Commonwealth Edison Co. v. Hoge-Warren-Zimmerman Co.

• Decision Date: 24 January 1989
• Docket Number: HOGE-WARREN-ZIMMERMAN,No. 88-0157,88-0157
• Citation: 179 Ill.App.3d 120,534 N.E.2d 427,128 Ill.Dec. 245
• Parties: , 128 Ill.Dec. 245 COMMONWEALTH EDISON COMPANY, Plaintiff-Appellant, v.CO., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 427

534 N.E.2d 427

179 Ill.App.3d 120, 128 Ill.Dec. 245

COMMONWEALTH EDISON COMPANY, Plaintiff-Appellant, v. HOGE-WARREN-ZIMMERMAN CO., Defendant-Appellee.

No. 88-0157.

Appellate Court of Illinois First District, Second Division.

Jan. 24, 1989.

Bradley B. Falkof of Griffin & Fadden, Ltd., and Peter C. John of Phelan, Pope & John, Ltd., Chicago, for plaintiff-appellant.

Kiesler & Berman, Chicago (Robert L. Kiesler and Edward L. Cooper, of counsel), for defendant-appellee.

Presiding Justice EGAN delivered the opinion of the court:

This case involves one of the slowly dwindling but still lingering causes of action which arose before the passage of the Contribution Act (Ill.Rev.Stat.1979, ch. 70, par. 301 et seq. and Skinner v. Reed-Prentice Division Package Machinery Company (1977), 70 Ill.2d 1, 15 Ill.Dec. 829, 374 N.E.2d 437).

The plaintiff, Commonwealth Edison Co. (Edison), appeals from an order granting the motion of the defendant Hoge-Warren-Zimmerman Co. (HWZ), to dismiss the plaintiff's complaint for implied indemnity. HWZ cross-appeals from the trial court's rejection of other arguments advanced by HWZ to support its motion to dismiss. For the sake of clarity and brevity, therefore, we will treat the cross-appeal as an argument that the trial court could have dismissed the first amended complaint on grounds other than the one upon which the court relied; and, as the appellee, the defendant may properly argue those other grounds to support affirmance of the order. Bell v. Louisville & Nashville R.R. (1985), 106 Ill.2d 135, 88 Ill.Dec. 69, 478 N.E.2d 384.

On December 7, 1973, James McDaniel, an employee of Douglas Hoge, Alfred Warren and Richard Zimmermann, who were partners and owners of property located at 980 Carnegie Street, Rolling Meadows, Illinois, was sitting on an outside wall of an addition to the property and attempted to hand a 20-foot angle iron to a co-worker situated inside the building. McDaniel was electrocuted when the angle iron came into contact with a high power electric line owned by Edison.

The McDaniel estate filed a wrongful death action as well as other statutory claims against Edison, Hoge, Warren and Zimmerman individually and as owners of the property and Carp Construction Company, a contractor. The case went to trial on September 24, 1979. After the estate rested, Edison settled, paying $500,000 in exchange for a covenant not to sue or to continue suit. We have been informed that Hoge, Warren and Zimmerman also settled with the estate; and the case was dismissed with prejudice as to all defendants on October 3, 1979.

On January 3, 1980, Edison filed a three count complaint against HWZ. Count I was for implied indemnity, count II was for common law contribution and count III for statutory contribution. Counts II and III were dismissed; and their dismissal is not in issue here.

Then began a long series of motions by HWZ which involved four different judges. It first filed a motion to dismiss, claiming that the allegation of active negligence on the part of Edison in the wrongful death complaint precluded indemnification. Judge Paul Elward denied that motion on September 29, 1980. HWZ then sought a rehearing on its motion, arguing for the first time that the complaint failed to allege a pre-tort relationship between Edison and HWZ. That motion was denied by Judge Edward Berman on July 3, 1984. HWZ filed a notice of appeal and a petition for leave to appeal. The appellate court dismissed the appeal and denied the petition for leave. HWZ filed a petition for leave to appeal to the Illinois Supreme Court which was denied on April 2, 1985.

HWZ then filed a motion for summary judgment claiming that Edison could not establish a pre-tort relationship. Judge Thomas Hoffman denied that motion. The defendant then filed another motion to dismiss on March 4, 1986, alleging that Edison's implied indemnity action was insufficient, because it was based upon HWZ's violation of the Structural Work Act (Ill.Rev.Stat.1985, ch. 48, par. 60 et seq.), and that Edison did not qualify as a "protected person" under the law. Judge Hoffman also denied that motion. The defendant filed a second motion for summary judgment, again making the Structural Work Act argument. Judge Hoffman denied that motion, as well as HWZ's subsequent motion for rehearing. On October 20, 1987, the case was assigned to Judge Irving R. Norman to be set for trial.

