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08/11/89 Turner Construction v. Midwest Curtainwalls

August 11, 1989

TURNER CONSTRUCTION COMPANY, PLAINTIFF-APPELLANT

v.

MIDWEST CURTAINWALLS, INC., DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SIXTH DIVISION

543 N.E.2d 249, 187 Ill. App. 3d 417, 135 Ill. Dec. 14 1989.IL.1236

Appeal from the Circuit Court of Cook County; the Hon. Anthony J. Scotillo, Judge, presiding.

APPELLATE Judges:

JUSTICE McNAMARA delivered the opinion of the court. EGAN, P.J., and LaPORTA, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

In this construction dispute, plaintiff Turner Construction Company, the general contractor, filed a petition to stay arbitration proceedings after a demand for arbitration was filed by the subcontractor, defendant Midwest Curtainwalls, Inc., a/k/a Midwest Architectural Metals, Inc., and Ampat/Midwest Corporation. The trial court denied Turner's petition to stay arbitration and granted Midwest's motion to dismiss the petition pursuant to section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-619). Turner appeals from this interlocutory order (107 Ill. 2d R. 307), contending that the general contract language permitting arbitration is not incorporated into the language of the subcontract entered into by the parties.

On November 16, 1984, Turner entered into a construction contract with the owner of certain property. On the same day, Midwest entered into an agreement with Turner.

The general contract between Turner and the owner provides for arbitration of certain disputes:

"Section 7.9.1: All Claims, disputes and other matters in question between the Contractor and the Owner arising out of, or relating to, the Contract Documents or the breach thereof . . . shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. . . . No person other than the Owner or contractor shall be included as an original third party or additional third party to an arbitration whose interest or responsibility is insubstantial. Any consent to arbitration involving an additional person or persons shall not constitute consent to arbitration of any dispute not described therein or with any person not named or described therein."

The subcontract between Turner and Midwest contains no arbitration clause. Article II of the subcontract states:

"Article II: The Plans, Specifications, General Conditions, Special Conditions, Addenda and General Contract, hereinabove mentioned, are available for examination by the Subcontractor at all reasonable times at the office of Turner, all of the aforesaid, including this Agreement, being hereinafter sometimes referred to as the Contract Documents. The Subcontractor represents and agrees that it has carefully examined and understands this Agreement and the other Contract Documents . . .. . . .

With respect to the Work to be performed and furnished by the Subcontractor hereunder, the Subcontractor agrees to be bound to Turner by each and all of the terms and provisions of the General Contract and the other Contract Document, and to assume toward Turner all of the duties, obligations and responsibilities that Turner by those Contract Documents assumes toward the Owner, and the Subcontractor agrees further that Turner shall have the same rights and remedies as against the Subcontractor as the Owner under the terms and provisions of the General Contract and the other Contract Documents has against Turner with the same force and effect as though every such duty, obligation, responsibility, right or remedy were set forth herein in full. The terms and provisions of this Agreement with Subcontractor hereunder are intended to be and shall be in addition to and not in substitution for any of the terms and provisions of the General Contract and the other Contract Documents."

On June 16, 1988, Midwest served Turner with a demand for arbitration, seeking over $1 million for delaying its work and failure to pay retainage. Upon receipt of the demand, Turner initiated this suit to stay the arbitration proceedings.

Turner contends that neither the subcontract nor the general contract provides for arbitration of claims between the parties. Whether an ambiguity exists in a contract is to be determined by the court as a question of law. (Kenny Construction Co. v. Hinsdale Sanitary District (1982), 111 Ill. App. 3d 690, 444 N.E.2d ...


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