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12/21/95 CURTIS BRAYE v. ARCHER-DANIELS-MIDLAND

December 21, 1995

CURTIS BRAYE, PLAINTIFF,
v.
ARCHER-DANIELS-MIDLAND COMPANY, A CORPORATION, DEFENDANT-THIRD PARTY PLAINTIFF-APPELLEE, V. ALL TRI-R, INC., THIRD PARTY DEFENDANT-APPELLANT.



Appeal from Circuit Court of Macon County. No. 93L18. Honorable John K. Greanias, Judge Presiding.

Released for Publication December 21, 1995. Petition for Leave to Appeal Allowed April 3, 1996. As Corrected July 30, 1996.

Honorable Rita B. Garman, J., Honorable Robert J. Steigmann, J., Concurring, Honorable Robert W. Cook, P.j., Concurring IN Part; Dissenting IN Part, Justice Garman delivered the opinion of the court:

The opinion of the court was delivered by: Garman

The Honorable Justice GARMAN delivered the opinion of the court:

Third-party defendant All Tri-R, Inc. (All Tri-R), brings this interlocutory appeal pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308) following the decision in the circuit court of Macon County to allow Archer-Daniels-Midland Company (ADM) to amend its third-party complaint. We are called upon to consider the following question certified by the circuit court:

"Whether the liability cap in third[-]party actions provided to an employer who pays an injured employee's worker[s'] compensation benefits may be waived by contract, and if so, whether a contract which states:

'If [All Tri-R's] work under the order involves operations by [All Tri-R] on the premises of or one of its customers, [All Tri-R] shall take all necessary precautions to prevent the occurrence of any injury to person or damage to property during the progress of such work and, except to the extent that any such injury or damage is due solely and directly to [ADM's] or its customer's negligence, as the case may be, [All Tri-R] shall pay for all loss which may result in any way from any act or omission of [All Tri-R], its agents, employees or subcontractors[]'

is an enforceable contract for contribution."

We answer the first part of the question in the affirmative, and the second part in the negative.

The underlying case arises from a construction accident that occurred on June 12, 1991. Plaintiff Curtis Braye was employed as a welder by All Tri-R, a construction firm, and working on construction of a boiler at ADM's cogeneration plant in Decatur. Braye and his partner, Cecil Baker, were on a motorized scaffold at the 88-foot level of the boiler when the scaffold swung out from under their feet. Braye's lanyard failed, and he fell to the ground, suffering numerous injuries. He filed a workers' compensation claim against All Tri-R, which was settled for $172,000.

On January 25, 1993, Braye filed a complaint against ADM for alleged violations of section 1 of the Structural Work Act (740 ILCS 150/1 (West 1992)). ADM moved to dismiss the complaint. In response, Braye filed an amended complaint on February 3, 1994. ADM denied the allegations of the amended complaint and brought a third-party action against All Tri-R for contribution, limited to the amount paid to Braye in workers' compensation benefits. All Tri-R denied the allegations of the third-party complaint.

On March 9, 1995, ADM moved to amend its third-party complaint against All Tri-R. ADM sought unlimited contribution based on the boiler construction contract and the fifth district's decision in Herington v. J.S. Alberici Construction Co. (1994), 266 Ill. App. 3d 489, 639 N.E.2d 907, 203 Ill. Dec. 348. The trial court denied the motion, finding the contract was unenforceable under the Construction Contract Indemnification for Negligence Act (Indemnification Act) (740 ILCS 35/0.01 et seq. (West 1994)).

On March 29, 1995, ADM filed a new motion to amend its third-party complaint, based upon a statement on the back of a purchase order which also governed the construction work on the boiler. At the hearing, the trial court found the purchase order did not violate the Indemnification Act and should be applied under Herington. Thus, it allowed ADM's motion to file an amended third-party complaint seeking unlimited contribution. All Tri-R requested leave to file an interlocutory ...


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