Rome v. Commonwealth Edison Co., No. 78-1673
| Court | United States Appellate Court of Illinois |
| Writing for the Court | PERLIN |
| Citation | 81 Ill.App.3d 776,401 N.E.2d 1032 |
| Parties | , 36 Ill.Dec. 894 Harry J. ROME, Plaintiff, v. COMMONWEALTH EDISON CO., a corporation, Brown & Lambrecht, an Illinois Corporation, Brown & Lambrecht Earthmovers, Inc., a corporation, Defendants. COMMONWEALTH EDISON CO., a corporation, Third Party Plaintiff-Appellant, v. WALSH CONSTRUCTION CO., a Division of Guy F. Atkinson Co., a corporation, Third Party Defendant-Appellee. |
| Decision Date | 05 February 1980 |
| Docket Number | No. 78-1673 |
Page 1032
v.
COMMONWEALTH EDISON CO., a corporation, Brown & Lambrecht,
an Illinois Corporation, Brown & Lambrecht
Earthmovers, Inc., a corporation, Defendants.
COMMONWEALTH EDISON CO., a corporation, Third Party
Plaintiff-Appellant,
v.
WALSH CONSTRUCTION CO., a Division of Guy F. Atkinson Co., a
corporation, Third Party Defendant-Appellee.
Page 1033
[81 Ill.App.3d 778] [36 Ill.Dec. 895] Clausen, Miller, Gorman, Caffrey & Witous, P. C., Chicago (James T. Ferrini and Fredrick J. Grossman, Chicago, of counsel), for third party plaintiff-appellant.
Baker & McKenzie, Chicago (Francis D. Morrissey and Edward J. Zulkey, Chicago, of counsel), for third party defendant-appellee.
PERLIN, Presiding Justice:
Commonwealth Edison Company (hereinafter Edison) appeals from an order of the circuit court of Cook County dismissing Edison's third party complaint for indemnity against Walsh Construction Company (hereinafter Walsh). The following issues are presented for review: (1) whether the third party complaint failed to adequately state a cause of action for indemnity; and (2) whether Walsh's purchase of an insurance policy covering Edison's liability relieves Walsh of any liability, either contractual or implied, to indemnify Edison.
For reasons hereinafter stated, we reverse.
Plaintiff, Harry J. Rome, filed a complaint against Commonwealth Edison Company to recover for injuries sustained by plaintiff on February 20, 1975 while he was working on a construction project at the Seneca Power Plant in Seneca, Illinois. Plaintiff alleged that he was an employee of Walsh Construction Company and he was injured when he fell into an excavated area. Count I of the complaint was based on the Structural Work Act and alleged that Edison owned and was in charge of construction at the Seneca plant, that Edison participated in coordinating, scheduling and inspecting the work and had authority to stop the work, and that Edison failed to operate a safe excavating area. Count II alleged negligence by Edison in failing to make reasonable inspections, failing to maintain a safe place to work, failing to warn of dangerous conditions and failing to supervise and provide safeguards. The original complaint is not involved in the appeal.
Edison filed a third party complaint for indemnity against Walsh Construction Company. Count I was based on the theory of implied indemnity and alleged that any negligent acts of Edison were passive while the acts of Walsh were active. Count II was based on the indemnity provision of the contract between Walsh and Edison.
On October 28, 1976, pursuant to a motion filed by Walsh, the trial court dismissed Count II of the third party complaint on the basis that the contractual indemnity
Page 1034
[36 Ill.Dec. 896] provision was void under section 1 of an Act in relation to indemnity in certain contracts. (Ill.Rev.Stat.1975, ch. 29, par. [81 Ill.App.3d 779] 61.) Section 1 provides that an agreement in a construction contract to indemnify another person from that person's own negligence is void as against public policy and is unenforceable. The order dismissing Count II is not contested and is not involved in this appeal. Although the indemnity provision of the contract was invalid, the other provisions of the contract remained in force.Walsh filed a motion to dismiss Count I of the third party complaint alleging that the contract between Walsh and Edison required Walsh to obtain a general liability insurance policy naming Edison as the beneficiary and covering all work related acts performed by Walsh and that the obtaining of said insurance policy satisfied any right of indemnity, either contractual or implied, that might exist in connection with acts performed by Walsh. In an amendment to the motion to dismiss, Walsh further alleged that Count I should be dismissed as a matter of law because it failed to plead sufficiently a distinction between the conduct of the parties in that one party's conduct was active while the conduct of the other party (Edison) was passive.
On July 11, 1978 the trial court granted Walsh's motion to dismiss Count I of the third party complaint and dismissed Count I with prejudice. Edison appeals from the order dismissing Count I.
