Frazer v. A.F. Munsterman, Inc., No. 64031

CourtSupreme Court of Illinois
Writing for the CourtWARD
Citation123 Ill.Dec. 473,123 Ill.2d 245,527 N.E.2d 1248
Decision Date20 July 1988
Docket NumberNo. 64031
Parties, 123 Ill.Dec. 473, 7 UCC Rep.Serv.2d 121, Prod.Liab.Rep. (CCH) P 11,865 Doris FRAZER et al., Appellees, v. A.F. MUNSTERMAN, INC., Appellant.

Page 1248

527 N.E.2d 1248
123 Ill.2d 245, 123 Ill.Dec. 473, 7
UCC Rep.Serv.2d 121,
Prod.Liab.Rep. (CCH) P 11,865
Doris FRAZER et al., Appellees,
v.
A.F. MUNSTERMAN, INC., Appellant.
No. 64031.
Supreme Court of Illinois.
July 20, 1988.

[123 Ill.2d 249] Wayne B. Giampietro, Gregory N. Freerksen, Chicago, for appellant; Poltrock & Giampietro, of counsel.

Page 1249

[123 Ill.Dec. 474] Sweeney and Riman, Ltd., Chicago, for third-party defendant-appellee, Beck Corp.; John S. Huntley, Gary L. Fogle, of counsel.

Lord, Bissell & Brook, Chicago, for third-party defendant-appellee Iris G. Dougherty and George Croft Trust, d/b/a Croft Trailer and Hitch Co.; Richard F. Johnson, Hugh C. Griffin, Diane I. Jennings, of counsel.

Kralovec, Marquard, Doyle & Gibbons, Chartered, Chicago, for appellee Ring Brothers, Inc.; Nancy Jo Arnold, of counsel.

Griffin & Fadden, Ltd., Phelan, Pope & John, Ltd., Chicago, for third-party defendant-appellee Dico, Inc.; Bradley B. Falkof, Peter C. John, of counsel.

Justice WARD delivered the opinion of the court:

The question presented on this appeal is whether the distributor of a product found guilty of negligence in a personal injury action can maintain a third-party action for implied indemnity against the manufacturer and wholesaler of a product on the grounds of negligence, strict products liability or breach of an implied warranty of merchantability.

The plaintiff, Doris Frazer, brought an action in the circuit court of Du Page County for personal injuries sustained when a trailer, which was attached to the back of a pickup truck ahead of her, disengaged and collided with the car she was driving. The plaintiff sued Keith Allen, the operator of the pickup truck; A.F. Munsterman, Inc., d/b/a Wheaton Rental Center (Munsterman), the owner of the trailer and the trailer hitch; Robert Sosnowski, one of Munsterman's employees who allegedly [123 Ill.2d 250] helped Allen attach the trailer to his truck; the Beck Corporation (Beck), the manufacturer of the trailer; Iris Dougherty and the George Croft Trust, d/b/a Croft Trailer and Hitch Company (Croft), the seller to Munsterman of the trailer hitch; and Ring Brothers, Inc. (Ring Brothers), the company which sold the trailer hitch to Croft. Munsterman filed a third-party action against Allen, Croft, Ring Brothers, Beck, and Dico, Inc. (Dico), which manufactured the trailer's brake system, for contribution under "An Act in relation to contribution among joint tortfeasors" (Contribution Act) (Ill.Rev.Stat.1979, ch. 70, par. 302) and for indemnity predicated on the common law doctrine of implied indemnity. The third-party complaint asserted three grounds for recovery: negligence, strict products liability and breach of the implied warranty of merchantability under section 2-314 of the Uniform Commercial Code (Ill.Rev.Stat.1979, ch. 26, par. 2-314).

After the plaintiff had entered into a settlement with the defendants, Croft, Ring Brothers, Beck and Dico, the trial court dismissed the counts of Munsterman's complaint claiming contribution pursuant to sections 2(c) and (d) of the Contribution Act (Ill.Rev.Stat.1979, ch. 70, pars. 302(c), (d)), and severed Munsterman's third-party action from the primary action, that is, the plaintiff's personal injury suit. On the plaintiff's action against Allen, Sosnowski and Munsterman, the court directed a verdict against Munsterman on the strict products liability count of the complaint, and the jury found in favor of Allen and Sosnowski, and against Munsterman, on the negligence count. The court then dismissed Munsterman's third-party complaint, stating that actions for implied indemnity were abolished upon the adoption of contribution among joint tortfeasors. (See Ill.Rev.Stat.1979, ch. 70, par. 301 et seq.; Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill.2d [123 Ill.2d 251] 1, 15 Ill.Dec. 829, 374 N.E.2d 437.) Munsterman appealed the dismissal of its claims against Croft, Beck, Ring Brothers and Dico for indemnification, and the appellate court affirmed (145 Ill.App.3d 1092, 99 Ill.Dec. 734, 496 N.E.2d 309). We granted Munsterman's petition for leave to appeal under our Rule 315 (107 Ill.2d R. 315).

