Nogacz v. Procter & Gamble Mfg. Co.

• Court: Appellate Court of Illinois
• Writing for the Court: MEJDA; McGLOON, P.J., and DEMPSEY
• Citation: Nogacz v. Procter & Gamble Mfg. Co., 347 N.E.2d 112, 37 Ill.App.3d 636 (Ill. App. 1975)
• Decision Date: 04 December 1975
• Docket Number: No. 58121,58121
• Parties: Fillimon NOGACZ, Plaintiff-Appellee, v. PROCTER & GAMBLE MANUFACTURING CO., a Foreign Corporation, and Teutsch& Associates, Defendants Third-Party Plaintiffs-Appellees, v. CEISEL & McGUIRE, INC., Third-Party Defendant-Appellant.

Page 112

347 N.E.2d 112

37 Ill.App.3d 636

Fillimon NOGACZ, Plaintiff-Appellee, v. PROCTER & GAMBLE MANUFACTURING CO., a Foreign Corporation, and Teutsch& Associates, Defendants Third-Party Plaintiffs-Appellees, v. CEISEL & McGUIRE, INC., Third-Party Defendant-Appellant.

No. 58121.

Appellate Court of Illinois, First District, Third Division.

Dec. 4, 1975.

As Modified on Denial of Rehearing May 6, 1976.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, for Ceisel & McGuire, Inc.; D. Kendall Griffith, Chicago, of counsel.

Lord, Bissell & Brook, Chicago, for Procter & Gamble; Alvin E. Domash, Chicago, of counsel.

McKenna, Storer, Rowe, White & Haskell, Chicago, for Teutsch & Assoc.; William J. McKenna, Robert S. Soderstrom, Chicago, of counsel.

Lane, Falasz, Pollman & Hoyt, Chicago, for Nogacz.

MEJDA, Justice.

Plaintiff, Filimon Nogacz, commenced this action against defendants-third party plaintiffs, Procter & Gamble Manufacturing Co. (Procter) and Teutsch & Associates (Teutsch), to recover damages for personal injuries sustained in a fall from a scaffold located on Procter's premises. Defendants each filed third-party actions for indemnity against the third party defendant, Ceisel & McGuire, Inc. (Ceisel), the masonry contractor and employer of plaintiff. Summary judgments providing for indemnity were entered in favor of Procter and Teutsch, defendants-third party plaintiffs, against Ceisel. A consent judgment was entered in favor of plaintiff against Procter and Teutsch for $181,089.70, their settlement agreement. On the following day the trial court entered judgment for Procter and Teutsch and against Ceisel for $191,089.70, and also $15,816.51 for fees and expenses. Ceisel appeals from the entry of the summary judgments, the consent judgment and the monetary judgment entered against it in the third-party proceeding. The pertinent facts follow.

Plaintiff was employed by Ceisel, the masonry contractor engaged to repair a wall on Procter's building. Teutsch was the architect employed by the owner. On the day of the accident plaintiff was working on a scaffold owned and erected by Ceisel. The planks of the scaffold overlapped and were not fastened to the supporting cross-arms. As plaintiff backed a wheelbarrow of mortar off a hoist and onto the scaffold the plans bent and slipped, causing him to fall 20 feet onto a concrete apron. He sustained severe physical injuries.

Plaintiff commenced this action by filing a two-count complaint against Procter and Teutsch, seeking damages predicated upon defendants' common law negligence and breach of the Illinois Structural Work Act (Ill.Rev.Stat.1969, ch. 48, pars. 60--69). After an unsuccessful tender of defense of this suit to Ceisel's insurer and thereafter to Ceisel, Procter filed its answer to the complaint and also a two-count third-party complaint against Ceisel. Count I alleged a contractual duty of Ceisel to indemnify Procter upon an indemnity agreement between the parties which provided in substance that 'Seller (Ceisel) agrees to indemnify and save buyer (Protecter) harmless from any and all judgments, orders, decrees, awards, costs . . . which may be sustained . . . arising out of or in connection with the work done excepting only claims based solely on acts negligently committed by buyer . . .' In Count II Procter alleged that Ceisel was the active tort-feasor and was liable upon noncontractual implied indemnity or common law indemnity. Teutsch, in its third-party complaint against Ceisel also alleged that Ceisel's actions constituted active negligence, and sought to recover from Ceisel upon that theory. Ceisel's motion for summary judgment as to Count I of Procter's third-party complaint was denied. After a hearing, Procter's motion for summary judgment on Count I for contractual indemnity was granted on February 11, 1972. Ceisel had not filed any affidavit in opposition, and no objection is recited in the order granting summary judgment. The order, entered Nunc pro tunc as of February 8, 1972, provided in relevant part:

