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06/20/94 CAROLYN BARNEY v. UNITY PAVING

June 20, 1994

CAROLYN BARNEY, PLAINTIFF-APPELLANT,
v.
UNITY PAVING, INC., AN ILLINOIS CORPORATION, DALE D. RODRIQUEZ, THE CHICAGO TRANSIT AUTHORITY, A MUNICIPAL CORPORATION, JAMES R. PRUITT, THE CITY OF CHICAGO, A MUNICIPAL CORPORATION, DEFENDANTS, AND PASCHEN CONTRACTORS, INC., A DELAWARE CORPORATION, AND CASE INTERNATIONAL COMPANY, AN ILLINOIS CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable James S. Quinlan, Judge Presiding.

As Modified On Denial of Rehearing August 15, 1994. Released for Publication August 25, 1994. Petition for Leave to Appeal Denied December 6, 1994.

Buckley, O'connor, Jr., Manning

The opinion of the court was delivered by: Buckley

MODIFIED ON DENIAL OF REHEARING

JUSTICE BUCKLEY delivered the opinion of the court:

Plaintiff, Carolyn Barney, filed a four-count second-amended complaint against numerous defendants, including Paschen Contractors, Inc. and Case International, Inc. ("defendants"), to recover for injuries she sustained when a truck operated by an employee of Unity Paving, Inc. ("Unity"), a subcontractor, collided with the rear end of a bus in which plaintiff was riding. Count IV asserted that defendants breached their contract with the City of Chicago ("City") because they failed to require the subcontractor to carry motor vehicle liability insurance. The trial Judge granted defendants' motion for summary judgment on the ground that plaintiff was not a third-party beneficiary of the contract between defendants and the City. On appeal, plaintiff contends: (1) that the general contract between the City and defendants obligated defendants to require their subcontractors to have motor vehicle insurance and to furnish a certificate of such insurance to the City before any work was started; and (2) that the trial Judge erred in holding that plaintiff was not a third-party beneficiary of the general contract.

In 1983, the City contracted with defendants to straighten out the Lake Shore Drive S-curve. According to the provisions of the general contract between defendants and the City, both the defendants and any subcontractors they hired were required to obtain certain liability insurance prior to the commencement of any work. The relevant portion of the general contract reads as follows:

"104. CONTRACTOR'S INSURANCE

The Contractor shall not commence work under this Contract until he has obtained all insurance required under this section, in the amounts hereinafter specified, and such insurance has been approved by the Commissioner, nor shall the Contractor allow any subcontractor to commence work on his subcontract until all similar insurance required of the subcontractor has been so obtained and approved.

b. Public Liability and Property Damage Insurance.

The Contractor shall carry at all times while executing such work as covered in this Specification and Contract or any mutually agreedupon change or amendment thereof or addition thereto, Public Liability Insurance, being held responsible for all damages the City of Chicago may have to pay to individuals or corporations in consequence of any acts or neglects of said Contractor or any of his employees or any of [sic ] subcontractors or his employees, if any, in connection with the work called for by this Contract. * * * This provision shall be construed as requiring the Contractor and any subcontractor who may employ a subcontractor or subcontractors to take out and maintain Contractor's Protective Insurance and Contractor's Contractual Insurance.

The Contractor shall require subcontractors, if any, similarly to take out and maintain insurance of such nature and in such amounts as the Contractor considers necessary to protect himself.

The aforesaid public liability and property damage insurance shall also include indemnity insurance against any and all claims that may arise during the course of the Contract under the provisions of the 'Scaffolding Act'.

[The Contractor shall also take out and maintain, during the life of the Contract, Owner's Protective Insurance for the protection of the City of Chicago in the amounts as specified in this Section 220A for ...


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