Northern Telecom would have taken none of the actions for which G&W now seeks to impose liability. That proposition is not true in worker's compensation cases.
The workers compensation laws shield employers from unlimited liability for torts against employees. In exchange, employers give up some of the defenses to workers' suits which were available to them at common law, such as assumption of risk. In other words, employers' duties to their employees are not defined by the act providing for worker's compensation; rather, they have tort duties to their employees ab initio. The Act simply permits them to satisfy those duties by making worker's compensation payments.
The Contribution Act codifies a strong public policy in favor of allocating the burden of a loss equitably among those responsible for that loss. See Stephens v. McBride, 97 Ill. 2d 515, 522-23, 74 Ill. Dec. 24, 455 N.E.2d 54 (1983). Whenever that policy might be subverted, as it would be here if both Northern Telecom and G&W are in fact liable for the damages at the HCO, the court is required to balance the policy supporting the right to contribution with that supporting immunity from contribution in each particular case.
In Stephens, the court balanced the policy supporting contribution against that supporting the notice provisions of the Tort Immunity Act, Ill.Rev.Stat. ch. 85, par. 8-102. The court found that the harm to municipal entities if the notice requirement were waived in contribution actions would be minimal. The court explained that although "timely notice allows the governmental entity the opportunity to examine the location of the occurrence at an early date so that conditions do not change and evidence does not become stale, to plan its budget in light of prospective liabilities, to settle claims and avoid costly civil litigation, and to correct the alleged defective condition so that future injuries and liabilities may be avoided", the fact that the statute itself permitted prospective plaintiffs up to a year to notify the municipality of their claims undermined most of these goals. Accordingly, the court found that waiving the notice period entirely for contribution claims would not significantly harm municipalities.
Here, the court must balance the policy supporting the freedom to contract against that supporting the availability of contribution. The policy supporting the freedom to contract is expressed in both the United States Constitution (Article 1, § 10) and the Illinois Constitution (Article 1, § 16). The policy supporting the right to seek contribution is not. The court is thus compelled to the conclusion that the former policy would trump the latter.
Furthermore, Illinois has a public policy supporting certainty in business relations, strongly supported by Illinois courts. See, for example, Harris v. Walker, supra, 119 Ill. 2d at 548 and cases cited therein. Here, there is no doubt that the contract in issue was fairly bargained for. To subvert the explicit intent of the parties in this case would violate clear and important public policies in Illinois and the United States, and this court is convinced that Illinois courts would not do so.
G&W's remaining arguments also fail to convince this court G&W argues, correctly, that the mere existence of a contract between the parties does not of itself prohibit a tort action. Indeed, it is entirely feasible that the breach of a contract could give rise to both tort and contract claims. See Knox College v. Celotex Corp., 88 Ill. 2d 407, 420, 58 Ill. Dec. 725, 430 N.E.2d 976 (1981). That does not mean that all contracts, regardless of their specific language, must be so construed. In other words, to say that the fact that a contract exists is not a bar to a tort action is not to say that all contracts must be construed to permit such an action, despite explicit language to the contrary.
G&W cites Scott & Fetzer Co. v. Montgomery Ward & Co., 112 Ill. 2d 378, 98 Ill. Dec. 1, 493 N.E.2d 1022 (1986), in support of its argument that it is entitled to bring in Northern Telecom as a third-party. The suit in Scott & Fetzer arose out of a warehouse fire. One of the tenants in the warehouse, Montgomery Ward, had contracted with a company to install a fire protection system. The system failed, a fire occurred and a number of warehouse tenants, in addition to Montgomery Ward, suffered extensive property damage. The court determined that the other tenants in the warehouse whose property was damaged in the fire had a right to sue both the company which had installed the fire protection system and Montgomery Ward. Thus, in contrast to this case, the action by non-contracting parties was not brought pursuant to the Contribution Act.
The court considered the effect of an exculpatory clause on a claim for contribution because Montgomery Ward, the defendant in the initial suit, attempted to bring in the company which had installed the fire protection system as a third-party defendant. The court refused to construe the exculpatory clause as barring the third-party suit since its language did not explicitly do so. Id. at 395. That is quite a different factual and procedural setting from the one here. In the instant case, the contract explicitly bars a tort action between Illinois Bell and Northern Telecom. Indeed, the court implied in Scott & Fetzer that this type of bar would be binding. See id. at 391.
The contract between Northern Telecom and Illinois Bell preempts tort duties and thus precludes tort liability. Accordingly, Northern Telecom cannot be held liable to G&W under the Contribution Act.
Northern Telecom's motion for summary judgment is granted.
BRIAN BARNETT DUFF
UNITED STATES DISTRICT COURT
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