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09/26/95 ST. PAUL INSURANCE COMPANY ILLINOIS v.

September 26, 1995

ST. PAUL INSURANCE COMPANY OF ILLINOIS, AS SUBROGEE OF THE GREENBERG RADIOLOGY INSTITUTE, PLAINTIFF-APPELLANT,
v.
THE ESTATE OF ROBERT M. VENUTE, JR., D/B/A BOB VENUTE PLUMBING, AND WALTON SERVICES, INC., DEFENDANTS-APPELLEES, (ALFRED CAMINATA, JR., D/B/A R.J.'S WESTSIDE DEMO, INC., DEFENDANT; P.D.C. FACILITIES, INC., DEFENDANT AND COUNTERPLAINTIFF-APPELLANT, V. THE ESTATE OF ROBERT VENUTE, D/B/A BOB VENUTE PLUMBING, AND WALTON SERVICES, INC., COUNTERDEFENDANTS-APPELLEES).



Appeal from the Circuit Court of Lake County. No. 93-L-401. Honorable Stephen E. Walter, Judge, Presiding.

Petition for Leave to Appeal Denied January 31, 1996.

The Honorable Justice Doyle delivered the opinion of the court: McLAREN, P.j., and Bowman, J., concur.

The opinion of the court was delivered by: Doyle

JUSTICE DOYLE delivered the opinion of the court:

Plaintiff, St. Paul Insurance Company of Illinois (St. Paul), and defendant and counterplaintiff, P.D.C. Facilities, Inc. (P.D.C.), filed separate appeals from a trial court order which dismissed the counts in St. Paul's multicount complaint against defendants, the Estate of Robert Venute, Jr., d/b/a Bob Venute Plumbing (Venute), and Walton Services Inc. (Walton), and also dismissed all counterclaims by codefendants. We consolidated the appeals.

St. Paul, as subrogee of the Greenberg Radiology Institute (Greenberg), filed a fourth amended complaint (complaint) containing seven counts. Counts I through V were directed against P.D.C. and Alfred Caminata, Jr., d/b/a R.J.'s Westside Demo, Inc. (Westside), and sounded in negligence, res ipsa loquitur, and breach of contract. Count VI of the complaint was directed against Walton and sounded in negligence. Count VII of the complaint was directed against Venute and sounded in negligence.

P.D.C. filed separate amended counterclaims against Walton and Venute. The counterclaims sought contribution from Walton and Venute in the event P.D.C. was held liable to St. Paul.

Walton and Venute each motioned to dismiss the counts of St. Paul's complaint against them pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/1-101 et seq. (West 1994)). On September 8, 1994, the trial court entered an order granting the motions and dismissing counts VI and VII of the complaint. The order stated that the court found, as a matter of law, that St. Paul's complaint contained insufficient allegations to establish a duty owed by either Walton or Venute to St. Paul. The order also dismissed "any and all counterclaims or crossclaims by codefendants and causes of action based on same." The order contained language allowing immediate appeals pursuant to Supreme Court Rule 304(a) (Official Reports Advance Sheet No. 26 (December 22, 1993), R. 304(a), eff. February 1, 1994).

On appeal, St. Paul contends that we should reinstate its claims against Walton and Venute because the trial court erred in determining that they did not owe it a duty. P.D.C. contends that the trial court erred in dismissing its counterclaims against Walton and Venute.

The relevant facts, as alleged in St. Paul's fourth amended complaint, are as follows. St. Paul, an insurance company, provided property and business interruption insurance coverage to Greenberg for a one-story building containing a medical facility in Highland Park (the building). Greenberg owned and operated the building. In October 1990, Greenberg retained P.D.C. to design, engineer, and construct a suite in the building suitable to house a very expensive piece of medical diagnostic equipment known as a Positron Emission Tomography scanner (PET scanner).

P.D.C. retained Westside as a subcontractor to perform demolition work in the building in preparation for the construction of the PET scanner suite. During the course of the work, either P.D.C., Westside, or another of P.D.C.'s subcontractors cut a water pipe and left it cut and uncapped. The cut and uncapped pipe was located directly above the place in Greenberg's suite where the PET scanner was ultimately positioned.

After Greenberg completed the renovation of its suite and installed the PET scanner in the suite under the cut, uncapped water pipe, Greenberg leased a vacant, unimproved portion of the building to Hawthorn Lithotripter Partners (Hawthorn). Hawthorn retained Walton to act as the general contractor for the renovation of Hawthorn's area of the building. Walton retained Venute, a plumbing contractor, to do plumbing renovation work in the Hawthorn area.

Hawthorn's area of the building contained various water lines and branch water lines which had been shut off and were not being used prior to Greenberg's lease of the area to Hawthorn. Some of the water lines in the Hawthorn area, which were unobstructed and in plain view, had leaks and were open-ended and uncapped.

One of the water lines ran from Hawthorn's area into adjoining rooms and through them into Greenberg's area of the building. This water line was designated branch B1-1 on a layout of the water lines in the building attached to St. Paul's complaint. In the Greenberg area, the B1-1 line was the pipe which had been cut and left uncapped above the PET spanner. In Hawthorn's area, the B1-1 line was "unobstructed and in plain view so that it could be easily traced from where it originated in the Hawthorn portion of the building, to where it entered the Greenberg Institute." The B1-1 line was an inactive or "dead" line which had been taken out of service prior to Hawthorn's lease of its area. The Bl-1 line was shut off at a main valve located in ...


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