Illinois Cent. Gulf R.R. v. American President Lines, Inc., s. 86-2964
| Decision Date | 22 September 1987 |
| Docket Number | Nos. 86-2964,86-2999,s. 86-2964 |
| Citation | 515 N.E.2d 242,161 Ill.App.3d 733 |
| Parties | , 113 Ill.Dec. 433 ILLINOIS CENTRAL GULF RAILROAD, Plaintiff-Separate-Appellant, v. AMERICAN PRESIDENT LINES, INC., Defendant-Counter-Plaintiff-Appellant (General Motors Corporation, Defendant-Counter-Defendant-Appellee). |
| Court | United States Appellate Court of Illinois |
Baker & McKenzie, Chicago (Francis D. Morrissey, J. Kent Mathewson, of counsel), for plaintiff-separate-appellant.
Ray, Robinson, Hanninen & Carle, Chicago (John P. Maniatis, Harold L. Witsaman, of cousel), for defendant-counter-plaintiff-appellant.
Lord, Bissell & Brook, Chicago (Hugh C. Griffin, William J. Brennan, of counsel), for defendant-counter-defendant-appellee.
William Kratky filed a claim against the Illinois Central Gulf Railroad Company (hereinafter "ICG") for personal injuries he sustained while in the course of his employment. After settling Kratky's claim with him, ICG commenced the instant action against American President Lines (hereinafter "APL") for implied indemnity. APL in turn sued General Motors Corporation (hereinafter "GM") for implied indemnity, which action the circuit court dismissed in an order made final and appealable, but from which APL took no appeal.
In ICG's second amended complaint, it added GM as a defendant, also predicated on the theory of implied indemnity. APL thereafter filed a cross-claim against GM, this time premised on the theory of express liability. On September 30, 1986, the circuit court dismissed both the ICG and the APL claims filed against GM, holding that ICG had not pleaded a sufficient pretort relationship with GM to state a cause of action for implied indemnity. The court also held that even if APL were found liable it would not be entitled to indemnity from GM. The action by ICG against APL remains pending in the circuit court. Both ICG and APL have appealed the circuit court's order, which contained the requisite Rule 304(a) finding. 87 Ill.2d R. 304(a).
On or before February 1, 1978, APL furnished GM with a container into which GM loaded certain tractor parts and forwarded it from its Hudson, Ohio facility to APL's Baltimore, Maryland, container yard. The contract of carriage was represented by an intermodal bill of lading issued by APL, specifying Baltimore, Maryland, as the port of loading; Oakland, California, as the seaport of exit; and Singapore as the port of discharge. The bill also 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 the ICG. Conrail is not a party to any of these actions.
Somewhere en route between Harvey, Illinois, and a side track in Munger, Illinois, 35 miles west of Chicago, the cargo in the sealed container shifted, causing its doors to bulge. This led to Kratky's inspection of the container on February 11, 1978, when the doors burst open, seriously injuring him. Kratky filed a claim against ICG under the Federal Employers' Liability Act (FELA), which was settled for $260,000. This action arises out of ICG's claim that it is entitled to indemnity for its payment to Kratky.
OPINIONThe parties agree that because Kratky's injury was sustained prior to March 1, 1978, neither the Illinois Contribution Among Joint Tortfeasors Act () nor the judicial adoption of contribution in Illinois (Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill.2d 1, 374 N.E.2d 437, cert. denied (1978), 436 U.S. 946, 98 S.Ct. 2849, 56 L.Ed.2d 787), is applicable. It should also be noted that since this cause comes before us on a judgment which was awarded on the pleadings pursuant to Ill.Rev.Stat.1987, ch. 110, par. 2-615, we must take as true all facts properly pleaded and all reasonable inferences which can be drawn therefrom, and unless it clearly appears that under no set of facts is a claimant entitled to recovery, a dismissal on the pleadings is error. Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill.2d 179, 187, 20 Ill.Dec. 581, 380 N.E.2d 790; Triangle Sign Co. v. Weber, Cohn, & Riley (1986), 149 Ill.App.3d 839, 103 Ill.Dec. 294, 501 N.E.2d 315.
