Village of Rosemont v. Lentin Lumber Co.

Decision Date20 May 1986
Docket NumberNos. 84-2159,84-2769,84-3028 and 84-1146,s. 84-2159
Citation98 Ill.Dec. 470,144 Ill.App.3d 651,494 N.E.2d 592
Parties, 98 Ill.Dec. 470 VILLAGE OF ROSEMONT, a municipal corporation, Plaintiff-Appellant, v. LENTIN LUMBER COMPANY, a general partnership; CST Construction Company, a corporation; Enterprise Engineering Corporation; Heritage Insurance Company of America, a corporation; and National Bonding and Accident Insurance Company, a corporation, Defendants-Appellees. VILLAGE OF ROSEMONT, a municipal corporation, Plaintiff-Appellant, v. LENTIN LUMBER COMPANY, a general partnership; CST Construction Company, a corporation; and Enterprise Engineering Corporation, Defendants-Appellees. VILLAGE OF ROSEMONT, a municipal corporation, Plaintiff-Appellant, v. WEYERHAEUSER COMPANY, Defendant-Appellee.
CourtUnited States Appellate Court of Illinois

Ancel, Glink, Diamond, Murphy & Cope, P.C., Chicago (Peter M. Rosenthal, of counsel), for plaintiff-appellant.

Pretzel & Stouffer, Chartered (Joseph B. Lederleitner, Samuel B. Isaacson, of counsel), McNeela & Griffin, Ltd., Friedman & Koven, Baker & McKenzie (Francis D. Morrissey, John T. Coleman, Gary W. Fresen, Corinne A. Seither, of counsel), McDermott Will & Emery (Gary L. Prior, Stephen P. Krchman, of counsel), Hinshaw, Culbertson, Moelmann, Hoban & Fuller (D. Kendall Griffith, Charles H. Cole, H. Anne HcKee, Joshua G. Vincent, of counsel), Chicago, for defendants-appellees.

Justice STAMOS delivered the opinion of the court:

Four appeals here consolidated for hearing arise from three lawsuits involving the collapse of a portion of the roof of the Rosemont Horizon Arena during the course of its construction. The plaintiff Village of Rosemont, owner of the Arena, sought recovery in tort from the contractor, Lentin Lumber Company, from a subcontractor, CST Construction Company, and from a subcontractor for the drawings of the roof, Enterprise Engineering Corporation. The Village also sued Lentin for breach of contract and sued Heritage Insurance Company of America and National Bonding and Accident Insurance Company, the sureties for Lentin and CST, for a breach of performance bond. Case number 84-2159 is an appeal from summary judgment and other rulings entered in favor of Lentin, CST, and Enterprise. Case number 84-3028 is an appeal from the subsequent entry of summary judgment for the two sureties. In another complaint, the Village alleged products liability and breach of warranty against the Weyerhaeuser Company, the manufacturer of the roofing beams. Case number 85-1146 is an appeal from summary judgment of the trial court in favor of Weyerhaeuser. In a third lawsuit the Village sued Lentin, CST and Enterprise under theories of products liability and warranty, and alleged defendants' conduct was wilful and wanton. Case Number 84-2769 appeals from the trial court's dismissal of the complaint with prejudice.

On August 21, 1978, plaintiff entered into a construction contract with Lentin on the standard form of agreement provided by the American Institute of Architects. Lentin was to provide for the design, fabrication and erection of the roof structure of the Rosemont Horizon Arena. Lentin was the local distributor for Weyerhaeuser Company, which manufactured and supplied the roofing beams for the project. Lentin hired CST as a sub-contractor to erect the roof structure and hired Enterprise as a subcontractor to prepare laminated wood roof framing shop drawings. Design responsibility for these drawings was on the Village's architect or engineer, who each approved the drawings. Lentin secured the performance of its contract with plaintiff by a performance bond which was executed by Lentin as principal and Heritage as surety, and which named plaintiff as obligee. CST and National also executed a performance bond naming Lentin and plaintiff as obligees.

Subparagraph 11.3.1 of Lentin's contract with plaintiff required plaintiff to "purchase and maintain property insurance upon the entire work at the site to the full insurable value thereof." The insurance was to include the interests of plaintiff, Lentin, and all sub and sub-sub contractors in the work. The policy purchased was to insure against fire and extended coverage and was to include all-risk insurance for physical loss or damage. Subparagraph 11.3.6 of the contract provided that "the Owner and Contractor waive all rights against (1) each other and the Subcontractors * * * for damages caused by fire or other perils to the extent covered by insurance obtained pursuant to this Paragraph 11.3 or any other property insurance applicable to the Work * * *."

