Sorrentino v. Waco Scaffolding & Shoring Co., Inc.

• Decision Date: 28 December 1976
• Docket Number: Nos. 62258,62345,s. 62258
• Citation: 3 Ill.Dec. 559,358 N.E.2d 1244,44 Ill.App.3d 1055
• Parties: , 3 Ill.Dec. 559 Donald SORRENTINO and Susan Sorrentino, Plaintiffs, v. WACO SCAFFOLDING & SHORING CO., INC., et al., Defendants. WACO SCAFFOLDING & SHORING CO., INC., Third-Party Plaintiff-Appellant, v. R. B. HAYWARD & CO., Third-Party Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1244

358 N.E.2d 1244

44 Ill.App.3d 1055, 3 Ill.Dec. 559

Donald SORRENTINO and Susan Sorrentino, Plaintiffs, v. WACO SCAFFOLDING & SHORING CO., INC., et al., Defendants.

WACO SCAFFOLDING & SHORING CO., INC., Third-Party Plaintiff-Appellant, v. R. B. HAYWARD & CO., Third-Party Defendant-Appellee.

Nos. 62258, 62345.

Appellate Court of Illinois, First District, Second Division.

Dec. 28, 1976.

O'Brien, Redding & Hyde, Chicago (Donald J. O'Brien, Jr., Richard M. O'Brien, Dom J. Rizzi, Michael W. Rathsack, Chicago, of counsel), for plaintiffs.

Timothy J. Gillick, Pretzel, Stouffer, Nolan & Rooney, Chicago (Joseph B. Lederleitner, Chicago, of counsel), for defendants.

DOWNING, Justice.

Waco Scaffolding & Shoring Co., Inc. (Waco) brought a third party action to obtain indemnity from R. B. Hayward & Co. (Hayward). After finding that the underlying litigation was based on strict liability and that Waco had failed to state a cause of action, the trial court dismissed the third party complaint. Waco now appeals raising the following issues for our review: (1) whether a written contractual obligation of indemnity is vitiated because the indemnitee is sued by the injuries plaintiff on the theory of strict liability; (2) whether the indemnitee's negligence is an issue in a contractual indemnity action where the indemnitee is sued by the plaintiff on the theory of strict liability; and (3) whether Ill.Rev.Stat.1973, ch. 29, par. 61 applies to equipment leasing contracts. ¹

Donald and Susan Sorrentino, plaintiffs in the underlying suit, filed a complaint against defendants Waco, Hayward, and several others not involved in the appeal. Relevant to our review, count I of the complaint alleged that Donald Sorrentino sustained injuries while working on a scaffold leased by Waco to Sorrentino's employer, Hayward; and that when Waco manufactured the scaffold, it was defective, unsafe, and unreasonably dangerous for its intended use. Count II alleged Susan Sorrentino's loss of consortium.

Waco then filed a third party complaint against Hayward seeking indemnity for any judgment which might be entered against Waco as a result of the Sorrentino claim. The third party complaint alleged that Waco leased scaffolding to Hayward under a lease agreement, which provided that Hayward would indemnify Waco for any claim arising out of its use of the equipment. In part the agreement provided:

'2. The LESSEE shall at all times and at his own expense keep the leased equipment in good, safe and efficient working order, repair and condition and shall not permit anyone to injure, deface or remove it or any part thereof. LESSEE agrees to erect, maintain and use said equipment in a safe and proper manner and in conformity with all laws and ordinances pertaining thereto and in accordance with COMPANY safety rules and regulations. The COMPANY shall have no responsibility, direction, or control over the manner of erection, maintenance, use or operation of said equipment by the LESSEE. The LESSEE assumes all responsibility for claims asserted by any person whatever growing out of the erection and maintenance, use or possession of said equipment, and agrees to hold the COMPANY harmless from all such claims. LESSEE agrees that use of the leased equipment shall be construed as an absolute acknowledgment by LESSEE that when delivered to LESSEE by COMPANY the equipment was in good order and repair, was properly erected and was in all respects adequate, sufficient and proper for the purposes for which it was intended.'

Hayward filed a motion to dismiss the third party complaint, alleging that the indemnity agreement was void pursuant to chapter 29, section 61 of the Illinois Revised Statutes because it attempted to create a right of indemnity for Waco's negligence; that the indemnity agreement was insufficient to indemnify Waco against its own negligence; and that in the event that the Sorrentino claim was construed as sounding in strict liability, the third party complaint failed to state a cause of action. The motion was granted.

The trial court's order held that Waco's third party complaint did not state a cause of action; and that since Waco was sued in strict liability, there could be no action against Hayward. Waco now appeals.

I.

It is fundamental that unless a contract is ambiguous, its meaning must be determined from the words used; and that courts will not construe into the contract provisions that are not therein. (Westinghouse Electric Elevator Co. v. LaSalle Monroe Building Corp. (1946), 395 Ill. 429, 432, 70 N.E.2d 604.) Further, contracts for indemnification are to be carefully scrutinized and strictly construed. (De Tienne v. S. N. Nielsen Co. (1st Dist.1963), 45 Ill.App.2d 231, 233, 195 N.E.2d 240, citing Westinghouse, supra.) In the case at bar, therefore, we must examine the contract to determine if it specifically provided for Waco's indemnification from Hayward in light of the Sorrentino claim.

As we view the contract, the key provision is that '(t)he LESSEE assumes all responsibility for claims asserted by any person whatever growing out of the erection and maintenance, use or possession of said equipment, and agrees to hold the COMPANY harmless from all such claims.' The plaintiffs' action was premised on strict liability arising from Waco's Manufacture of a scaffold which was dangerous and defective when it left Waco's control. Yet the hold harmless clause does not purport to allow Waco indemnification for its asserted strict liability as manufacturer of a dangerous and defective scaffold. Instead the indemnity agreement is addressed to those claims 'growing out of the erection and maintenance, use or possession of said equipment * * *.' (Emphasis added.) Although Waco contends that by the terms of the contract Hayward agreed to indemnify and hold Waco...