'IT IS HEREBY ORDERED that Summary Judgment is granted to third-party plaintiff, THE PROCTER & GAMBLE MANUFACTURING COMPANY, with respect to Count I of the Third-Party Complaint against third-party defendant, CEISEL & McGUIRE, INC., and that should judgment be entered against THE PROCTER & GAMBLE MANUFACTURING COMPANY in favor of plaintiff, FILIMON NOGACZ, the third-party defendant, CEISEL & McGUIRE, INC., is ordered to indemnity and hold the third-party plaintiff harmless from any and all judgments in addition to any and all costs, attorneys' fees and expenses incurred by the third-party plaintiff in this action up to $250,000;'

In a letter dated February 10, 1972, to counsel for Procter, Ceisel demanded control of the defense to the claims of the plaintiff, and further, a severance and delay of trial as to the third-party action until the initial action was completed. Ceisel further demanded that in the event Procter was unwilling to agree to a partial severance or total severance, the third-party complaint be dismissed without prejudice to refiling subsequently. On February 17, 1972, Procter again tendered the defense of the main action to Ceisel. In a letter of that date, Procter stated that Teutsch and Procter intended to proceed with their motions for summary judgment for noncontractual indemnity; that if granted, counsel could defend defendants without placing Ceisel before the jury and obviate the necessity and expense of a subsequent trial as to indemnity; and that if the motions were denied it would agree to a severance or a dismissal without prejudice to the third-party claims.

On May 19, 1972, the trial court granted summary judgment, Nunc pro tunc as of May 18, 1972, for Procter as to Count II of its third-party complaint for noncontractual indemnity. Procter's motion was supported by affidavits and other documents. The order stated in part that Ceisel had waived the opportunity to file any pleading, exhibit or brief in opposition to the motion but objected to the entry of summary judgment for Procter upon the issue of indemnity. The order specifically provided, Inter alia:

'. . . the Court finding that there is no material and genuine disputed question of fact, and that the negligence, if any, of THE PROCTER & GAMBLE MFG. CO. is technical or passive in nature as a matter of law, whereas the negligence, if any, if CEISEL & McGUIRE, INC., is active or primary in nature as a matter of law;

'IT IS FURTHER ORDERED that should judgment be entered against THE PROCTER & GAMBLE MFG. CO. in favor of plaintiff, FILIMON NOGACZ, the third-party defendant, CEISEL & McGUIRE, INC. is ordered to indemnify and hold the third-party plaintiff, THE PROCTER & GAMBLE MFG. CO., harmless from any and all judgments so entered in addition to any and all costs, attorneys' fees and expenses incurred by the third-party plaintiff in defense of this action;

'IT IS FURTHER ORDERED that the court finds there is no just reason to delay enforcement of or appeal from this order.'

On May 24, 1972, summary judgment was entered on Teutsch's motion which similarly required Ceisel to indemnify and hold Teutsch harmless, and stated there was no just reason to delay enforcement or appeal. In addition, it provided that Ceisel need not file a notice of appeal until such time as one must be filed as to any judgment entered for plaintiff Nogacz.

On May 31, 1972, plaintiff filed his first amended complaint charging defendants only with violations of the Structural Work Act and omitting the negligence count. In a letter dated May 25, 1972, counsel for Ceisel demanded that Teutsch allow Ceisel to defend it against the claims of Nogacz in the initial action, and that Teutsch either so agree or rescind the order granting summary judgment and dismiss the third-party complaint without prejudice to refiling. The letter noted the summary judgment in favor of Teutsch found no just reason to delay enforcement or appeal but allowed time for notice of appeal to begin upon entry of a judgment for Nogacz. Counsel maintained that the court was without power to enter a final order on the third-party complaint in the instant case.

During the May 24, 1972 hearing on Procter's motion for summary judgment as to noncontractual implied indemnity the court heard argument of counsel concerning Procter's and Teutsch's potential liability in the initial action. Ceisel again argued that it had the right to defend both third-party plaintiffs and to raise the issue of indemnity both in the trial court and on appeal. Procter stated in response: 'You want to control the defense without our participation and refuse to indemnity us. This we cannot agree to.' Thus, in effect, Procter tendered the complete defense of the initial action and sought a waiver of Ceisel's right to contest the indemnity issue. On the other hand, Ceisel sought to control the defense of Procter and Teutsch as to Nogacz while at the same time denying any liability on its part.

In a letter of May 25, 1972 from Procter to Ceisel, counsel restated the position of Ceisel taken at the May 24, 1972 hearing wherein Ceisel agreed to be bound by the state of the record upon a future appeal as to the noncontractual implied indemnity but intended to contest the contractual indemnity. The letter again tendered Procter's defense and requested that Ceisel hold Procter completely harmless, and stated that upon refusal, Procter would maintain its own defense and look to Ceisel and its insurer for reimbursement of all costs and expenses.

On May 31, 1972, Ceisel made an oral motion to vacate and rescind all summary judgments previously entered against it. The letter of February 10, 1972 to Procter demanding tender of the defense to the original claim and the response of Procter thereto on February 17, 1972 were introduced in support of the motion. During oral argument, counsel for Procter stated:

'In addition thereto, we...