Plaintiff purchased a special multi-peril or builders' risk policy covering building property on the project to $6 million. On August 13, 1979, the roof of the Arena collapsed while the Arena was still under construction. Plaintiff recovered $1.5 million from the multi-peril policy and sued Lentin, CST and Enterprise for an additional $5 million.

Lentin filed a motion for summary judgment contending that under the terms of the contract, plaintiff had waived its claims for physical damage to the work and had agreed to shift the risk of loss to insurance it had agreed to procure. CST joined in and adopted Lentin's motion. Enterprise also filed a motion for summary judgment asserting the same waiver that had been raised by Lentin. Enterprise also argued that plaintiff could not recover economic damages in tort and that Enterprise's acts or ommissions were not the cause of the collapse of the roof. Plaintiff responded to the motions and submitted an affidavit which demonstrated that its recovery under the insurance policy purchased did not cover damages caused by the roof's collapse.

The trial court entered an order on January 12, 1984, granting summary judgment in favor of Lentin and Enterprise, finding that pursuant to subparagraphs 11.3.1 and 11.3.6 of the Lentin/plaintiff contract, plaintiff had waived all claims for physical loss or damage to the work and that those provisions were unambiguous. The court set the matter for a status and hearing as to what claims, if any, remained against defendants. On June 19, 1984, the court entered summary judgment in favor of Lentin, Enterprise and CST, found that the judgment disposed of all claims alleged against defendants and denied plaintiff's motion to reconsider its earlier order. On August 2, 1984, the court made the summary judgment order final and appealable and denied plaintiff's motion for leave to file an amended complaint adding claims against Lentin for breach of warranty and strict liability in tort, and against both Lentin and CST for wilful and wanton conduct. Eleven days later, the court dismissed with prejudice on grounds of res judicata a complaint plaintiff filed which was identical to the amended complaint the court had previously denied plaintiff leave to file.

National then moved for summary judgment asserting that its liability was co-existent with that of CST, its principal, and that it was entitled to summary judgment because CST's motion for summary judgment had been granted. Heritage later joined this motion on behalf of its principal, Lentin. The court entered an order granting the motion.

Subsequently, the trial court entered an order granting summary judgment in favor of Weyerhaeuser Company, whose roofing beams plaintiff had alleged were unmerchantable, defective and unreasonably dangerous. Weyerhaeuser maintained in its motion that Article 20 of its August 21, 1978 American Institute of Architects standard form construction contract with plaintiff was similar to the provisions found in the contract between plaintiff and Lentin. Paragraph 20.1 provided that plaintiff was to "purchase and maintain property insurance upon the entire Work at the site to the full insurable value thereof." The insurance was to include the interests of Weyerhaeuser and was to insure against the perils of "Fire, Extended Coverage, Vandalism and Malicious Mischief." Paragraph 20.4 stated that plaintiff and Weyerhaeuser "waive all rights against each other for damages caused by fire or other perils to the extent covered by insurance provided under this paragraph." In granting summary judgment, the court expressly found that there was no material issue of fact concerning Article 20, that the contract was not ambiguous, and that plaintiff had waived all of its claims against Weyerhaeuser.

Plaintiff first contends that the trial court erred in determining that in its contracts the Village, waived all claims other than mechanics' liens, against Lentin, CST, Enterprise and Weyerhaeuser. Plaintiff asserts that defendants failed to establish they were entitled to summary judgment as a matter of law, that the trial court failed to construe the contracts as a whole and that no factual or legal authority supports finding that the waiver provisions of the Lentin contract subparagraph 11.3.6 and the Weyerhaeuser contract paragraph 20.4 are unlimited.

Summary judgment is properly granted where the pleadings and other evidence raise no triable issue of material fact and where movant is entitled to judgment as a matter of law. (Aspegren v. Howmedica, Inc. (1984), 129 Ill.App.3d 402, 404, 84 Ill.Dec. 685, 472 N.E.2d 822.) Summary judgment is an appropriate procedure in construing the legal principles of a contract. (Ervin v. Sears, Roebuck & Co. (1984), 127 Ill.App.3d 982, 990, 82 Ill.Dec. 709, 469 N.E.2d 243.) Contracts must be interpreted as a whole, and it is presumed that all provisions were inserted for a purpose. (Bruno Benedetti & Sons, Inc. v. O'Malley (1984), 124 Ill.App.3d 500, 506, 79 Ill.Dec. 694, 464 N.E.2d 292.) A court has a duty to harmonize the provisions of a contract (In re Support of Halas (1984), 104 Ill.2d 83, 92, 83 Ill.Dec. 540, 470 N.E.2d 960) and to avoid construction which renders some provisions meaningless. (Lukasik v. Riddell, Inc. (1983), 116...

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