On April 15, 1980, the defendant, Keith Allen, was given the use of a trailer by the Wheaton Rental Center, which is owned and operated by the defendant, A.F. Munsterman, Inc. (The terms of the use are not clear from the record.) Allen attached the trailer to the back of his pickup truck with a "pintle hook/trailer hitch" and two "safety

Page 1250

[123 Ill.Dec. 475] chains," both of which he obtained from Munsterman. Allen also attached a third chain between the truck and the trailer which was designed to activate the brakes on the trailer in the event that it became detached from the towing vehicle. Shortly after leaving Munsterman's premises, the trailer broke free from Allen's pickup truck as a result of the trailer hitch and safety chains' disengaging from the truck as it was being pulled along the highway. The detached trailer veered into oncoming traffic, colliding with the plaintiff's auto and causing her injuries.

The plaintiff originally had filed an action in the circuit court of Du Page County against only Munsterman, Sosnowski and Allen, charging each with separate acts of negligence. Frazer alleged, inter alia, that Munsterman was negligent in providing Allen with a pintle hook/trailer hitch which it knew, or should have known, was in an unreasonably dangerous condition, and in providing Allen with a trailer with attached safety chains and "S" hooks which it knew, or should have known, were inadequate to secure the trailer to the rear of Allen's truck. The complaint also set out a strict products liability claim against Munsterman alleging that defects in both the trailer and trailer hitch, existing at the time they left [123 Ill.2d 252] Munsterman's control, rendered them unreasonably dangerous.

Munsterman brought a third-party action against Allen; the manufacturer of the trailer, Beck; the manufacturer of the trailer's brake system, Dico; the seller to Munsterman of the trailer hitch, Croft; and the seller of the trailer hitch to Croft, Ring Brothers. The complaint sought both contribution under the Contribution Act (Ill.Rev.Stat.1979, ch. 70, par. 301 et seq.), and indemnity predicated on a common law theory of implied indemnity. Against Allen, Munsterman sought recovery under negligence principles and asserted three grounds for recovery against the other third-party defendants: negligence, strict products liability, and breach of an implied warranty of merchantability under section 2-314 of the Uniform Commercial Code (Ill.Rev.Stat.1979, ch. 26, par. 2-314). The plaintiff subsequently amended her complaint to make all of the third-party defendants, except Dico, direct defendants. She asserted negligence and strict products liability as grounds for recovery.

When defendants Croft, Beck, Ring Brothers, and Dico entered into a settlement agreement with the plaintiff, under which she was paid $60,000 in return for a release of all claims against them arising out of the April 15 occurrence, they moved to dismiss Munsterman's third-party action. They asserted that Munsterman's claims for contribution should be dismissed pursuant to sections 2(c) and (d) of the Contribution Act (Ill.Rev.Stat.1979, ch. 70, pars. 302(c), (d)). Section 2(c) of the Act provides:

"When a release or covenant not to sue or not to enforce judgment is given in good faith to one or more persons liable in tort arising out of the same injury or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide but it reduces the recovery [123 Ill.2d 253] on any claim against the others to the extent of any amount stated in the release or the covenant, or in the amount of the consideration actually paid for it, whichever is greater." (Ill.Rev.Stat.1979, ch. 70, par. 302(c).)

Under section 2(d) of the Act, a tortfeasor who settles with the plaintiff in "good faith" pursuant to section 2(c) of the Act is discharged from all liability for contribution to other tortfeasors. Ill.Rev.Stat.1979, ch. 70, par. 302(d).

The third-party defendants also argued that Munsterman's complaint failed to state a cause of action for indemnity. They argued that after the adoption of contribution among tortfeasors in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill.2d 1, 15 Ill.Dec. 829, 374 N.E.2d 437, and the subsequent enactment of the Contribution Act, actions for implied indemnity are no longer recognized.

The trial court held that the settlement was in "good faith" and granted in part the

Page 1251

[123 Ill.Dec. 476] third-party defendants' motions, striking the contribution counts of Munsterman's complaint. The court, however, reserved ruling on the motions to dismiss the indemnity counts and severed Munsterman's third-party action from the underlying action brought by Frazer.

In the plaintiff's action against Munsterman, Sosnowski and Allen, the trial court directed a verdict against Munsterman on the strict liability count of the complaint. The court found that the trailer hitch Munsterman provided Allen was in an unreasonably dangerous condition at the time it left Munsterman's control, and that the defect was a proximate cause of the plaintiff's injuries. The jury found in favor of Allen and against Munsterman on the negligence counts of the plaintiff's complaint, and awarded the plaintiff $365,338.03 in damages. Sosnowski was dismissed after he testified that he had nothing to do with the attaching [123 Ill.2d 254] of the trailer to Allen's truck. The trial court reduced the plaintiff's award to $305,338.03 pursuant to section 2(c) of the Contribution Act (Ill.Rev.Stat.1979, ch. 70, par. 302(c)), which, as shown above, provides that any judgment paid by nonsettling defendants to the...

