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12/29/89 Geraldine Dowling, Ex'r of v. Otis Elevator Company Et

December 29, 1989

GERALDINE DOWLING, EX'R OF THE ESTATE OF PATRICK DOWLING, DECEASED, PLAINTIFF

v.

OTIS ELEVATOR COMPANY ET AL., THIRD-PARTY, PLAINTIFFS-APPELLANTS (SCHAL ASSOCIATES, INC., THIRD-PARTY DEFENDANT-APPELLEE)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SIXTH DIVISION

549 N.E.2d 866, 192 Ill. App. 3d 1064, 140 Ill. Dec. 215 1989.IL.2058

Appeal from the Circuit Court of Cook County; the Hon. Odas J. Nicholson, Judge, presiding.

APPELLATE Judges:

JUSTICE LaPORTA delivered the opinion of the court. McNAMARA and DiVITO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LAPORTA

This appeal arises from the dismissal of the third-party complaint for contribution filed by Otis Elevator Company (Otis) against Schal Associates, Inc. (Schal). The underlying action was brought by Geraldine Dowling, the executor of the estate of Patrick Dowling, seeking relief for the wrongful death of her son, who was employed by Schal and working on the site. Schal's motion to dismiss was based upon a contractual provision in Otis' subcontract with Schal in which Otis had agreed to procure insurance naming Schal as an additional insured. Schal contended that the parties to the construction subcontract, by agreeing that insurance would be provided, had agreed to mutually exculpate each other in the event of any personal injuries or loss resulting from the construction. The trial court granted Schal's motion to dismiss. Otis has appealed the denial of its subsequent motion to reconsider the dismissal order. Only Schal and Otis are parties to this appeal.

On appeal, Otis contends that the trial court erred in finding that it was precluded from maintaining a contribution action against Schal. Schal has filed a motion to dismiss the appeal, asserting that Otis' notice of appeal was not timely filed.

On November 19, 1984, Patrick Dowling, the plaintiff's decedent and an employee of Schal, was injured while working on a construction project for which Schal was the construction manager and Otis was a subcontractor who agreed to furnish and install all of the elevators required for the construction project. Plaintiff, Geraldine Dowling, executor of the estate of Patrick Dowling, subsequently brought an action against Otis, Miglin-Beitler Development, Inc., and Madison Plaza Corporation, seeking relief for the alleged wrongful death of her son. Otis answered the complaint and denied all material allegations.

Otis thereafter filed a third-party complaint against Schal, seeking contribution for allegedly negligent conduct by Schal which resulted in the death of plaintiff's decedent. Specifically, Otis asserted that Schal was negligent by failing to instruct and supervise its employees, failing to barricade an elevator shaft, failing to provide outer doors to an elevator shaft, and failing to inform subcontractors when people would be working in or around the elevator shaft.

Schal moved to dismiss the third-party complaint, asserting that because Otis had agreed to name Schal as an additional insured on its comprehensive general liability policy, Otis was precluded from maintaining a contribution action against Schal. At the hearing on the motion to dismiss, counsel for Schal argued that by the terms of the subcontract, Otis had agreed to indemnify Schal through insurance. Counsel contended that Otis was, therefore, precluded from bringing its third-party action against Schal for contribution. On January 26, 1988, the trial Judge granted Schal's motion to dismiss the third-party complaint with prejudice, finding that the insurance provision in the contract was controlling. The court also held that the order was final and appealable with no just reason for delay in its enforcement or appeal.

On February 16, 1988, Otis filed a timely motion to reconsider the dismissal order. At the hearing on Otis' motion to reconsider, counsel for Schal argued that the subcontract evidenced a determination by the parties as to how a loss was to be apportioned. Counsel for Schal contended further that Otis' procurement of insurance for Schal prohibited Otis from seeking contribution from Schal in the event of a loss for which both parties were responsible. On that date, another circuit court Judge sua sponte vacated the language pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) and continued the hearing on the merits of the motion for reconsideration because the trial Judge who entered the dismissal order of January 26, 1988, was on vacation. Schal thereafter filed its response to Otis' motion.

On August 8, 1988, the original trial Judge denied Otis' motion for reconsideration, stating that Otis' agreement to provide insurance amounted to exculpation of Schal. The court again held that its order was final and appealable with no just reason for delay in its enforcement or appeal. On August 26, 1988, Otis filed the instant appeal.

The subcontract between Schall and Otis included an insurance rider which required Schal to maintain comprehensive general liability insurance with the employee exclusion deleted. The insurance rider to the subcontract also required Otis to maintain comprehensive general liability insurance with the employee exclusion deleted. Furthermore, Otis was required to name Schal as an additional insured under its comprehensive general liability policy, excluding coverage for the sole negligence of Schal. In addition, both Schal and Otis were obligated to maintain workers' compensation insurance.

The subcontract also included an indemnification clause whereby Otis agreed to indemnify Schal for any and all damages sustained by reason of accidents occurring during the work and caused by the act or omission of Otis. Although the insurance rider provided that the employee exclusion was to be deleted from Otis' comprehensive general ...


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