In order to state a cause of action for implied indemnity, ICG "must allege: (1) a pretort relationship between the third-party plaintiff and the third-party defendant; and (2) a qualitative distinction between the conduct of the third-party plaintiff and the third-party defendant." (Van Slambrouck v. Economy Baler Co. (1985), 105 Ill.2d 462, 469, 86 Ill.Dec. 488, 475 N.E.2d 867.) The parties agree that ICG's complaint satisfies the second prong of the Van Slambrouck test. Accepting all well-pleaded facts as true, ICG did plead a cause of action according to which GM was more negligent than ICG. GM's active negligence in loading the cargo was qualitatively different from the passive negligence of ICG, and ICG might not have been negligent in any way.
The parties disagree, however, as to whether ICG has satisfied the first prong of the test set forth above. The supreme court in Van Slambrouck formulated the first prong of its test based on the rationale of its previous decision in Muhlbauer v. Kruzel (1968), 39 Ill.2d 226, 234 N.E.2d 790. In Muhlbauer, the court held that a store owner could not recover on a theory of implied indemnity from the alleged employer of a clown who, when performing on the sidewalk in front of the store, injured the plaintiff. The Muhlbauer court explained that there must be "some relationship upon which a duty to indemnify may be predicated" (39 Ill.2d 226, 231-32, 234 N.E.2d 790), but did not specify what the indicia of that relationship might be.
As a result, our courts developed two different interpretations of Muhlbauer. (See Bua, Third Party Practice in Illinois: Express and Implied Indemnity, 25 DePaul L.Rev. 287, 298-300 (1976); Kissel, Developments in Third Party Practice--Contribution and Indemnity, 71 Ill.B.J. 654, 684-85 (1983).) One line of cases, relying on the pre-Muhlbauer cases of Reynolds v. Illinois Bell Telephone Co. (1964), 51 Ill.App.2d 334, 201 N.E.2d 322, and Sargent v. Interstate Bakeries, Inc. (1967), 86 Ill.App.2d 187, 229 N.E.2d 769, held that a pretort relationship was unnecessary. (Ciosek v. Indiana Harbor Belt R.R. Co. (1979), 75 Ill.App.3d 410, 31 Ill.Dec. 388, 394 N.E.2d 590; Burgdorff v. International Business Machines (1975), 35 Ill.App.3d 192, 341 N.E.2d 122.) In other cases, however, the court held that a party was not entitled to indemnification unless there was a pretort relationship. Van Jacobs v. Parikh (1981), 97 Ill.App.3d 610, 52 Ill.Dec. 770, 422 N.E.2d 979; Young v. Gateway Transportation Co. (1975), 26 Ill.App.3d 864, 326 N.E.2d 222.
Our supreme court attempted to resolve this dispute in Van Slambrouck, in which it declared as follows:
(Van Slambrouck v. Economy Baler Co. (1985), 105 Ill.2d 462, 469, 86 Ill.Dec. 488, 475 N.E.2d 867.)
Although the Van Slambrouck court lists four "classic pretort relationships" (which actually seem to compress into two because of overlapping) as examples of the requirement, we are afforded no other guidance as to what elements constitute such a relationship nor as to what the test may be for deciding whether a relationship is sufficient to justify indemnity. Case law subsequent to Van Slambrouck also is devoid of any reference to the elements of a pretort relationship, although it does help to illuminate the issue.
In Friedman, Alschuler & Sincere v. Arlington Structural Steel Co. (1986), 140 Ill.App.3d 556, 557, 95 Ill.Dec. 87, 489 N.E.2d 308, a portion of the roof of a building collapsed as a result of poor workmanship and the use of faulty materials. The owner of the building brought a claim against the architect and the general contractor for the costs of repairing the project, but not against the subcontractors. The claim was compromised and the architect had to pay 25% of the costs. (140 Ill.App.3d 556, 557, 95 Ill.Dec. 87, 489 N.E.2d 308.) When the architect sued the subcontractors for implied indemnity, the court held that the architect was not entitled to such indemnification because the parties did not have a sufficient pretort relationship. After enumerating the four classic pretort relationships listed in Van Slambrouck, and after noting that the architect (FAS) had no contractual relationship with either subcontractor, the court in Friedman concluded with the following: 140 Ill.App.3d 556, 560, 95 Ill.Dec. 87, 489 N.E.2d 308. In the case at bar, the parties obviously had a more substantial relationship than mere involvement in a common undertaking, and for that reason our case can be easily distinguished...
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