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August 18, 1994


Appeal from the Circuit Court of St. Clair County. No. 90-L-938. Honorable Roger M. Scrivner, Judge Presiding.

Maag, Goldenhersh, Welch

The opinion of the court was delivered by: Maag

JUSTICE MAAG delivered the opinion of the court:

Carl Herington and Robert Cowder filed suit against J.S. Alberici Construction Co., Inc. (Alberici), for injuries sustained on November 27, 1989. Herington and Cowder were employed by Shield Painting Co. (Shield) at the time of their injury. The plaintiffs were engaged in work taking place on Lock and Dam 22, which spans the Mississippi River from Missouri to Illinois. Each plaintiff sought damages due to alleged violations of the Illinois Structural Work Act (740 ILCS 150/0.01 et seq. (West 1992)) and common law negligence. It is undisputed that the injuries occurred in Illinois.

Alberici initially filed several procedural motions which are unrelated to this appeal, and then on January 4, 1991, it filed its answer to plaintiffs' complaint, along with a four-count third-party complaint seeking contribution from Shield under the Joint Tortfeasor Contribution Act (Contribution Act) (740 ILCS 100/0.01 et seq. (West 1992)).

The third-party complaint was amended twice. In the second amended third-party complaint, Alberici requested in separate counts both contribution under the Contribution Act and "indemnification" from Shield "in such an amount as is attributable to Shield's share of the liability". The "indemnity" claim was based on paragraph 8(c) of the general conditions of the written subcontract between Alberici and Shield. Paragraph 8(c) states:

"(c) For all Subcontract work performed in Illinois or performed by Illinois Subcontractors, the following term is in effect:

Subcontractor hereby assumes the entire liability for its own negligence and the negligence of its own employees; in addition, Subcontractor hereby assumes the entire liability arising from any alleged violation of the Structural Work Act (Chapter 48, Sections 60-69 Ill.Revised Statutes) that Subcontractor knew of or by the exercise of ordinary care should have known of; Subcontractor agrees to indemnify and save harmless Contractor and its agents, servants and employees, from and against all loss, expense, damage or injury, including legal fees, that Contractor may sustain as a result of any claims predicated or [sic ] said allegations of Subcontractor's own negligence or on Subcontractor's alleged violation of the Structural Work Act as above set forth. This provision shall specifically not require Subcontractor to indemnify Contractor from Contractor's own alleged negligence in violation of Chapter 29, Section 61 of the Illinois Revised Statutes. In the event claim of any such loss, expense, damage or injury, as above defined and limited, is made against Contractor, its agents, servants or employees, Contractor may: (1) withhold from any payment due or hereafter becoming due to Subcontractor under the terms of this contract, an amount sufficient in Contractor's judgment to protect and indemnify Contractor from all such claims, expenses, legal fees, loss, damage or injury as above defined and limited; or (2) require Subcontractor to furnish a surety bond in such amount so determined; or (3) require Subcontractor to provide suitable indemnity acceptable to Contractor."

Shield moved to dismiss the complaint. Three arguments were advanced below and in this court in support of the motion: (1) The indemnification agreement contravenes public policy as set forth in the Construction Contract Indemnification for Negligence Act (the Anti-Indemnity Statute) (740 ILCS 35/1 (West 1992)); (2) The indemnification agreement contravenes public policy because it attempts to convert an indemnity action into an agreement for contribution without the good faith settlement provisions and dismissal which flow from a settlement under the Contribution Act; and (3) The prayer for indemnification seeks to circumvent the decision in Kotecki v. Cyclops Welding Corp. (1991), 146 Ill. 2d 155, 585 N.E.2d 1023, 166 Ill. Dec. 1, which limits an employer's contribution liability to the amount of the worker's compensation liability.

The circuit court granted the motion to dismiss the indemnitycounts. The dismissal order was certified pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), and Alberici appealed. The plaintiffs have settled their claims and are not parties to this appeal.

Alberici advances several arguments in support of its appeal of the dismissal order. These will be addressed seriatim.


Alberici first claims that Missouri law should be applied to this case. The following facts are cited by Alberici: (1) The subcontract contains a choice-of-law provision which specifies Missouri law as applicable to the subcontract; (2) Shield and Alberici are both Missouri Corporations; (3) The contract was entered into in Missouri; (4) The work was to be performed in both Missouri and Illinois; and (5) Both plaintiffs are domiciled in Missouri.

According to Alberici, these Missouri contacts, along with the choice-of-law provision in the contract, require the application of Missouri law. Alberici claims that the indemnification requested is permissible under Missouri law. No authority is cited in support of the claim that Missouri law would allow the indemnification request. Rather, Alberici focuses exclusively on a choice-of-law argument.

The primary authority that Alberici relies upon to support its position is Jarvis v. Ashland Oil, Inc. (1985), 17 Ohio St.3d 189, 478 N.E.2d 786. Jarvis is similar to the case at bar, but it is also factually distinct. Jarvis concluded that under the facts of that case and the principles set forth in Restatement (Second) of ...

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