), 346 Ill. 252, 178 N.E.2d 498; Midwest Concrete Products Co. v. La Salle National Bank (1981), 94 Ill. App. 3d 394, 418 N.E.2d 988.

In the present case, the contract between Ball, the owner, and Bohlin, the general contractor, included the following specifications drafted by Ball:

"I-5 CONTRACTOR

Only one Contractor will be recognized as the other party in any specific contract, and this Contractor shall be held responsible as prime Contractor for the proper fittings of all work and for the coordination of all his tradesmen, subcontractors, materialmen, or suppliers engaged upon his part of the work. He shall also be fully and solely responsible to the Engineer for the acts or omissions of his men, his subcontractors, and of persons either directly or indirectly employed by his subcontractors or supplying materials or supplies to him or his subcontractors. I -- 6 SUBCONTRACTORS

All portions of the work that the Contractor's organization has not been accustomed to perform or that the Owner may approve shall be executed under separate subcontracts let by the Contractor.

The Contractor, being fully responsible for the work shall have full directing authority over the execution of the ...


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