APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
February 2, 1994
WILLIAM A. WEINERT AND VIRGINIA WEINERT, PLAINTIFFS-APPELLANTS
NATIONAL ADVERTISING COMPANY, DEFENDANT-APPELLEE -- NATIONAL ADVERTISING COMPANY, THIRD-PARTY PLAINTIFF-APPELLANT V. ALL-SIGN CORPORATION, THIRD-PARTY DEFENDANT-APPELLEE
Appeal from the Circuit Court of Cook County. Honorable Paddy McNamara, Judge Presiding.
Tully, Cerda, Greiman
The opinion of the court was delivered by: Tully
PRESIDING JUSTICE TULLY delivered the opinion of the court:
This case arises from the personal injuries incurred by plaintiff, William A. Weinert, when he fell from the top of a signboard, owned by defendant, National Advertising Company (National) and repaired by codefendant, All-Sign Corporation (All-Sign), plaintiff's employer. Plaintiff filed suit against National, alleging negligence and violations of the Structural Work Act (the Act) in its maintenance of the billboard. National subsequently filed a third-party complaint against All-Sign for implied and express indemnification and breach of contract for failure to procure insurance.
All-Sign then filed a motion to dismiss the third-party complaint. On January 21, 1985, the trial court found count I stated a cause of action for implied indemnity. In the same order the court struck count III for breach of contract, but National was granted leave to amend count III. No order was entered concerning count II for contribution; moreover, the orders entered were not final and appealable orders, since the case had not been disposed of and a cause of action was still pending.
On November 21, 1989, National obtained a final order of summary judgment, but as to count III, the trial court specifically granted leave to amend this count. On July 6, 1990, National was given leave to amend its Second Amended Third-Party Complaint, which was filed on July, 6, 1990. This complaint essentially restated the prior counts against All-Sign. On December 7, 1990, the trial court, pursuant to All-Sign's motion, dismissed the entire Second Amended Third-Party Complaint.
On review, we initially consider the underlying cause of action as between plaintiff and defendant. Should we find that the trial court improperly entered summary judgment for defendant on plaintiff's cause of action, we would then need to consider whether National's claims for contribution and indemnity were improperly dismissed.
Plaintiff was employed by All-Sign to do work on a billboard sign, owned by National, located near 163rd Street and I-294 in Markham, Illinois. While working on the sign, plaintiff fell and suffered numerous injuries. According to plaintiff's complaint, National was negligent in that it failed to equip the sign with adequate guard rails, angle irons or hooks, and failed to provide an access road to the bill board, thus, preventing proper erection of a scaffold via the use of plaintiff's truck. Plaintiff was engaged in hoisting the sign facing by means of a wire, for purposes of affixing it to the billboard structure.
Defendant failed to equip the billboard with platforms or catwalks and failed to provide an access road to the sign so that it could be serviced properly. Plaintiff also alleged violations of the Act.
I. SUMMARY JUDGMENT AGAINST PLAINTIFF
The trial court entered summary judgment in National's favor, finding there existed no genuine issue of material fact. In order for plaintiff to hoist the display facing, it was necessary that he stand on top of the sign. The wire holding up the sign then snapped, causing plaintiff to fall to the ground approximately fifty feet below.
The Act reads in pertinent part:
"All scaffolds, hoists, cranes, stays, ladders, supports * * * erected or constructed * * * for the use in the erection, repairing, alteration, removal, or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed in a safe suitable and proper manner, and shall be so erected and constructed, placed and operated as to give the proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same and in such manner as to prevent the falling of any material that may be used or deposited thereon." Ill. Rev. Stat. 1983, ch. 48, par. 60.
The Act also expressly creates a private cause of action to anyone injured thereunder. The applicability of the Act turns upon whether or not the billboard in itself could be considered a "scaffold" or "other structure" to be used by workers to repair or work on the sign itself.
In this case, due to the lack of an access road, plaintiff was not able to properly rig a hoist to support himself on the sign. Moreover, the sign itself was not self-equipped with railings or a catwalk. Therefore, it would appear that there exists several issues of material fact and the trial court erred in disposing of this case on summary judgment.
