Morizzo v. Laverdure

• Decision Date: 18 September 1984
• Docket Number: No. 83-1125,83-1125
• Citation: 83 Ill.Dec. 46,469 N.E.2d 653,127 Ill.App.3d 767
• Parties: , 83 Ill.Dec. 46 Anthony MORIZZO, Plaintiff-Appellee, v. Kay LAVERDURE, William Laverdure, Ronald Laverdure and Patricia Laverdure, "K" Koncrete Co., "K" Koncrete, Inc., an Illinois Corporation, Defendants- Appellees. "K" KONCRETE, INC., Ronald Laverdure and Patricia Laverdure, d/b/a "K" Koncrete Co., Third-party Plaintiffs-Appellees, v. BENA ASSOCIATES, INC., Third-party Defendant-Appellant, and Baranyk-Popwych, Ltd., Third-party Defendant.
• Court: United States Appellate Court of Illinois

Page 653

469 N.E.2d 653

127 Ill.App.3d 767, 83 Ill.Dec. 46

Anthony MORIZZO, Plaintiff-Appellee, v. Kay LAVERDURE, William Laverdure, Ronald Laverdure and Patricia Laverdure, "K" Koncrete Co., "K"

Koncrete, Inc., an Illinois Corporation,

Defendants- Appellees.

"K" KONCRETE, INC., Ronald Laverdure and Patricia Laverdure, d/b/a "K" Koncrete Co., Third-party Plaintiffs-Appellees, v. BENA ASSOCIATES, INC., Third-party Defendant-Appellant, and Baranyk-Popwych, Ltd., Third-party Defendant.

No. 83-1125.

Appellate Court of Illinois First District, Second Division.

Sept. 18, 1984.

Stephen E. Sward, David C. Gustman, Rooks, Pitts, Fullagar & Poust, Chicago, for third-party defendant-appellant.

Aaron M. Spiezer, St. Charles, and Eric Ferleger, Chicago, for third-party plaintiffs-appellees.

DOWNING, Justice:

Does a cause of action for active-passive indemnity continue to exist in Illinois as the result of the adoption of the Contribution Among Joint Tortfeasors Act (hereinafter referred to by section number as the "Contribution Act")? (Ill.Rev.Stat.1983, ch. 70, par. 301 et seq.) The trial court denied a motion to dismiss a third-party complaint based exclusively on active-passive indemnification, and certified three questions to this court. We granted interlocutory review. The pleadings allege the following facts.

Plaintiff Anthony Morizzo, the owner of Morizzo's Ridgewood Funeral Home in Chicago, entered into a contract with Bena Associates, Inc. (hereinafter "Bena") for the construction of a building addition according to the plans and specifications prepared by architect Barnyk-Popwych, Ltd. Bena, as the general contractor, entered into a subcontract with Kay Laverdure, William Laverdure, Ronald Laverdure and Patricia Laverdure, d/b/a "K" Koncrete Co., later incorporated as "K" Koncrete, Inc. (hereinafter " 'K' Koncrete"), to perform concrete, foundation and flatwork services for the project.

In performing its excavation work according to the subcontract, "K" Koncrete relied upon plans drafted by the architect and provided by Bena. The plans of the original structure were inaccurate in that they showed an L-lot line footing on the building that did not, in fact, exist. "K" Koncrete excavated to approximately four feet, or to the bottom of the foundation of the original building, which led to its collapse on May 8, 1979.

Plaintiff filed suit in November 1979 seeking compensation for the damages to his property and business; in his third amended complaint he named both Bena and "K" Koncrete as defendants. Thereafter, a settlement agreement was reached between plaintiff and Bena. Plaintiff was paid the sum of $67,500 and Bena was dismissed from the action with prejudice.

"K" Koncrete, on November 6, 1981, initiated a third-party action against Bena and the architect. In its amended complaint, "K" Koncrete alleged, inter alia, that the architect and Bena submitted plans which were wrong and inaccurate; that it had to rely on the accuracy of the plans; that Bena and the architect had a duty to accurately inform it of the building's foundation; that it worked only at the direction and under the control of Bena; and that, therefore, any liability to plaintiff would be based solely on its passive conduct in performing the contract pursuant to Bena's direction and control. "K" Koncrete further alleged that any harm to plaintiff was the proximate result of the active and wrongful conduct of Bena and the architect. "K" Koncrete requested that if it was found liable to plaintiff, a judgment in like sum should be entered in favor of itself against the architect and Bena jointly and severally, and that it recover from the architect and Bena its costs and attorney fees.

In its motion to dismiss the third-party complaint, Bena claimed that section 302(c), (d) of the 1981 Contribution Act ¹ protects a settling defendant, such as itself, from further liability to any alleged joint tortfeasor. The trial court denied Bena's motion to dismiss and Bena thereafter requested that the court make a finding pursuant to Supreme Court Rule 308 (87 Ill.2d R. 308), urging that the trial court's order involved questions of law as to which there is substantial ground for difference of opinion and that an immediate appeal would materially advance the ultimate termination of the litigation.

