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09/15/89 Frances E. Kemner Et Al., v. Norfolk and Western

September 15, 1989

FRANCES E. KEMNER ET AL., PLAINTIFFS-APPELLEES

v.

NORFOLK AND WESTERN RAILWAY CORPORATION, DEFENDANT-APPELLANT (MONSANTO COMPANY, DEFENDANT; G.A.T.X. CORPORATION, DEFENDANT-APPELLEE AND SEPARATE APPELLANT;



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

Dresser Industries, Inc., Defendant-Appellee and Separate, Appellee; General American Transportation Corporation, Defendant-Appellee; Willamette Western Corporation,

Third-Party Defendant)

No. 5-88-0010

544 N.E.2d 124, 188 Ill. App. 3d 245, 135 Ill. Dec. 767 1989.IL.1433

Appeal from the Circuit Court of St. Clair County; the Hon. Richard P. Goldenhersh, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE WELCH delivered the opinion of the court. HARRISON and RARICK, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WELCH

This appeal is from an order dismissing defendant Norfolk and Western Railway Company's (the Railway's) counterclaim for indemnity against co-defendants Dresser Industries, Inc. (Dresser), and General American Transportation Corporation , entered in the circuit court of St. Clair County in December of 1983.

The incident resulting in this appeal occurred on the night of January 10, 1979, in Sturgeon, Missouri. At approximately 11:15 p.m. on that evening, a tank car being transported by the Railway derailed and was punctured as it came down upon its own wheel mechanisms. The tank car contained a liquid chemical manufactured by co-defendant Monsanto Company (Monsanto). The liquid chemical, described as 19,000 gallons orthochlorophenol crude, leaked from the tank car, covering the surface, in varying degrees, along 2,700 feet of the Railway's right of way.

Plaintiffs in the underlying suit were residents of Sturgeon, Missouri, who claimed personal injuries resulting from their exposure to the chemicals which leaked from the tank car. Suit was filed against defendants Railway, Dresser, GATX, and Monsanto in the circuit court of St. Clair County. In a consolidated action, plaintiffs alleged that the derailment and consequent spill were caused by a defective yoke, manufactured by Dresser, which was used by GATX in manufacturing the tank car. Railway's liability was alleged to have resulted from Railway's possession and exclusive control of the tank car at the time of its derailment, and from the Railway's violation the Federal Safety Appliance Act (45 U.S.C.A. §§ 1 through 7 (West Supp. 1989)). Monsanto's liability was based on several alleged negligent acts, including its failure to inspect the car for defects, its failure to remove the spilled chemicals from the area of the derailment, and its failure to warn the residents living near the area of the derailment of the possible danger resulting from exposure to the chemical.

On July 17, 1981, Railway filed its answer to plaintiffs' complaint, and counterclaims against defendants Dresser, GATX, and Monsanto. On February 10, 1983, Railway filed amended counterclaims against the same defendants seeking indemnity and contribution based on strict liability and negligence.

On December 12, 1983, the day on which jury selection was to begin, plaintiffs announced that they had reached a settlement agreement with Dresser in the sum of $2,900,000. The objections of defendants GATX, Railway, and Monsanto notwithstanding, the trial court dismissed the claims for indemnity of these objecting defendants. The trial court found the settlement between plaintiffs and Dresser to have been entered into in good faith and concluded that such goodfaith settlement precluded actions of co-defendants for contribution, as dictated by section 2(d) of the Illinois Contribution Among Joint Tortfeasors Act (Contribution Act) (Ill. Rev. Stat. 1987, ch. 70, par. 302(d)).

The following day, December 13, 1983, plaintiffs informed the trial court that they had entered into a settlement with GATX for $2,100,000. Again, Monsanto and Railway objected to the settlement, and, again, the trial court found that the settlement was in good faith and therefore precluded any claims from a joint tortfeasor seeking contribution. The trial then proceeded against Monsanto and Railway. So that it might perfect an interlocutory appeal of the trial court's dismissal of its counterclaims against Dresser and GATX, Railway requested that the court declare the orders of dismissal final. Railway's request was ...


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