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AT&T v. Lyons & Pinner Elec. Co., Inc.

Court of Appeals of Illinois, Second District

March 24, 2014

AT& T, Plaintiff,
v.
LYONS AND PINNER ELECTRIC COMPANY, INC., Defendant (Lyons Electric Company, Inc., and Pinner Electric Inc., Defendants and Third-Party Plaintiffs-Appellants; USIC Locating Services, Inc., Third-Party Defendant-Appellee.)

Page 463

Appeal from the Circuit Court of Du Page County. No. 11-L-526. Honorable Patrick J. Leston, Judge, Presiding.

Appeal dismissed.

SYLLABUS

In an action for the damage done to plaintiff's underground telephone utility facilities during an excavation project, the appeal from the dismissal of defendant excavation company's third-party complaint seeking contribution from the locating service based on a contract claim was dismissed, since the trial court abused its discretion in finding that the dismissal of the excavator's contribution claim was final and appealable under Supreme Court Rule 304(a), especially when the trial court judge's comments showed that he improperly entered the Rule 304(a) finding in order to circumvent the procedure for certifying questions for interlocutory review under Rule 308 and to advance the substantive issues as to the applicability of the Moorman doctrine to the excavator's counterclaim to the appellate court without considering the Geier factors.

Joseph P. Buell and H. Elisabeth Huber, both of Law Office of Joseph P. Buell, of Chicago, for appellants.

Carly A. Brandenburg,Megan C. Brennan, and Kirk D. Bagrowski, all of Eichhorn & Eichhorn, LLP, of Hammond, Indiana, for appellee.

PRESIDING JUSTICE BURKE delivered the judgment of the court, with opinion. Justices Schostok and Spence concurred in the judgment and opinion.

OPINION

BURKE, PRESIDING JUSTICE.

Page 464

[¶1] Defendants and third-party plaintiffs, Lyons Electric Company, Inc., and Pinner Electric Inc. (collectively, Lyons), were performing excavation work when they struck and damaged underground telephone utility facilities owned and operated by plaintiff, AT& T. AT& T filed a second amended complaint, which now consists of a single pending claim, that Lyons was negligent in performing its work.

[¶2] Lyons filed an amended third-party complaint against third-party defendant, USIC Locating Services, Inc., which AT& T had hired to locate and mark the underground facilities before the excavation work began. Lyons alleged that USIC was negligent in performing its locating services for AT& T and that USIC proximately caused AT& T's property damage. In count I of the amended third-party complaint, Lyons sought contribution from USIC for the damages claimed by AT& T. In count II, Lyons sought damages for its own losses, including for downtime, resulting from USIC's alleged negligence.

[¶3] USIC moved to dismiss the third-party complaint under section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2012)). The trial court dismissed count I but not count II. On USIC's motion and over Lyons's objection, the court entered a written finding that the dismissal of count I was final and appealable under Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010). Lyons appealed to preserve the contribution claim.

[¶4] On appeal, Lyons argues that the trial court abused its discretion in finding the dismissal of the contribution claim final and appealable under Rule 304(a). Lyons alternatively argues that the court erred in dismissing the contribution claim, because (1) AT& T has a cause of action against USIC for negligent misrepresentation and therefore USIC is subject to tort liability under section 2 of the Joint Tortfeasor Contribution Act (Contribution Act) (740 ILCS 100/2 (West 2010)), (2) the economic loss doctrine ( Moorman Manufacturing Co. v. National Tank Co., 91 Ill.2d 69, 435 N.E.2d 443, 61 Ill.Dec. 746 (1982)), which prohibits recovery in tort for purely economic losses, does not bar contribution claims, and (3) even if Moorman ordinarily would bar a contribution claim, the information-provider exception allows the claim in this case.

[¶5] We dismiss the appeal for lack of jurisdiction because the trial court abused its discretion in finding the dismissal of Lyons's contribution claim final and appealable under Rule 304(a). The trial judge's comments reveal that he entered a written Rule 304(a) finding to advance the substantive issues to this court, effectively circumventing the procedure for certifying questions for interlocutory review under Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010).

[¶6] I. BACKGROUND

[¶7] On October 28, 2011, AT& T filed a two-count second amended complaint against Lyons to recover damages to its underground telephone utility facilities at or near ...


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