The trial court certified the following questions of law as a result of Bena's request:

"1. A question of law exists as to whether a cause of action for active-passive indemnity exists in Illinois in light of the Contribution Statute, Ill.Rev.Stat.Ch. 70 § 301 et seq.

2. If the answer to the first question is in the affirmative, a question of law exists as to whether a pretort relationship between the indemnitor and indemnitee is a necessary prerequisite to an action for active-passive indemnity?

3. If the answer to the second question is in the affirmative, a question of law exists as to whether a pretort relationship as follows:

a subcontractor, who is sued by plaintiff for acts of negligence that allegedly resulted in injury to the plaintiff, brings a third-party action against the general contractor for indemnity;

is within the scope of a pretort relationship as that term was used by the First District Appellate Court in Van Jacobs v. Parikh, 97 Ill.App.3d 610, 52 Ill.Dec. 770, 422 N.E.2d 979 (1981) which will allow the potentially liable defendant to seek indemnity based on the active-passive theory."

Application for leave to appeal to this court was subsequently granted.

I.

On appeal, Bena contends that the Contribution Act has superceded the judicially-created concept of active-passive implied indemnity, and that by enacting the statute, the legislature created an express and exclusive remedy for joint tortfeasors seeking apportionment of their relative culpabilities. As provided in the Act, a tortfeasor who settles with a claimant "is discharged from all liability for any contribution to any other tortfeasor." (Section 302(d) of the 1981 Act.) Bena thus argues that if "K" Koncrete is allowed to bring Bena, who has already settled with plaintiff, back into this lawsuit under the theory of indemnity, the legislative scheme will be undermined.

A. Pre-Contribution Act

Before this issue is addressed, the development of the theory of indemnification in Illinois will be briefly examined.

Indemnity is a common law doctrine which shifts the entire loss from one tortfeasor, who has been compelled to pay the loss, to another. (Prosser, Torts § 51, at 310 (4th ed. 1971).) Some cases have held that a pre-tort relationship with the indemnitor must be shown as well as some significant difference in the nature of their respective conduct which justifies a shifting of liability. (See, e.g., Muhlbauer v. Kruzel (1968), 39 Ill.2d 226, 230-31, 234 N.E.2d 790.) Other cases have recognized such implied indemnity, even in the absence of a pre-tort relationship. (See, e.g., Loehr v. Illinois Bell Telephone Co. (1st Dist.1974), 21 Ill.App.3d 555, 558, 316 N.E.2d 251.) In indemnity, the measure of recovery is all or nothing. (Heinrich v. Peabody International Corp. (1984), 99 Ill.2d 344, 349, 459 N.E.2d 935.) Illinois previously adhered to the common law rule barring contribution among tortfeasors. (See, Sargent v. Interstate Bakeries, Inc. (1st Dist.1967), 86 Ill.App.2d 187, 193-94, 229 N.E.2d 769.) The concept of implied indemnification based upon the active-passive negligence doctrine was developed and expanded by the courts in order to mitigate the harsh effects of the no-contribution bar.

The right to indemnity stands upon the principle that everyone is responsible for the consequences of his own acts. (Sargent, at 190, 229 N.E.2d 769.) Indemnity can be express, based upon the agreement of the parties, implied by operation of law, or implied by the courts based upon the theory of active-passive negligence.

In 1977, the supreme court overturned the long-standing common law rule which prohibited contribution among tortfeasors. (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.) In Skinner, which involved a workman's compensation claim, the original defendant filed a third-party complaint against plaintiff's employer claiming contribution. The supreme court held there was no valid reason for the continued existence of the no-contribution rule.

B. Post-Contribution Act

In 1979, the General Assembly adopted the Contribution Act. As was said in Doyle v. Rhodes (1984), 101 Ill.2d 1, 77 Ill.Dec. 759, 461 N.E.2d 382, "[t]he statute, as adopted in Illinois, was intended to codify the Skinner decision, not to diminish its scope"; and " '[t]he rule adopted in Skinner was codified and clarified by the General Assembly in 1979 in the Contribution Among Joint Tortfeasors Act (Ill.Rev.Stat.1979, ch. 70, par. 301 et seq.).' These unanimous utterances filed so recently should put to rest any question as to whether this court believes that the Contribution Among Joint Tortfeasors Act as adopted in this State was intended to modify Skinner rather than to codify it." Doyle, at 8-9, 461 N.E.2d 382.

To respond to the first of the certified questions, we must look at the intent of the legislature. If legislative intent is clear and unambiguous and can be ascertained from the language of the statute, that intent must prevail. Western National Bank of Cicero v. Village of Kildeer (1960), 19 Ill.2d 342, 350, 167 N.E.2d 169; Franzese v. Trinko (1977), 66 Ill.2d 136, 139, 5 Ill.Dec. 262, 361 N.E.2d 585; People ex rel. Callahan v. Marshall Field & Co. (1st Dist.1980), 83 Ill.App.3d 811, 813-14, 38 Ill.Dec. 944, 404 N.E.2d 368.

But, the Contribution Act is silent with respect to the interplay between its intent and the right of express or implied indemnity. We therefore...