Thatcher v. Commonwealth Edison Co., s. 3-85-0542

• Decision Date: 24 September 1986
• Docket Number: Nos. 3-85-0542,3-85-0581,s. 3-85-0542
• Citation: 497 N.E.2d 1352,147 Ill.App.3d 534
• Parties: , 101 Ill.Dec. 39 Paul THATCHER, Plaintiff-Appellant Cross-Appellee, v. COMMONWEALTH EDISON COMPANY, Defendant and Third-Party Plaintiff-Appellant and Cross-Appellee (Dow Chemical Company, Third-Party Plaintiff and Defendant-Appellee and Cross-Appellant; Schneider, Inc., Third-Party Defendant and Cross-Appellee; Dow Industrial Service, et al., Third-Party Defendants Appellees).
• Court: United States Appellate Court of Illinois

Page 1352

497 N.E.2d 1352

147 Ill.App.3d 534, 101 Ill.Dec. 39

Paul THATCHER, Plaintiff-Appellant Cross-Appellee, v. COMMONWEALTH EDISON COMPANY, Defendant and Third-Party Plaintiff-Appellant and Cross-Appellee (Dow Chemical Company, Third-Party Plaintiff and Defendant-Appellee and Cross-Appellant Schneider, Inc., Third-Party Defendant and Cross-Appellee Dow Industrial Service, et al., Third-Party Defendants Appellees).

Nos. 3-85-0542, 3-85-0581.

Appellate Court of Illinois Third District.

Sept. 24, 1986.

As Modified Sept. 30, 1986.

David J. Dubicki, Kavanaugh, Scully, Sudow, White & Frederick, P.C., Peoria, for Commonwealth Edison Co.

Bradley W. Dunham, McConnell, Kennedy, Quinn & Johnston, Peoria, for Dow Chemical Co., Dow Indus. Service and Dowell.

David J. Dubicki, Kavanaugh, Scully, Sudow, White & Frederick, P.C., Peoria, for Schneider, Inc.

Arthur R. Kingery, Strodel, Kingery & Durree, Assoc., Peoria, for Paul Thatcher.

Justice HEIPLE delivered the Opinion of the Court:

Paul M. Thatcher, Sr., is a 42-year-old boilermaker. On January 29, 1981, he was employed by Schneider, Inc. to fulfill a contract that Schneider had with Commonwealth Edison (ComEd). ComEd is the owner of the Powerton Plant in Pekin, Illinois. ComEd had previously employed Dow Industrial Service, a division of Dow Chemical Company (Dow), to clean out condenser tubes at Powerton. This was to be accomplished by high pressure water jetting equipment manufactured by Dowell, another division of Dow Chemical. Dow's contract with ComEd provided that Dow personnel would operate its own equipment. However, due to local union contracts, ComEd felt obligated to bring in local boilermakers instead of allowing Dow employees to operate the equipment according to their contract. That is why ComEd brought in Schneider, a local labor broker. As matters ended up, the only personnel employed by Dow were operators for the truck which powered the water jetting equipment and one supervisor for each shift.

The condenser tubes were about 7/8 inch in diameter and 70 feet long. There were about 28,000 such tubes at Powerton. The tubes were in a honeycomb-like arrangement.

To get to these tubes, the boilermakers had to go through a small manhole to a large water box. They would then stand on a scaffold of a sort to reach the higher tubes. The nature of this scaffold is much in dispute and will be discussed below. The scaffold was built by the boilermakers.

At the beginning of the job, only two men worked inside the water box. On the evening in question, the decision was made to go to three men in the box. It appears that this decision was made by ComEd which desired to speed up the job since it had to shut down the production of electricity where cleaning was going on.

The equipment in the water box consisted of large, flexible hoses which could be inserted into the tubes. These were activated by the use of foot pedals which were placed on the scaffold. The pressure generated by the water was around 5,000 pounds per square inch. The workers were required to wear full rain gear, hard hats and face shields. All this water splashing about caused the scaffold to be wet and slimy.

At about 9 p.m. on the evening in question, plaintiff was working with two other men on a scaffold. The co-workers testified that the first thing unusual they heard was plaintiff screaming. Plaintiff testified that the scaffold had rocked, causing him to slip, and that he had inadvertently activated the pedal. The water shot into the glove on his left hand and punctured both the glove and his hand. Plaintiff was immediately transported to the emergency room of Pekin Memorial Hospital.

Plaintiff sued ComEd and Dow, charging both with negligence and violation of the Structural Work Act (Ill.Rev.Stat.1985, ch. 48, pars. 60-69). ComEd and Dow counterclaimed against each other for indemnity and contribution. Dow filed a third-party complaint against Schneider.

Sometime before trial, the court held that implied indemnity no longer existed in Illinois. Accordingly, a number of counterclaims were dismissed. Immediately before trial, plaintiff entered into a settlement with ComEd and Schneider. ComEd agreed to pay $130,000 in cash to plaintiff. This was apportioned at $80,000 for ComEd and $50,000 for Schneider. Schneider also agreed to waive a workers' compensation lien in the amount of $104,798.81. However, it appears that ComEd furnished all the consideration for the settlement. It had previously contracted to insure all of Schneider's workers' compensation liability. It had apparently paid the compensation to plaintiff over the years. One attorney represented both ComEd and Schneider throughout.

