Herington v. J.S. Alberici Const. Co., Inc.
| Decision Date | 18 August 1994 |
| Docket Number | No. 5-93-0284,5-93-0284 |
| Citation | 203 Ill.Dec. 348,639 N.E.2d 907,266 Ill.App.3d 489 |
| Parties | , 203 Ill.Dec. 348 Carl HERINGTON and Robert Cowder, Plaintiffs, v. J.S. ALBERICI CONSTRUCTION COMPANY, INC., Defendant and Third-Party Plaintiff-Appellant (Shield Painting Company, Third-Party Defendant-Appellee). |
| Court | United States Appellate Court of Illinois |
Stephen J. Maassen, Hoagland, Fitzgerald, Smith & Pranaitis, Alton, for appellant.
Burroughs, Hepler, Broom, MacDonald & Hebrank by J. Todd Hayes, Edwardsville, for appellee.
Carl Herington and Robert Cowder filed suit against J.S. Alberici Construction Co., Inc. (Alberici), for injuries sustained on November 27, 1989. Herington and Cowder were employed by Shield Painting Co. (Shield) at the time of their injury. The plaintiffs were engaged in work taking place on Lock and Dam 22, which spans the Mississippi River from Missouri to Illinois. Each plaintiff sought damages due to alleged violations of the Illinois Structural Work Act (740 ILCS 150/0.01 et seq. (West 1992)) and common law negligence. It is undisputed that the injuries occurred in Illinois.
Alberici initially filed several procedural motions which are unrelated to this appeal, and then on January 4, 1991, it filed its answer to plaintiffs' complaint, along with a four-count third-party complaint seeking contribution from Shield under the Joint Tortfeasor Contribution Act (Contribution Act) (740 ILCS 100/0.01 et seq. (West 1992)).
The third-party complaint was amended twice. In the second amended third-party complaint, Alberici requested in separate counts both contribution under the Contribution Act and "indemnification" from Shield "in such an amount as is attributable to Shield's share of the liability". The "indemnity" claim was based on paragraph 8(c) of the general conditions of the written subcontract between Alberici and Shield. Paragraph 8(c) states:
Shield moved to dismiss the complaint. Three arguments were advanced below and in this court in support of the motion: (1) The indemnification agreement contravenes public policy as set forth in the Construction Contract Indemnification for Negligence Act (the Anti-Indemnity Statute) (740 ILCS 35/1 (West 1992)); (2) The indemnification agreement contravenes public policy because it attempts to convert an indemnity action into an agreement for contribution without the good faith settlement provisions and dismissal which flow from a settlement under the Contribution Act; and (3) The prayer for indemnification seeks to circumvent the decision in Kotecki v. Cyclops Welding Corp. (1991), 146 Ill.2d 155, 166 Ill.Dec. 1, 585 N.E.2d 1023, which limits an employer's contribution liability to the amount of the worker's compensation liability.
The circuit court granted the motion to dismiss the indemnity counts. The dismissal order was certified pursuant to Supreme Court Rule 304(a) ( 134 Ill.2d R. 304(a)), and Alberici appealed. The plaintiffs have settled their claims and are not parties to this appeal.
Alberici advances several arguments in support of its appeal of the dismissal order. These will be addressed seriatim.
Alberici first claims that Missouri law should be applied to this case. The following facts are cited by Alberici: (1) The subcontract contains a choice-of-law provision which specifies Missouri law as applicable to the subcontract; (2) Shield and Alberici are both Missouri Corporations; (3) The contract was entered into in Missouri; (4) The work was to be performed in both Missouri and Illinois; and (5) Both plaintiffs are domiciled in Missouri.
According to Alberici, these Missouri contacts, along with the choice-of-law provision in the contract, require the application of Missouri law. Alberici claims that the indemnification requested is permissible under Missouri law. No authority is cited in support of the claim that Missouri law would allow the indemnification request. Rather, Alberici focuses exclusively on a choice-of-law argument.
The primary authority that Alberici relies upon to support its position is Jarvis v. Ashland Oil, Inc. (1985), 17 Ohio St.3d 189, 17 OBR 427, 478 N.E.2d 786. Jarvis is similar to the case at bar, but it is also factually distinct. Jarvis concluded that under the facts of that case and the principles set forth in Restatement (Second) of Conflicts section 187 (1969), a similar choice-of-law provision should be applied.
In response, Shield argues that under choice-of-law rules applied in Illinois (See Cook v. General Electric Co. (1992), 146 Ill.2d 548, 167 Ill.Dec. 957, 588 N.E.2d 1087), Illinois law must be applied. Shield bases this argument on the fact that plaintiffs were working in Illinois at the time of injury. Shield does not dispute that Missouri would allow indemnity, but like Alberici Shield cites no authority in support of this proposition.
We decline the invitation to enter this debate. The contract itself resolves the dispute. Therefore, common law choice-of-law principles need not be applied, and we need not analyze the authorities and arguments advanced regarding the common law choice-of-law debate.
It is true that one portion of the subcontract (paragraph 31) specifies that Missouri law shall "govern and be applied" to the subcontract. But the very provision of the contract pleaded in Alberici's third-party complaint as the basis for the indemnity claim (paragraph 8(c)) is a specific provision applicable to work performed in Illinois. This Illinois-specific provision contemplates the application of Illinois law to "all Subcontract work performed in Illinois." As stated earlier, the work performed under the subcontract was performed in both Missouri and Illinois. But the work taking place at the time of plaintiffs' injuries was being performed in Illinois, and the plaintiffs were injured in Illinois.
"Where one intention is expressed in one clause of an instrument and a different, conflicting intention appears in another clause of the same instrument, full effect should be given to the clause which is the more principal and specific, and the general clause should be subjected to such modification or qualification as the specific clause makes necessary." McDonalds Corp. v. Butler Co. (1987), 158 Ill.App.3d 902, 909, 110 Ill.Dec. 735, 740, 511 N.E.2d 912, 917.
We conclude that the specific provision must control over the general one. Illinois law applies.
Alberici next argues that if Illinois law applies, the agreement does not contravene the Anti-Indemnity Statute. The Anti-Indemnity Statute states:
"With respect to contracts or agreements, either public or private, for the construction, alteration, repair or maintenance of a building, structure, highway bridge, viaducts or other work dealing with construction, or for any moving, demolition or excavation connected therewith, every covenant, promise or agreement to indemnify or hold harmless another person from that person's own negligence is void as against public policy and wholly unenforceable." 740 ILCS 35/1 (West 1992).
Alberici contends that no indemnity is being sought by it for liability arising from its own negligence. Rather, indemnity is sought only for that portion of the liability attributable to Shield's own negligence or violation of the Structural Work Act. Thus, it is claimed that paragraph 8(c) of the subcontract does not violate the statute. Relying upon Dixon v. Northwestern Publishing Co. (1988), 166 Ill.App.3d 745, 117 Ill.Dec. 581, 520 N.E.2d 932, Alberici argues that contractual indemnity provisions of the type contained in the Alberici/Shield subcontract are outside the scope of the statute because indemnity is being sought from Shield only for liability that attaches to Alberici by virtue of Shield's own fault.
Alberici's argument is tantalizing--but wrong; its conclusion is correct. We agree that the Anti-Indemnity statute is inapplicable. We disagree as to the reason.
We disagree because Alberici's argument and the Dixon decision proceed from a false premise. There is a difference between paying for a piece of apple pie and paying for the entire pie.
"There is an important distinction between contribution, which distributes the loss among the tortfeasors...
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