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07/12/96 LEO JANDRISITS AND DELORES JANDRISITS v.

July 12, 1996

LEO JANDRISITS AND DELORES JANDRISITS, PLAINTIFFS,
v.
VILLAGE OF RIVER GROVE, A MUNICIPAL CORPORATION, ROSE NORMAN, AND EDWARD NORMAN, DEFENDANTS, VILLAGE OF RIVER GROVE, THIRD-PARTY PLAINTIFF-APPELLANT, V. TRIGGI CONSTRUCTION, INC., THIRD-PARTY DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. The Honorable Patrick McGann, Judge Presiding.

Rehearing Denied August 29, 1996. Released for Publication October 4, 1996.

The Honorable Justice Egan delivered the opinion of the court. Zwick, P.j., and Rakowski, J., concur.

The opinion of the court was delivered by: Egan

JUSTICE EGAN delivered the opinion of the court:

This appeal involves construction of that part of the Indemnity Act (the Act) which voids agreements that indemnify persons for their own negligence. 740 ILCS 35/1. The Village of River Grove (Village) appeals from an order granting summary judgment to Triggi Construction, Inc. (Triggi). The basis of the judge's holding was that the indemnity agreement between Triggi and the Village violated the Act.

In 1987, the Village hired Triggi to do sidewalk replacement work in the Village; the work was completed in 1987. Triggi replaced several sidewalk squares in front of a residence at 2458 Erie Street.

In March 1989, Leo Jandrisits (Leo) slipped on snow-covered ice on the sidewalk in front of 2458 Erie Street. He and his wife, Delores, filed a complaint against the Village, alleging that the Village negligently caused the sidewalk to become and remain in a dangerous and hazardous condition, failed to inspect and repair the sidewalk and failed to warn pedestrians of the dangerous condition of the sidewalk. Specifically, it was alleged that the Village allowed the sidewalk to "become depressed and situated with such a decline of its surface, so as to allow various artificial accumulations of ice to form." In an amended complaint the Jandrisitses added counts against the owners of the residence in front of which Leo fell. None of the complaints contained any allegations against Triggi. Summary judgment was subsequently entered for the owners of the residence; and no appeal was taken from that order.

The Village filed a motion for summary judgment and argued that the depression in the sidewalk was minor and not actionable. In response, the Jandrisitses produced an affidavit executed by Peter Majewski, an architect and the Jandrisitses' expert. According to Majewski, the replacement of the sidewalk slabs on either side of where Leo fell "created or accentuated an unnatural basin that created an artificial accumulation of ice." The Village's motion for summary judgment was denied on June 18, 1991.

On August 29, 1991, the attorney for the Village sent a letter to Triggi and Triggi's insurance carrier tendering the defense of the Jandrisitses' complaint. The letter alleged that the "plaintiff is claiming that the work done by Triggi caused an artificial accumulation of ice to form." The letter also referred to the contract between Triggi and the Village and to a certificate of insurance executed by Triggi which showed the Village as an additional insured on Triggi's general liability policy and excess liability policy. The letter concluded that "because plaintiff is basing his claim of injury solely on the repairs done by Triggi Construction, the Village is entitled to coverage as an additional insured under the aforementioned policies of insurance." (Emphasis added.) Triggi and its insurer denied the tender.

On February 13, 1992, the Village filed a third-party complaint against Triggi. Count I sought contribution from Triggi; count II alleged that Triggi had breached its contract by refusing to defend and indemnify the Village and to procure insurance; and count III asked for a declaration that Triggi was obliged to defend and indemnify the Village in the Jandrisits action.

At this point it is appropriate to explain that the construction contract between Triggi and the Village required Triggi to defend and indemnify the Village for losses "caused or resulting or claimed to be caused or resulting from the work or services of the Contractor or those for whom he is responsible."

After the Village took the deposition of Majewski, it filed a motion for summary judgment against Triggi on counts II and III. It based its motion on the deposition testimony of Majewski, which was in substance the same as his previously submitted affidavit. Triggi filed a cross-motion for summary judgment on those counts. The trial judge denied the Village's motion for summary judgment and granted Triggi's motion. As noted, the judge based his ruling on his holding that the agreement between the Village and Triggi violated the Indemnity Act.

The judge also denied the Village's second motion for summary judgment in the Jandrisits action, and the case was assigned for trial. (The record does not contain the second motion for summary judgment.) Triggi entered into a settlement agreement with the Jandrisitses, and count I of the third-party complaint, the contribution action, was dismissed. On the following day the Village also settled with the Jandrisitses.

We note that the judge who denied the Village's second motion for summary judgment said that "this condition existed in the light most favorable to the Plaintiff for at least a year. Evidence exists from which a jury could conclude that the defect was apparent to a trained inspector when the work was completed. The condition recreated itself at each rainfall or thaw. The Village had a multi-department ...


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