Schuch v. University of Chicago

Decision Date22 August 1980
Docket NumberNo. 79-1048,79-1048
Citation43 Ill.Dec. 258,410 N.E.2d 258,87 Ill.App.3d 856
Parties, 43 Ill.Dec. 258 Joseph M. SCHUCH, Plaintiff, v. The UNIVERSITY OF CHICAGO et al., Defendants. MUELLAR CONSTRUCTION COMPANY, Defendant-Third Party Plaintiff-Appellant, v. NEW CITY STEEL CORPORATION, Third Party Defendant-Appellee.
CourtUnited States Appellate Court of Illinois

Kralovec, Marquard, Doyle, Gibbons & Fraterrigo, Chartered, Chicago, for plaintiff; Charles V. Kralovec, Michael T. Sprengnether, Chicago, of counsel.

Goldenson, Kiesler, Berman & Brenner, Chicago, for defendants; John R. Garofalo, Valerie S. Green, Chicago, of counsel.

LORENZ, Justice:

Plaintiff brought an action against six defendants, including Muellar Construction Company (Muellar), a general contractor, for personal injuries sustained on October 6, 1976, when he fell from a scaffold while working at the site of the Erman Biology Center at the University of Chicago. Plaintiff's amended complaint alleged willful violations of the Structural Work Act (Ill.Rev.Stat.1977, ch. 48, par. 60, et seq.) by all defendants and that each was a person "having charge of" the work in progress. Muellar filed a two-count third party complaint against New City Steel Corporation (New City), plaintiff's employer, seeking contractual indemnification in Count I for liability it may incur to plaintiff in the principal action. New City's motion to dismiss Count I of Muellar's third party complaint for its failure to state a cause of action was granted by the trial court. From this order Muellar appeals.

The dispositive issue before us on appeal is as follows: whether the trial court properly found that the indemnity provision of the agreement between Muellar and New City which served as the basis of Muellar's complaint holds Muellar harmless for its own negligence and is therefore void under "An Act in relation to indemnity in certain contracts" (the Act) (Ill.Rev.Stat.1977, ch. 29, pars. 61-63.) Section 1 of the Act provides in pertinent part:

"With respect to contracts or agreements, either public or private, for the construction, alteration, repair or maintenance of a building, structure, * * * 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." Ill.Rev.Stat.1977, ch. 29, par. 61.

Our decision turns on the language used in the indemnity provision contained in the agreement between Muellar and New City. Paragraph 4 of the section entitled "General Conditions" states:

"The Subcontractor (New City) hereby assumes entire responsibility and liability for any and all damage and injury of any kind * * * to all persons * * * growing out of, or resulting from the labor or material or both used in the performance of this contract or occurring in connection therewith, and agrees to indemnify and save harmless Muellar * * * from and against any and all loss * * * growing out of, or resulting therefrom, or occurring in connection therewith.

Subcontractor further agrees to indemnify and hold harmless the contractor * * * from all claims, causes of action or suits of whatsoever nature, for personal injury, including death resulting therefrom * * * occasioned or arising by virtue of the provisions * * * of the Illinois Revised Statutes commonly referred to as the "Scaffolding Act of Illinois."

It is well established that an indemnity contract will not be construed as indemnifying one against his own negligence unless such a construction is required by clear and explicit language or such intention is expressed in unequivocal terms. (Zadak v. Cannon (1974), 59 Ill.2d 118, 319 N.E.2d 469; Westinghouse Electric Elevator Co. v. La Salle Monroe Building Corp. (1946), 395 Ill. 429, 70 N.E.2d 604.) Each agreement is to be given a "fair and reasonable interpretation based upon a consideration of all of its language and provisions." Tatar v. Maxon Construction Co. (1973), 54 Ill.2d 64, 67, 294 N.E.2d 272, 274.

In Cotter v. Consolidated Construction Co. (1977), 50 Ill.App.3d 332, 8 Ill.Dec. 398, 365 N.E.2d 636, contractual language similar to that employed in the present indemnity provision was analyzed. There, plaintiff received an $18,000 judgment for personal injuries resulting from Consolidated Construction Company's (Consolidated) violations of the Structural Work Act. Consolidated filed a third party complaint against plaintiff's employer, White City Electric Company (White City), based upon an agreement between the parties which provided:

"(White City) shall * * * indemnify and save harmless (Consolidated) * * * against all loss, * * * on account of * * * injuries, * * * to persons (including, without limiting the generality of the foregoing, employees of (White City)) * * * in any way arising out of or connected with the performance of the work by (White City) or the use by (White City) or its employees, * * * of facilities or equipment furnished or owned by (Consolidated), * * * including, without limiting the generality of the foregoing, all claims arising out of the operation of the structural work law * * *."

The appellate court, citing Westinghouse and Tatar, held that the language of the agreement was not clear and unequivocal in nature and therefore was not broad enough to cover the negligent conduct of Consolidated which led to plaintiff's injuries.

Turning to the present case, we note that the terms of the indemnity provision likewise fail to explicitly hold Muellar harmless for its own...

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  • Long v. Bucyrus-Erie Co., BUCYRUS-ERIE
    • United States
    • United States Appellate Court of Illinois
    • February 15, 1983
    ...contractual language to that effect. (See Zadak v. Cannon (1974), 59 Ill.2d 118, 319 N.E.2d 469; Schuch v. University of Chicago (1980), 87 Ill.App.3d 856, 43 Ill.Dec. 258, 410 N.E.2d 258.) This rule was invoked prior to the enactment of section 1 of the Act to limit the enforcement of such......
  • La Salle Nat. Bank v. City of Warrenville
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    ...N.E. 228 (1932); Westinghouse Co. v. Bldg. Corp., 395 Ill. 429, 432-33, 70 N.E.2d 604 (1946); Schuch v. University of Chicago, 87 Ill.App.3d 856, 858, 43 Ill.Dec. 258, 410 N.E.2d 258 (1980). The authorities are cited by Naper, however, to support its contention that the agreement with Westv......
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    ...the ability to exercise supervisory or regulatory power, whether exercised or not, is found in Schuch v. University of Chicago (1980), 87 Ill.App.3d 856, 43 Ill.Dec. 258, 410 N.E.2d 258, in which the court held that a party may be liable under the Structural Work Act as "having charge of" t......
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