Allison v. Shell Oil Co., s. 61799

• Court: Supreme Court of Illinois
• Writing for the Court: SIMON
• Citation: 99 Ill.Dec. 115,113 Ill.2d 26,495 N.E.2d 496
• Parties: , 99 Ill.Dec. 115 Kenneth David ALLISON et al. v. SHELL OIL COMPANY et al., Appellants (Strange & Coleman, Inc., Appellee).
• Docket Number: Nos. 61799,61834,s. 61799
• Decision Date: 20 June 1986

Page 496

495 N.E.2d 496 113 Ill.2d 26, 99 Ill.Dec. 115 Kenneth David ALLISON et al.
v.
SHELL OIL COMPANY et al., Appellants
(Strange & Coleman, Inc., Appellee). Nos. 61799, 61834. Supreme Court of Illinois. June 20, 1986.

Page 497

[99 Ill.Dec. 116] Evans & Dixon, Robert W. Wilson, Laura B. Allen, St. Louis, Mo., for third-party defendant/appellee Strange & Coleman, Inc.

Thompson & Mitchell, Allen D. Allred, Nicholas H. Ores, Belleville, for defendant-appellant Shell Oil Co.

Dunham, Boman & Leskera, Robert D. Francis, Frederick P. Johnston, Jr., East St. Louis, for defendant-appellant J.J. Wuellner & Sons, Inc.

Justice SIMON delivered the opinion of the court:

This case presents for decision a question previously [113 Ill.2d 27] left unanswered by this court in Simmons v. Union Electric Co. (1984), 104 Ill.2d 444, 454, 85 Ill.Dec. 347, 473 N.E.2d 946, and Heinrich v. Peabody International Corp. (1984), 99 Ill.2d 344, 76 Ill.Dec. 800, 459 N.E.2d 935: whether implied indemnity remains a viable theory for shifting the costs of tortious conduct among jointly liable tortfeasors following adoption of "An Act in relation to contribution among joint tortfeasors" (the Act) (Ill.Rev.Stat.1985, ch. 70, par. 301 et seq.). We note at the outset, however, that the claims for indemnification in this case are not premised upon an underlying action regarding a defective product or the would-be indemnitees' vicarious liability for the conduct of their indemnitor (see Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill.App.3d 80, 97, 79 Ill.Dec. 238, 463 N.E.2d 792), and we express no opinion on the continued vitality of implied indemnity in those cases. Neither does our opinion in this case affect the validity of explicit undertakings among two or more parties to shift from one party to another the ultimate cost of liability which may arise in favor of a third party.

In August 1979, defendant and third-party plaintiff Shell Oil Company (Shell) contracted with third-party defendant Strange & Coleman, Inc. (Strange & Coleman), for the latter to rebuild a "catcracker" unit at Shell's Wood River refinery. Pursuant to the terms of their agreement, Strange & Coleman agreed to "furnish all labor, supervision, machinery, equipment, materials and supplies necessary" to rebuild the catcracker while taking responsibility "for all acts and omissions of its subcontractors."

One such subcontractor, defendant and third-party plaintiff J.J. Wuellner, Inc. (Wuellner), was engaged by Strange & Coleman to provide scaffolding from which Strange & Coleman employees could hot-weld the multistory-tall "cyclone" portion of the catcracker. However, the scaffolding erected by Wuellner left an area of the cyclone inaccessible to Strange & Coleman's boilermakers[113 Ill.2d 28] who were performing the welding. Strange & Coleman's employees therefore ran a 2-foot by 12-foot board from the dust collector at the top of the cyclone to Wuellner's scaffold, from which board the employees could reach the cyclone. Evidence admitted at trial showed the board was not secured to either the cyclone or the scaffold, although there was wire available with which to make it fast.

Kenneth Allison, the plaintiff and a boilermaker for Strange & Coleman, was injured while working atop the board; the board slipped, and both the board and Allison fell. Allison brought suit against Shell and Wuellner, asserting negligence and liability

Page 498

[99 Ill.Dec. 117] under the Structural Work Act (Ill.Rev.Stat.1985, ch. 48, par. 60 et seq.). Defendants impleaded Strange & Coleman as a third-party defendant, seeking complete indemnification or, in the alternative, contribution. Prior to trial, Shell, Strange & Coleman and Wuellner entered into a settlement with Allison, and the third-party claims proceeded to trial in the circuit court of Madison County to determine what liability each defendant had for the settlement amount. The jury was instructed on both implied indemnity and contribution, and judgment was entered on the jury's finding that Shell and Wuellner were entitled to indemnification from Strange & Coleman. On Strange & Coleman's appeal, the appellate court reversed that judgment, reasoning that contribution had replaced "active-passive" indemnity in this State, and remanded the proceeding for a new trial (133 Ill.App.3d 607, 88 Ill.Dec. 720, 479 N.E.2d 333). We allowed the third-party plaintiffs leave to appeal (94 Ill.2d R. 315).

Implied indemnity has undergone a gradual metamorphosis. At common law, the doctrine evolved as a restitutionary device, a contract implied in law arising from the legal obligation of an indemnitee to satisfy liability caused by actions of his indemnitor. (F. Woodward, Quasi [113 Ill.2d 29] Contracts sec. 259 (1913); cf. 2 W. Blackstone * 443 (if one party undertakes to perform business for another party and fails to, by a contract implied in law the one party "shall pay the other party such damages as he has sustained by such * * * neglect").) If, for example, an injured party could hold an employer or property owner vicariously liable for the negligence of an employee or other person, a right of indemnity would be implied in favor of the party liable in law who had not contributed to the injury. (Pfau v. Williamson (1872), 63 Ill. 16; Scott v. Curtis (1909), 195 N.Y. 424, 88 N.E. 794; see Van Slambrouck v. Economy Baler Co. (1985), 105 Ill.2d 462, 469-70, 86 Ill.Dec. 488, 475 N.E.2d 867.) Thus, in order to establish a quasi-contractual right of indemnification, the supposed indemnitee would have to show that his liability was merely technical--that he had not acted wrongfully in any degree--and that it arose solely from a pretort relationship by which the supposed indemnitor impliedly promised to indemnify. See Nelson v. Cook (1856), 17 Ill. 443.

With the growth of tort liability for negligent acts, the doctrine of implied indemnity was extended in response to the rule in Merryweather v. Nixan (K.B.1799), 101 Eng.Rep. 1337, 8 Term R. 186, which prohibited contribution among jointly negligent tortfeasors (e.g., Consolidated Ice Machine Co. v. Keifer (1890), 134 Ill. 481, 25 N.E. 799). The rule against contribution, harsh enough in cases where both tortfeasors were in pari delicto, was even harsher where the difference in relative degrees of fault was so great that the negligence of one tortfeasor could be labeled "primary" in relation to the "secondary" negligence of the other. (See generally Heinrich v. Peabody International Corp. (1985), 139 Ill.App.3d 289, 291-92, 93 Ill.Dec. 544, 486 N.E.2d 1379.) This court first indicated the possibility of relief for the less negligent party in John Griffiths & Son Co. v. National Fireproofing Co. (1923), ...