Initially it should be noted that the order dismissing Count I stated neither specific findings of fact nor the specific grounds upon which the court based its ruling. However, a general order of dismissal may be sustained on any basis found in the record, regardless of what led the trial court to its conclusion. (Glick v. Sabin (1st Dist. 1977), 53 Ill.App.3d 96, 99, 11 Ill.Dec. 74, 368 N.E.2d 625.) Further, we note that the contractual indemnity provision did not preclude Edison from seeking recovery on a common law implied indemnity theory. This court recently held in McGinn v. Northwestern Steel & Wire Co. (1st Dist. 1978), 68 Ill.App.3d 632, 638, 24 Ill.Dec. 867, 386 N.E.2d 71 (supplemental opinion) leave to appeal denied (1979), 75 Ill.2d 591, that although recovery through indemnification may be had on only one theory, either contractual or implied indemnity, there is nothing to prevent a party from seeking recovery under both theories. The rule is well established that a party has the right to plead and introduce proof on all possible theories of recovery, even if the theories are inconsistent.
Walsh contends that the trial court properly dismissed Count I of the third party complaint because Count I failed to state a cause of action for indemnity. Walsh further contends that Edison waived the issue of the sufficiency of the complaint because Edison did not argue the point in its appellate brief and therefore the appellate court should affirm the dismissal. In its reply brief Edison contends that there is a waiver of an issue raised by appellee only if the appellant does not respond thereto in its reply brief and that the third party complaint was sufficient to [81 Ill.App.3d 780] withstand a motion to dismiss...
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...on any basis found in the record regardless of what led the trial court to its conclusion. (Rome v. Commonwealth Edison Co. (1980), 81 Ill.App.3d 776, 36 Ill.Dec. 894, 401 N.E.2d 1032.) It is the judgment that is on appeal and not what else may have been said by the lower court. (Material S......
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Oliveira v. Amoco Oil Co., No. 4-98-0199.
...obligation to anticipate every argument an appellee might raise and address it in his opening brief. Rome v. Commonwealth Edison Co., 81 Ill.App.3d 776, 780, 36 Ill.Dec. 894, 401 N.E.2d 1032, 1034-35 (1980). Therefore, defendant's motion to dismiss portions of plaintiff's reply brief is B. ......
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People v. Smith, No. 78-1525
...judge stated that he "studied very carefully and relied on" the presentence report. The presentence report disclosed that defendant had [81 Ill.App.3d 776] been A.W.O.L. from the army and was given a dishonorable discharge in 1969; that defendant was a heroin addict until 1975; and that at ......
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Lulich v. Sherwin-Williams Co., No. 89 C 1707.
...Zettel v. Paschen Contractors, Inc., 100 Ill. App.3d 614, 56 Ill.Dec. 109, 427 N.E.2d 189 (1981); Rome v. Commonwealth Edison Co., 81 Ill.App.3d 776, 781, 36 Ill.Dec. 894, 898, 401 N.E.2d 1032, 1036 (1980). In Zettel, the court considered a provision in which a subcontractor agreed to secur......
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American Environmental, Inc. v. 3-J Co., 2-90-1334
...on any basis found in the record regardless of what led the trial court to its conclusion. (Rome v. Commonwealth Edison Co. (1980), 81 Ill.App.3d 776, 36 Ill.Dec. 894, 401 N.E.2d 1032.) It is the judgment that is on appeal and not what else may have been said by the lower court. (Material S......
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Oliveira v. Amoco Oil Co., 4-98-0199.
...obligation to anticipate every argument an appellee might raise and address it in his opening brief. Rome v. Commonwealth Edison Co., 81 Ill.App.3d 776, 780, 36 Ill.Dec. 894, 401 N.E.2d 1032, 1034-35 (1980). Therefore, defendant's motion to dismiss portions of plaintiff's reply brief is B. ......
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People v. Smith, 78-1525
...judge stated that he "studied very carefully and relied on" the presentence report. The presentence report disclosed that defendant had [81 Ill.App.3d 776] been A.W.O.L. from the army and was given a dishonorable discharge in 1969; that defendant was a heroin addict until 1975; and that at ......
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Lulich v. Sherwin-Williams Co., 89 C 1707.
...Zettel v. Paschen Contractors, Inc., 100 Ill. App.3d 614, 56 Ill.Dec. 109, 427 N.E.2d 189 (1981); Rome v. Commonwealth Edison Co., 81 Ill.App.3d 776, 781, 36 Ill.Dec. 894, 898, 401 N.E.2d 1032, 1036 (1980). In Zettel, the court considered a provision in which a subcontractor agreed to secur......