ComEd and Schneider then moved for dismissal of all contribution counts against them. Pursuant to sections 2(c) of the Contribution Act (Ill.Rev.Stat.1985, ch. 70, par. 302(c), the court determined that the settlement was in good faith. Accordingly, it dismissed all contribution claims against Dow. Also, in accordance with section 2(d) of the same act, which provides that a settling tortfeasor is discharged from liability to other tortfeasors, all contribution claims against ComEd and Schneider were dismissed. Section 2(e) of the same act further provides that a tortfeasor who settles with a claimant forfeits any right of contribution from any other tortfeasor who was not a party to the settlement.

Plaintiff and Dow went to trial. The jury returned a verdict of $70,000 for plaintiff on the negligence count, reflecting damages of $140,000 and 50% comparative negligence. The jury found for Dow on the Structural Work Act count. Plaintiff appeals from the jury verdict. ComEd appeals from the dismissal of its implied indemnity counts against Dow. Dow has filed a provisional cross-appeal in the event we rule for plaintiff or ComEd.

I. IMPLIED INDEMNITY

The doctrine of implied indemnity holds that among joint tortfeasors, where one party is actively at fault and the other is passively at fault, the latter may seek indemnity from the former if there is some form of pretort relationship which would give rise to a duty to indemnify. (Van Jacobs v. Parikh (1981), 97 Ill.App.3d 610, 52 Ill.Dec. 770, 422 N.E.2d 979.) Implied indemnity was developed at a time when Illinois did not allow contribution among joint tortfeasors. Hence, if a slightly liable defendant was pursued by plaintiff, that defendant was allowed to pass all of its liability on to a more liable defendant under the appropriate circumstances.

In Skinner v. Reed-Prentice Division of Package Machinery Co. (1977), 70 Ill.2d 1, 15 Ill.Dec. 829, 374 N.E.2d 437, our Supreme

Court did away with the no contribution among joint tortfeasors rule. Subsequently, the legislature enacted the Contribution Act (Ill.Rev.Stat.1985, ch. 70, par. 301 et seq.). In recent years, panels of the appellate court were split wide open on the question of whether implied indemnity survived the passage of the Contribution Act. In fact, the Fifth District Appellate Court was divided among its own panels on this issue. See Holmes v. Sahara Coal Company (1985), 131 Ill.App.3d 666, 86 Ill.Dec. 816, 475 N.E.2d 1383, and Allison v. Shell Oil Co. (1985), 133 Ill.App.3d 607, 88 Ill.Dec. 720, 479 N.E.2d 333.

The Supreme Court resolved the issue recently by stating that since Illinois adopted the principles of comparative negligence and apportioning in its case law and by the Contribution Act, " * * * the need for implied indemnity based upon an active-passive distinction has also evaporated." (Allison v. Shell Oil Co. (1986), 113 Ill.2d 26, 34, 99 Ill.Dec. 115, 120, 495 N.E.2d 496, 501.) Although it reserved judgment on the viability of implied indemnity in cases involving different circumstances, the Court made it clear that the full cost of tortious conduct can no longer be transferred from one tortfeasor to another on the basis of active/passive indemnity.

Logic clearly mandated the result in Allison, namely, that the elimination of the ban against contribution among joint tortfeasors rendered the doctrine of implied indemnity vestigial. Also, that the Contribution Act was passed in order to facilitate full and fair settlements according to the relative fault of the parties. (Rakowski v. Lucente (1984), 104 Ill.2d 317, 84 Ill.Dec. 654, 472 N.E.2d 791.) We also concur with the thorough analysis provided by Justice Lorenz in the remand of the Heinrich case (Heinrich v. Peabody Industrial Corp. (1985), 139 Ill.App.3d 289, 93 Ill.Dec. 544, 486 N.E.2d 1379). To those authorities we would add but the following comments. The gist of Skinner and its progeny, particularly Alvis v. Ribar (1981), 85 Ill.2d 1, 52 Ill.Dec. 23, 421 N.E.2d 886, and Coney v. J.L.G. Industries (1983), 97 Ill.2d 104, 73 Ill.Dec. 337, 454 N.E.2d 197, is that parties to a lawsuit should pay damages according to their percentage of fault or should lose the right to recover for that percentage of the damages caused by their own fault. In Alvis, the court expressly rejected other formulations of comparative fault and opted for "pure" comparative fault. Although pure comparative fault is not universal in Illinois tort law due to preexisting statutory constraints (Prewein v. Caterpillar Tractor Co. (1985), 108 Ill.2d 141, 90 Ill.Dec. 906, 483 N.E.2d 224), it is certainly pure in the negligence context of this case. Implied indemnity is really nothing more than a variation of the modified comparative fault used in Wisconsin and some other states. The Wisconsin rule states that where a party is more than 50% at fault in causing an accident, it cannot be said that the other party's fault was the proximate cause of the injury. (Schwartz, Comparative Negligence (1974), sec. 3.5.) In effect, by allowing a slightly liable defendant to pass on its liability to a more liable defendant, one is essentially ignoring the slightly liable party's breaches of duty. That was not what the Skinner or Alvis cour...