HWZ filed another motion to dismiss before Judge Norman, again based on the argument that Edison failed to plead an adequate pre-tort relationship. Judge Norman indicated that he would allow the motion to dismiss on that ground but granted Edison leave to file an amended complaint. Edison filed an amended complaint, and HWZ responded by renewing its motion to dismiss. After a number of hearings, Judge Norman eventually granted HWZ's motion to dismiss on the ground that no adequate pre-tort relationship had been pleaded by Edison. He expressed disagreement with some of the other arguments advanced by HWZ in support of the motion, with the exception of the argument that Edison was guilty of active negligence as a matter of law. It was his belief that the underlying complaint alleged active negligence on the part of Edison. However, he hinged his decision on the holding that an adequate pre-tort relationship between the parties had not been pleaded.

The procedural history of this case tracks the changes in the law; and the record will reflect the understandable uncertainty those changes engendered in the minds of the trial judges. For example, the first judge who passed on the argument that a pre-tort relationship had not been pleaded apparently relied on certain appellate court opinions that one seeking implied indemnity need plead either a pre-tort relationship or a qualitative difference in the conduct of the parties. (E.g. Burgdorff v. International Business Machines (1975), 35 Ill.App.3d 192, 341 N.E.2d 122.) Those cases we now know are contrary to the expression of the supreme court which has held that both must be established. (Heinrich v. Peabody International Corp. (1984), 99 Ill.2d 344, 76 Ill.Dec. 800, 459 N.E.2d 935.) The second judge did not agree with the first judge but did not think he had the right to change the ruling. The last judge, Judge Norman, heard considerable argument and considered many cases. His remarks reflect a recognition that the requirement that one must plead and prove a pre-tort relationship has left the trial judges to a case-by-case resolution of the question. Our own reading of the cases leads to the conclusion that the existence of the relationship is a matter of law to be determined by the court.

The problem began with Muhlbauer v. Kruzel (1968), 39 Ill.2d 226, 234 N.E.2d 790, when the supreme court made it clear that "some relationship upon which a duty to indemnify may be predicated" must exist between the party seeking indemnification and the party from whom it is sought. (Muhlbauer, 39 Ill.2d at 231-32, 234 N.E.2d 790.) The argument has been advanced since Muhlbauer that the pre-tort relationship was restricted to lessor and lessee; employer and employee; owner and lessee and master and servant. (See Central Illinois Savings & Loan Assoc. v. Du Page County Bank (N.D.Ill.1986), 622 F.Supp. 1493.) But that argument has been rejected by the supreme court, implicitly at least, in Van Slambrouck v. Economy Bailer Co. (1985), 105 Ill.2d 462, 86 Ill.Dec. 488, 475 N.E.2d 867 and by the appellate court in Friedman, Alschuler and Sincere v. Arlington Structural Steel Co. (1985), 140 Ill.App.3d 556, 95 Ill.Dec. 87, 489 N.E.2d 308 and Illinois Central Gulf R.R. v. American President Lines, Inc. (1987), 161 Ill.App.3d 733, 113 Ill.Dec. 433, 515 N.E.2d 242.

But no case has defined the term "pre-tort relationship", as this court has previously noted. (Illinois Central Gulf R.R., 161 Ill.App.3d at 737-39, 113 Ill.Dec. 433, 515 N.E.2d 242.) Many have held that the required relationship was not established: Lohman v. Morris (1985), 146 Ill.App.3d 457, 100 Ill.Dec. 263, 497 N.E.2d 143 (Business invitee); Friedman, Alschuler and Sincere v. Arlington Structural Steel Co. (1986), 140 Ill.App.3d 556, 95 Ill.Dec. 87, 489 N.E.2d 308 (Architect and sub-contractor. Involvement in a common undertaking was not enough); Shaheed v. Chicago Transit Authority (1985), 137 Ill.App.3d 352, 92 Ill.Dec. 27, 484 N.E.2d 542 (General contractor and its sub-contractor); Devore v. Peoria Industrial Piping Co. (1985), 135 Ill.App.3d 966, 90 Ill.Dec. 674, 482 N.E.2d 653 (Employer and employee. Even though the relation of employer and employee existed, since the accident occurred after working hours, the required pre-tort relationship had not been established); and Van Slambrouck v. Economy Bailer Co. (1985), 105 Ill.2d 462, 86 Ill.Dec. 488, 475 N.E.2d 867, which underscores the problem. Four justices of the supreme court said that the relationship of manufacturer and purchaser was not sufficient; three justices said that it was.

Edison cites one case in support of its position, Illinois Central Gulf R.R. v. American President Lines, Inc. (1987), 161 Ill.App.3d 733, 113 Ill.Dec. 433, 515 N.E.2d 242. In that case American President Lines (APL) furnished General Motors (GM) with a container into which GM loaded certain tractor parts and forwarded it to APL's container yard in another state. The contract of carriage was represented by an intermodal bill of lading which referred to APL as the "ocean carrier" and GM as shipper and consignee of the goods. The first leg of the shipment was undertaken by an inland carrier, Conrail, which issued a waybill that identified APL as the shipper and consignee of the cargo. Conrail transported the container to Harvey, Illinois, where it was transferred to Illinois Central Gulf Railroad (ICG).

Somewhere in Illinois the cargo in the sealed container shifted, causing its doors to bulge. William Krakey, an...