Allison v. Shell Oil Co., 5-83-0521

• Court: United States Appellate Court of Illinois
• Citation: 479 N.E.2d 333,133 Ill.App.3d 607,88 Ill.Dec. 720
• Decision Date: 01 April 1985
• Docket Number: No. 5-83-0521,5-83-0521
• Parties: , 88 Ill.Dec. 720 Kenneth David ALLISON and Ruth Allison, Plaintiffs, v. SHELL OIL COMPANY, a Corporation, and J.J. Wuellner & Sons, Inc., Defendants and Third Party Plaintiffs-Appellees, v. STRANGE & COLEMAN, INC., Third Party Defendant-Appellant.

Page 333

479 N.E.2d 333 133 Ill.App.3d 607, 88 Ill.Dec. 720 Kenneth David ALLISON and Ruth Allison, Plaintiffs,
v.
SHELL OIL COMPANY, a Corporation, and J.J. Wuellner & Sons,
Inc., Defendants and Third Party Plaintiffs-Appellees,
v.
STRANGE & COLEMAN, INC., Third Party Defendant-Appellant. No. 5-83-0521. Appellate Court of Illinois,
Fifth District. April 1, 1985.

Page 334

[88 Ill.Dec. 721] Lawrence O. Taliana, Edwardsville, for third party defendant-appellant.

Allen D. Allred, Thompson & Mitchell, East St. Louis, for Shell Oil Co.

Robert D. Francis, Dunham, Boman & Leskera, East St. Louis, for J.J. Wuellner & Sons, Inc.

[133 Ill.App.3d 608] KASSERMAN, Justice:

Third party defendant, Strange & Coleman, Inc. (Strange & Coleman), appeals from a judgment in favor of defendants and third party plaintiffs, Shell Oil Company (Shell Oil) and J.J. Wuellner & Sons, Inc. (Wuellner). On appeal, Strange & Coleman urge, inter alia, that: (1) the trial court erred in submitting indemnity theories to the jury; (2) Shell Oil was not entitled to indemnity from Strange & Coleman as a matter of law; (3) Strange & Coleman was entitled to indemnity from Wuellner as a matter of law; (4) Wuellner was not entitled to indemnity from Strange & Coleman as a matter of law; (5) the trial court erred in submitting indemnity and contribution theories to the jury simultaneously; and (6) the trial court erroneously admitted certain evidence. In its brief and argument on appeal, Strange & Coleman raises the issue of the viability of indemnity after the enactment of the Contribution Among Joint Tortfeasors Act. Ill.Rev.Stat.1981, ch. 70, par. 301 et seq.

The evidence adduced at trial indicates that on August 2, 1979, Shell Oil entered into a contract with Strange & Coleman under which Strange & Coleman was to rebuild a "catcracker unit" at Shell Oil's refinery located in Wood River, Illinois. Strange & Coleman, in turn, subcontracted with Wuellner, which agreed to provide scaffolding for the construction.

On October 20, 1979, plaintiff, Kenneth David Allison, who was employed by Strange & Coleman as a boilermaker, was injured during the construction project at Shell Oil's refinery. Plaintiff's injury occurred when he fell from a board which extended from the scaffolding which had been constructed at the site. Plaintiff filed suit under the Structural Work Act (Ill.

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[88 Ill.Dec. 722] Rev.Stat.1981, ch. 48, pars. 60-69) against Shell Oil and Wuellner. Shell Oil and Wuellner subsequently filed a third party action against Strange & Coleman.

The third party proceedings were submitted to a jury, which was instructed on both the theories of indemnity and contribution. Specifically, the jury was instructed to first consider the claims for indemnification made by Shell Oil, Wuellner, and Strange & Coleman. The jury was then instructed that if it found that two parties were entitled to indemnity, it should disregard an additional instruction it was given covering the theory of contribution. The jury was further instructed that with respect to parties found not to be entitled to indemnity, the theory of contribution must be considered.

The jury awarded Shell Oil and Wuellner complete indemnity from Strange & Coleman. All parties agreed to settle with plaintiff for $240,000; and this amount was paid to plaintiff by Strange & [133 Ill.App.3d 609] Coleman pursuant to the settlement agreement. Strange & Coleman brought this appeal contending, inter alia, that the circuit court of Madison County erred in submitting an indemnity theory to the jury.

The dispositive questions presented are whether the Illinois Contribution Among Joint Tortfeasors Act replaces implied indemnity and, if so, to what extent it does so. These are questions which our supreme court has recognized as existing but have yet to rule upon. (Van Slambrouck v. Economy Baler Co. (1985), 105 Ill.2d 462, 469, 86 Ill.Dec. 488, 491, 475 N.E.2d 867, 870; Simmons v. Union Electric Co. (1984), 104 Ill.2d 444, 453-54, 85 Ill.Dec. 347, 351-52, 473 N.E.2d 946, 950-51; Heinrich v. Peabody International Corp. (1984), 99 Ill.2d 344, 350-51, 76 Ill.Dec. 800, 803-04, 459 N.E.2d 935, 938-39.) Furthermore, an analysis of the relatively large number of law review articles which have considered these issues discloses no persuasive guide for their determination. See Anich, Implied Indemnity After Skinner and the Illinois Contribution Act: The Case for a Uniform Standard, 14 Loy.U.Chi.L.J. 531 (1983); Widland, Contribution: The End to Active-Passive Indemnity, 69 Ill.Bar.J. 78 (1980); Appel and Michael, Contribution Among Joint Tortfeasors in Illinois: An Opportunity for Legislative and Judicial Cooperation, 10 Loy.U.Chi.L.J. 169 (1979); Ferrini, The Evolution from Indemnity to Contribution--A Question of the Future, If Any, of Indemnity, 59 Chi.Bar Rec. 254 (1978).

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