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DORAN v. CORN PRODUCTS-U.S.

September 26, 1991

TERRY TYLER DORAN and ROSEMARY DORAN, Plaintiffs,
v.
CORN PRODUCTS-U.S., A DIVISION OF CPC, INTERNATIONAL, INC., and CPC INTERNATIONAL, INC., Defendants; CPC INTERNATIONAL, INC., a corporation, Third Party Plaintiff, v. SUPER ELECTRIC CONSTRUCTION COMPANY and CONTINENTAL CASUALTY COMPANY, Third Party Defendants


Marvin E. Aspen, United States District Judge.


The opinion of the court was delivered by: ASPEN

MARVIN E. ASPEN, UNITED STATES DISTRICT JUDGE

 In this diversity action, plaintiffs Terry and Rosemary Doran brought suit against CPC International, Inc. ("CPC"), alleging that Terry Doran ("Doran") was negligently injured after receiving an electrical shock while climbing out of a precipitator located on CPC's premises. In turn, CPC filed a third-party complaint against Super Electric Construction Company ("Super Electric"), Doran's employer at the time of the accident, seeking indemnification and contribution. Subsequently, CPC was granted leave to amend the third-party complaint to add a count against Continental Casualty Company ("Continental") for declaratory relief. The following motions currently are pending before this court: (1) Super Electronic's motion to withdraw its answer and strike the ad damnum clause of the third-party complaint; (2) Super Electronic's motion to dismiss Count II of the third-party complaint; (3) Continental's motion for partial summary judgment on Count IV of the third-party complaint; and (4) CPC's motion for summary judgment on Count IV of the third-party complaint. We address each motion in turn.

 The allegations of the complaint, the amended third-party complaint, and the additional submissions by the parties reveal the following facts. At all relevant times, Doran was employed by Super Electric as an electrician. On June 22, 1988, CPC entered into an electrical maintenance agreement with Super Electric whereby it agreed to perform electrical maintenance on the premises of Corn Products, a business division of CPC. On January 5, 1989, Doran and several other Super Electric electricians were performing electrical repair services for CPC at their facility located in or around Summit, Illinois. Specifically, Doran's assignment was to repair a precipitator, a pollution control device used to collect ash particles from the smoke and fumes generated by an attached coal-fired boiler.

 CPC's precipitator contained groups of electrical wires, approximately forty feet in length, housed in a large chamber. During normal operation of the precipitator, the wires carried either a positive or negative electrical charge so as to attract ash of opposite polarity. Access into the precipitator for maintenance purposes transpired through a single ingress and egress hatch cover located at the top of the facility. As designed and intended to be operated, the hatch cover is part of an automatic safety system which prevents the hatch cover from being opened unless the electrical current to the precipitator is shut off and the precipitator is grounded.

 Upon arrival, Doran was advised that the precipitator was available for repairs. At that time, he observed that the hatch cover was open and that his coworkers were entering the precipitator. Doran entered the hatch along with his co-employees and proceeded down a metal ladder into the precipitator. While inside the precipitator, Doran and his fellow electricians determined that the wires could not be repaired because the area was still too hot from having been used earlier that day. Thus, they decided to postpone the work. As Doran prepared to exit the precipitator, he received a high voltage electrical shock from the electrical equipment attached to the interior of the facility. Doran claims that this electrical shock was caused by a malfunction in the automatic safety system which permitted the hatch cover to open although the precipitator was not properly grounded.

 Doran filed his two-count negligence complaint against CPC on October 31, 1990, seeking damages for personal injuries (Count I) and for loss of consortium (Count II). CPC answered, denying all material allegations of negligence and asserting the affirmative defense of plaintiff's comparative negligence. CPC also filed a three-count, third-party complaint against Super Electronic. Count I of the third-party complaint pleads a cause of action for breach of contract to obtain insurance. In Count II, CPC alleges that Super Electronic is contractually obligated to defend and indemnify CPC for all damages sustained in defense of Doran's suit. Finally, Count III pleads a cause of action for contribution pursuant to the Illinois Contribution Act, Ill. Rev. Stat. ch. 70, paras. 301 et seq.

 Pursuant to the electrical maintenance agreement between Super Electric and CPC, Super Electric purchased from Continental a comprehensive general liability policy, number 2262608, effective from January 1, 1989 to January 1, 1990. This policy contains a blanket additional insured endorsement pursuant to which CPC claims it is insured. On February 22, 1991, CPC filed an amended third-party complaint, adding Count IV, which seeks a declaration of coverage under the comprehensive general liability policy against Continental.

 II. Super Electronic's Motion to Strike the Ad Damnum Clause

 The ad damnum clause in Count III of CPC's third-party complaint provides:

 
WHEREFORE, Defendant/Third Party Plaintiff, CPC INTERNATIONAL INC. and its business division, CORN PRODUCTS, prays that if judgment is entered against it and in favor of the Plaintiff, judgment should also be entered in favor of CPC INTERNATIONAL INC. and its business division, CORN PRODUCTS, and against Third Party Defendant, SUPER ELECTRIC CONSTRUCTION COMPANY, for its pro rata share in such amount as is commensurate with its degree of culpability or misconduct which contributed to cause Plaintiff's injuries or damages.

 Super Electronic argues that this clause must be stricken from the third-party complaint for failure to state a cause of action upon which relief can be granted. Pointing to the recent Illinois Supreme Court decision of Kotecki v. Cyclops Welding Corp., No. 68568 (Ill. April 18, 1991) (1991 Ill. LEXIS 26), Super Electric contends that it cannot be held liable in contribution for an amount greater than its workers' compensation liability. We agree.

 While the majority of jurisdictions (45) do not allow contribution actions against an employer from a defendant sued in tort by an injured employee, Kotecki, slip op. at 7 (citing Sherman, Contribution from Employers: Availability, Good Faith Settlements and What the Future May Hold, 75 Ill. B.J. 568, 572 n. 52 (1987)), the Illinois Supreme Court recognized such an action in Doyle v. Rhodes, 101 Ill. 2d 1, 461 N.E.2d 382, 77 Ill. Dec. 759 (1984). In Doyle, the plaintiff brought suit for injuries he received while working as a highway flagman after being struck by an automobile driven by Rhodes. Id. at 4, 461 N.E.2d at 384. Rhodes then filed a third-party complaint seeking contribution from Doyle's employer. Id. The court, while recognizing that the Workers' Compensation Act ...


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