the lading. These contract provisions may be applicable, thus precluding the dismissal of the indemnity claim of Santa Fe.
Santa Fe also relies on implied indemnity, contending it was acting pursuant to instructions from Robbins as to the use of nonrefrigerated boxcars. Santa Fe also points to evidence that Robbins supervised Harborside's loading of the boxcars. Following the passage of Illinois's Contribution Act, the Illinois Supreme Court has limited the continuing application of common law implied indemnity. See American National Bank & Trust Co. v. Columbus-Cuneo-Cabrini Medical Center, 154 Ill. 2d 347, 609 N.E.2d 285, 287-89, 181 Ill. Dec. 917 (1992); Thatcher v. Commonwealth Edison Co., 123 Ill. 2d 275, 527 N.E.2d 1261, 1263, 123 Ill. Dec. 486 (1988); Frazer v. A.F. Munsterman, Inc., 123 Ill. 2d 245, 527 N.E.2d 1248, 1252-55, 123 Ill. Dec. 473 (1988). Implied indemnity is still viable under certain circumstances in strict liability actions where the indemnitee is faultless, see Frazer, 527 N.E.2d at 1254-55, and where a faultless principal has been held vicariously liable for conduct of its agent, American National, 609 N.E.2d at 289; Richardson v. Chapman, 175 Ill. 2d 98, 676 N.E.2d 621, 630-31, 221 Ill. Dec. 818 (1997). It may also be the rule that a faultless agent is entitled to indemnification from the principal. Cf. Wright v. City of Danville, 174 Ill. 2d 391, 675 N.E.2d 110, 119, 221 Ill. Dec. 203 (1996). It would be consistent with Frazer to reach such a conclusion, as long as the agent is without fault. For an agent to be faultless in following another's instructions, it must have had no duty to recognize the error in the principal's instruction or to otherwise act to prevent the injury. See Frazer, 527 N.E.2d at 1255 (owner of truck that caused injury not entitled to implied indemnity as against manufacturer of truck since owner was negligent in that it knew or should have known of the defect in the truck).
To the extent that spoilage of the milk was caused in part by Santa Fe's or Harborside's contribution to delay or Harborside's failure to properly load or store the milk, such party's fault would preclude the application of implied indemnity. The only possible scenario where Santa Fe or Harborside could be found liable on the bailment claims while being faultless would be if the only causes of the spoilage was Robbins's instruction to use unrefrigerated cars and/or delay caused solely by Robbins, with the other defendants not contributing to delay and/or having no duty as regards the selection of unrefrigerated cars. Since that possibility cannot presently be eliminated, the possibility will be left open that Santa Fe and Harborside may be able to pursue implied indemnity as against Robbins. The issue may be more fully addressed at trial.
Santa Fe and Harborside are warned, however, that they must adequately brief both contribution and indemnity in their pretrial order trial briefs or such claims will be considered waived. Their briefing on these issues in response to summary judgment was far from adequate. Also, Santa Fe must address the issue of whether the existence of express indemnity provisions between it and Robbins overrides any possible claim for implied indemnity. Cf. Richardson, 676 N.E.2d at 630. Presently, though, Robbins's motion for summary judgment on the cross claims will be denied.
IT IS THEREFORE ORDERED that Santa Fe's motion for partial summary judgment [56-1], Harborside's motion for summary judgment [59-1], and Robbins's motion for summary judgment as to cross claims [77-1] are denied. Robbins's motion for summary judgment [78-1] is granted. Count II of the First Amended Complaint is dismissed. The damages claim in Count III of the First Amended Complaint will be limited to $ 50.00 per shipment. In open court on December 30, 1997 at 9:15 a.m., the parties shall present an original and one copy of a topbound, final pretrial order in full compliance with Local Rule 5.00.
William T. Hart
UNITED STATES DISTRICT JUDGE
DATED: NOVEMBER 20, 1997