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  • American Environmental, Inc. v. 3-J Co., No. 2-90-1334
    • United States
    • United States Appellate Court of Illinois
    • 11 Diciembre 1991
    ...§ 428 (1958).) 3-J argues that (implied) indemnity of IBS as a subagent would be consistent with Frazer v. A.F. Munsterman, Inc. (1988), 123 Ill.2d 245, 123 Ill.Dec. 473, 527 N.E.2d 1248, because respondeat superior is applicable. It refers to the fact that Frazer expressed no opinion of th......
  • People ex rel. Hartigan v. Community Hosp. of Evanston, No. 1-87-3143
    • United States
    • United States Appellate Court of Illinois
    • 21 Septiembre 1989
    ...each to pay a proportionate share based on the relative fault of the parties. [Citation.]" Frazer v. A.F. Munsterman, Inc. (1988), 123 Ill.2d 245, 256, 123 Ill.Dec. 473, 527 N.E.2d 1248; see also, e.g., Gerill Corp. v. J.L. Hargrove Builders (1989), Page 230 [136 Ill.Dec. 706] 128 Ill.2d 17......
  • Mikolajczyk v. Ford Motor Co., No. 104983.
    • United States
    • Supreme Court of Illinois
    • 17 Octubre 2008
    ...or decision of this case. --------------- Notes: 1. Suvada was impliedly overruled on other grounds in Frazer v. A.F. Munsterman, Inc., 123 Ill.2d 245, 123 Ill.Dec. 473, 527 N.E.2d 1248 (1988). The implied overruling of Suvada was recognized by this court in Dixon v. Chicago & North Western......
  • Baley v. Fed. Signal Corp., Docket Nos. 1–09–3312
    • United States
    • United States Appellate Court of Illinois
    • 7 Febrero 2013
    ...Suvada v. White Motor Co., 32 Ill.2d 612, 621, 210 N.E.2d 182 (1965), overruled on other grounds by Frazer v. A.F. Munsterman, Inc., 123 Ill.2d 245, 123 Ill.Dec. 473, 527 N.E.2d 1248 (1988). Since that time, our supreme court has determined that a product may be unreasonably dangerous if th......
  • Request a trial to view additional results
62 cases
  • American Environmental, Inc. v. 3-J Co., No. 2-90-1334
    • United States
    • United States Appellate Court of Illinois
    • 11 Diciembre 1991
    ...§ 428 (1958).) 3-J argues that (implied) indemnity of IBS as a subagent would be consistent with Frazer v. A.F. Munsterman, Inc. (1988), 123 Ill.2d 245, 123 Ill.Dec. 473, 527 N.E.2d 1248, because respondeat superior is applicable. It refers to the fact that Frazer expressed no opinion of th......
  • People ex rel. Hartigan v. Community Hosp. of Evanston, No. 1-87-3143
    • United States
    • United States Appellate Court of Illinois
    • 21 Septiembre 1989
    ...each to pay a proportionate share based on the relative fault of the parties. [Citation.]" Frazer v. A.F. Munsterman, Inc. (1988), 123 Ill.2d 245, 256, 123 Ill.Dec. 473, 527 N.E.2d 1248; see also, e.g., Gerill Corp. v. J.L. Hargrove Builders (1989), Page 230 [136 Ill.Dec. 706] 128 Ill.2d 17......
  • Mikolajczyk v. Ford Motor Co., No. 104983.
    • United States
    • Supreme Court of Illinois
    • 17 Octubre 2008
    ...or decision of this case. --------------- Notes: 1. Suvada was impliedly overruled on other grounds in Frazer v. A.F. Munsterman, Inc., 123 Ill.2d 245, 123 Ill.Dec. 473, 527 N.E.2d 1248 (1988). The implied overruling of Suvada was recognized by this court in Dixon v. Chicago & North Western......
  • Baley v. Fed. Signal Corp., Docket Nos. 1–09–3312
    • United States
    • United States Appellate Court of Illinois
    • 7 Febrero 2013
    ...Suvada v. White Motor Co., 32 Ill.2d 612, 621, 210 N.E.2d 182 (1965), overruled on other grounds by Frazer v. A.F. Munsterman, Inc., 123 Ill.2d 245, 123 Ill.Dec. 473, 527 N.E.2d 1248 (1988). Since that time, our supreme court has determined that a product may be unreasonably dangerous if th......
  • Request a trial to view additional results

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