II. NATIONAL'S THIRD-PARTY COMPLAINT AGAINST ALL-SIGN
National has filed a third-party complaint against All-Sign alleging that All-Sign must bear all or some of the responsibility for plaintiff's fall. National claims it was not in charge of the work and had no control over the work. The trial court, Judge Quinn, agreed and found as a matter of law that National was not responsible. However, Judge Paddy McNamara later found there was no basis to support the third-party complaint and dismissed the third-party complaint.
Count I of National's complaint alleged a cause of action for implied indemnity. Illinois courts have allowed indemnity in some situations among joint tortfeasors. (See Heinrich v. Peabody International Corp. (1987), 117 Ill. 2d 162, 510 N.E.2d 889.) In the landmark decision of Skinner v. Reed-Prentice (1978), 770 Ill. 2d 1, the Illinois Supreme Court struck down the rule prohibiting contribution among joint tortfeasors. Although Skinner was later codified as the Contribution Act (740 ILCS 100/1 et seq. (West 1992)) the Act does not specifically abolish all forms of implied indemnity. In Allison v. Shell Oil (1986), 113 Ill. 2d 26, 495 N.E.2d 496, the supreme court abolished one form of implied indemnity, to wit, active/passive negligence. Allison, however, did not decide the fate of other forms of implied indemnity such as vicarious liability, where there is an employer-employee or master-servant relationship. Shaheed v. Chicago Transit Authority (1985), 137 Ill. App. 3d 352, 484 N.E.2d 542.
The fundamental premise for implied indemnity is that the indemnitee, although without fault, has been subjected to liability solely because of the legal relationship with the plaintiff or because of a non-delegable duty arises out of common or statutory law. Frazer v. A.F. Munsterman, Inc. (1988), 123 Ill. 2d 245, 527 N.E.2d 1248.
Nowhere in National's complaint has there been alleged a pre-tort relationship between the parties upon which a claim for implied indemnity could be based. The relationship of All-Sign to National is that of independent contractor. Because an independent contractor is not vicariously liable for the acts of the contractee, the trial court properly dismissed count I of National's third-party claim for implied indemnity.
We next address count III which was based upon All-Sign's express agreement to indemnify National. The express indemnification provision of the contract between the parties is void and unenforceable under the Indemnity Act (Ill. Rev. Stat. 1983, ch. 29, par. 61). A contract which purports to relieve a tortfeasor of some or all of its liability, premised upon its own negligence, cannot stand under the Act. Motor Vehicle Casualty Co. v. GSF Energy, Inc. (1989), 193 Ill. App. 3d 1, 549 N.E.2d 884.
We next address whether the trial court improperly summarily dismissed the entire third-party second amended complaint, including count II for contribution, where All-Sign did not include this count in its motion to dismiss. We initially note that this was procedurally improper where the count was not at issue in the motion.
Moreover, the third-party complaint evidences both the possibility and probability of recovery by National pursuant to the Contribution Act. (Ill. Rev. Stat. 1983, ch. 70, par. 301.) Should the trial court find National liable on remand, National retains its right of possible contribution against All-Sign. Whether and to what extent each of the parties is liable is a question for the trier of fact.
Finally, National contends the trial court improperly dismissed count IV for All-Sign's failure to procure insurance for itself. The express terms of All-Sign's contract state:
"9. The Contractor agrees to maintain at its own expense insurance covering the obligations set forth by this agreement, which shall not be less than: (a) Comprehensive Liability Insurance (including Contractor's Protective Insurance if subcontractors are used in the performance of any work.) Contractual insurance (for liability assumed under this agreement) * * *."
The agreement merely requires All-Sign to procure insurance to protect itself. Nowhere does it state that All-Sign must procure insurance for National. Therefore, there is no factual basis for a count based in breach of contract for failure to procure insurance.
For all of the foregoing reasons, the summary judgment in favor of National is hereby reversed and remanded and the dismissal of counts I and IV of the third-party complaint is hereby affirmed. The dismissal of counts II and III is reversed and these issues are remanded to the trial court for proceedings not inconsistent with this opinion.
Affirmed in part; reversed in part and remanded.
CERDA, J., and GREIMAN, J., concur.
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