The opinion of the court was delivered by: BRIAN BARNETT DUFF
This suit arises out of the fire that devastated telephone service in the Hinsdale, Illinois area for several months in 1988. The facts are more fully set forth in this court's earlier opinion in this matter, Arkwright v. Garrett & West, 90 C 6584, slip op. (N.D.Ill. May 23, 1991) (Arkwright I). Arkwright was Illinois Bell's insurer at the time of the fire and is pressing this action as Bell's subrogee. Arkwright has sued Garrett & West (G&W) and AT&T Technologies (AT&T) for $ 47 million - the costs it incurred in replacing the equipment damaged in the fire. Arkwright has moved for a finding of good faith in its proposed settlement with AT&T for $ 5 million. Arkwright has also offered to settle with G&W for $ 11 million, but that offer has not yet been accepted. G&W opposes the AT&T settlement, claiming that it is not being made in "good faith" as required by the Illinois Contribution Act, Ill.Rev.Stat. ch. 70, par. 302. This court has carefully considered the parties arguments and the documentary evidence they have submitted in support of their respective positions. For the reasons discussed below, it finds the settlement to be in good faith.
The Hinsdale Central Office is a switching and transmission station for Illinois Bell's telephone service. It contains a large number of various types of cables to effectuate its purpose, which were housed together in 'trays' running along the ceiling of the first floor of the HCO. Those trays were, in large part, filled to overflowing with cable. Mixed together in the trays were both armored and DC cables. Armored cable is a group of insulated electrical wires housed in a flexible metal sheath. DC cable is surrounded by insulating material.
Prior to the fire Illinois Bell, through a competitive bidding process in which both AT&T and G&W participated, hired G&W to 'mine' obsolete cables from the tray. That is, G&W was to pick out those cables no longer in use and remove them from the cable trays, leaving functional cables intact. G&W performed this task between February and April, 1988. The fire occurred on May 8, 1988.
After the fire the Illinois Commerce Commission and the Office of the State Fire Marshal initiated a joint investigation into the causes and origin of the blaze, and prepared a report detailing their findings (the ICC report or the report). The report cites, as a contributing factor to the fire, the presence of armored and DC cable in the same trays and states that "the significant difference between armored cable and other power cables is that the flexible metal sheath is connected to ground. Since the flexible metal sheath is not insulated, it will conduct electric current when contacted by an energized power cable with sufficiently damaged insulation." ICC Report § 5.2. The ICC listed evidence supporting the inference that some DC cable had become damaged during the G&W cable-mining operation, thus setting the stage for the fire to occur, specifically: Illinois Bell employees witnessed an "arcing" incident while a G&W worker was mining cable in the area where the fire eventually began; after the fire, workers discovered a number of damaged cables, as well as "the unauthorized tool used to create the damage" in the cable trays. Id.
The ICC drew the following conclusion regarding the cause and origin of the fire:
The fire was accidental in nature and caused by an electrical fault.
An armored cable contacted a damaged dc power cable.
A dc power cable was most likely damaged at some time during cable mining operations.
Contributing causation factors were: the increasing and cyclic ambient and cable temperature variations, building vibrations, and the commercial power interruptions which may have resulted in cable motion. These factors would have had no causal effect if the dc power cable insulation had not been damaged.
Illinois Commerce Commission ...