Allison v. Shell Oil Co.

• Decision Date: 01 April 1985
• Docket Number: No. 5-83-0521,5-83-0521
• Citation: 479 N.E.2d 333,133 Ill.App.3d 607,88 Ill.Dec. 720
• Court: United States Appellate Court of Illinois
• 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.

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.

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 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 & 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).

In Morizzo v. Laverdure (1st Dist.1984), 127 Ill.App.3d 767, 772-73, 83 Ill.Dec. 46, 50-51, 469 N.E.2d 653, 657-58, the court observed that the Illinois Contribution Among Joint Tortfeasors Act is based upon a New York statute but does not include a provision preserving the right of indemnity, as does the New York statute. The court reasoned that the failure of the Illinois Legislature to preserve the right of indemnity might suggest an intent to entirely eliminate the judicially created right to indemnity; however, although the Contribution Act did, in fact, extinguish a cause of action for active-passive negligence, implied indemnity was not extinguished by the passage of the Act in cases involving some pre-tort relationship between the parties which gives rise to "a duty to indemnify, e.g., in cases involving vicarious liability (lessor-lessee; employer-employee; owner and lessee; master and servant)" and " 'upstream' claims in a strict liability action" as stated in Lowe v. Norfolk and Western Ry. Co. (5th Dist.1984), 124 Ill.App.3d 80, 97, 79 Ill.Dec. 238, 251, 463 N.E.2d 792, 805. (Morizzo v. Laverdure (1st Dist.1984), 127 Ill.App.3d 767, 772-73, 83 Ill.Dec. 46, 50-51, 469 N.E.2d 653, 657-58.) We find this logic compelling and similarly conclude that the right to indemnity has been altered by the enactment of the Contribution Among Joint Tortfeasors Act only to the extent that it involves causes of action for implied indemnity based upon the theory of active-passive negligence.

In so finding, we note that there is contrary authority which suggests that the Contribution Among Joint Tortfeasors Act does not alter the right to indemnity in Illinois in any respect. See Van Jacobs v. Parikh (1st Dist.1981), 97 Ill.App.3d 610, 613, 52 Ill.Dec. 770, 772, 422 N.E.2d 979, 981.

We would further note that the cases of LeMaster v. Amsted Industries, Inc. (5th Dist.1982), 110 Ill.App.3d 729, 66 Ill.Dec. 454, 442 N.E.2d 1367, and Bednar v. Venture Store, Inc. (1st Dist.1982), 106 Ill.App.3d 454, 62 Ill.Dec. 464, 436 N.E.2d 46, which the parties have relied upon, do not specifically consider the issue of the effect of the Contribution Among Joint Tortfeasors Act on indemnity. In LeMaster this court held that an otherwise valid complaint for indemnity should not be dismissed merely because the third party defendant settles with the original plaintiff. In Bednar the court noted that since the cause of action in that case arose prior to March 1, 1978, the Contribution Among Joint Tortfeasors Act did not apply. (Ill.Rev.Stat.1981, ch. 70, par. 301.) These cases offer mere dicta on the question of the effect of the Contribution Among Joint Tortfeasors Act on indemnity.

It is significant to note that it has long been recognized that implied indemnity in tort based on the theory of active-passive negligence was judicially created to avoid the harsh consequences of the common law rule barring contribution among tortfeasors. However, the decision of the supreme court in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill.2d 1, 15 Ill.Dec. 829, 374 N.E.2d 437, cert. denied sub nom. Hinckley Plastic, Inc. v. Reed-Prentice Division Package Machinery Co. (1978), 436 U.S. 946, 98 S.Ct. 2849, 56 L.Ed.2d 787, repudiated the common law prohibition against contribution among tortfeasors. Skinner was...