{ "id": 5550759, "name": "PAUL THATCHER et al., Appellees, v. COMMONWEALTH EDISON COMPANY et al., Appellants", "name_abbreviation": "Thatcher v. Commonwealth Edison Co.", "decision_date": "1988-07-20", "docket_number": "No. 64309", "first_page": "275", "last_page": "281", "citations": [ { "type": "official", "cite": "123 Ill. 2d 275" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "113 Ill. 2d 26", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3173026 ], "weight": 4, "pin_cites": [ { "page": "35" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/113/0026-01" ] }, { "cite": "123 Ill. 2d 245", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5551099 ], "weight": 3, "pin_cites": [ { "page": "262" }, { "page": "253-56" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/123/0245-01" ] }, { "cite": "107 Ill. 2d 315", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "147 Ill. App. 3d 534", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3605220 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/147/0534-01" ] }, { "cite": "70 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5805433 ], "opinion_index": 0, "case_paths": [ "/ill-2d/70/0001-01" ] }, { "cite": "125 Ill. App. 3d 124", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3632992 ], "pin_cites": [ { "page": "131" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/125/0124-01" ] }, { "cite": "123 Ill. 2d 245", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5551099 ], "weight": 2, "pin_cites": [ { "page": "279" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/123/0245-01" ] } ], "analysis": { "cardinality": 497, "char_count": 10332, "ocr_confidence": 0.798, "pagerank": { "raw": 1.6272614296937257e-07, "percentile": 0.6883073105806555 }, "sha256": "50d169b51f74bc18c1eeca9001c98711def79d84655e5d24ddd17cf93196768d", "simhash": "1:7af20b0e24063ca0", "word_count": 1705 }, "last_updated": "2023-07-14T18:54:47.075041+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "PAUL THATCHER et al., Appellees, v. COMMONWEALTH EDISON COMPANY et al., Appellants." ], "opinions": [ { "text": "JUSTICE WARD\ndelivered the opinion of the court:\nThe plaintiff, Paul Thatcher, brought an action in the circuit court of Tazewell County against the defendants, Commonwealth Edison Company (Com Ed) and Dow Chemical Company (Dow), to recover for personal injuries he sustained at a plant of Com Ed while working with a high-pressure water hose designed and manufactured by Dow. Com Ed filed a third-party action against Dow seeking contribution under an \u201cAn Act in relation to contribution among joint tortfeasors\u201d (Ill. Rev. Stat. 1979, ch. 70, par. 301 et seq.) and indemnity under the common law doctrine of implied indemnity. The third-party complaint asserted, inter alia, a strict products liability theory of recovery. Com Ed entered into a settlement with the plaintiff and the trial court dismissed Com Ed\u2019s contribution claim against Dow pursuant to section 2(e) of the Contribution Act (Ill. Rev. Stat. 1979, ch. 70, par. 302(e)). The trial court also dismissed Com Ed\u2019s indemnity claim, stating that with the adoption of contribution among joint tortfeasors (see Ill. Rev. Stat. 1979, ch. 70, par. 302 et seq.) Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1), actions for implied indemnity were abolished. The appellate court, with one justice dissenting, affirmed. (147 Ill. App. 3d 534.) We granted Com Ed\u2019s petition for leave to appeal under our Rule 315.107 Ill. 2d R. 315.\nOn January 29, 1981, the plaintiff, Paul Thatcher, was employed by Schnider, Inc., as a boilermaker. Under a contract between Com Ed and Schnider, the plaintiff was sent to Com Ed\u2019s power plant to clean condenser tubes. Normally Dow\u2019s employees performed this work, but because of a jurisdictional union dispute, the actual cleaning work was being performed by the boilermaker\u2019s union, of which the plaintiff was a member. To clean the tubes, the plaintiff was required to stand on a scaffold and insert a large hose, which, as stated, was designed and manufactured by Dow, into the mouth of the tube. When the operator of the equipment would activate a foot pedal, which was placed on the scaffold, the hose under high pressure would propel a stream of water into the tube. The plaintiff was injured when the scaffold he was standing on \u201cwobbled and rocked,\u201d he said, causing him, without his intending to do so, to activate the foot pedal. The stream of water from the hose struck his hand, causing injuries.\nThe plaintiff filed a four-count complaint in the circuit court of Tazewell County against Com Ed and Dow. Counts I and III set out a cause of action against Com Ed and Dow under the Structural Work Act (Ill. Rev. Stat. 1979, ch. 48, pars. 60 through 69); count II alleged Com Ed was negligent in providing the plaintiff with equipment without sufficient safety devices; and count IV charged Dow with negligence in the design and manufacturing of the hose.\nCom Ed filed an action against Dow seeking contribution under the Contribution Act (Ill. Rev. Stat. 1979, ch. 70, par. 301 et seq.) and indemnity predicated on the common law doctrine of implied indemnity. The third-party complaint pleaded products liability as the ground for recovery, stating that the hose the plaintiff was using had been manufactured by Dow and was in an unreasonably dangerous condition at the time it left Dow\u2019s control.\nBefore trial, the plaintiff entered into a settlement agreement with Com Ed and Schnider. The trial court found that the settlement was in \u201cgood faith\u201d under section 2(c) of the Contribution Act (Ill. Rev. Stat. 1979, ch. 70, par. 302(c)) and dismissed Com Ed\u2019s counts for contribution against Dow in accordance with sections 2(d) and (e) of the Contribution Act (Ill. Rev. Stat. 1979, ch. 70, pars. 302(d), (e)).\nSection 2(d) of the Act provides:\n\u201cThe tortfeasor who settles with a claimant pursuant to paragraph (c) is discharged from all liability for any contribution to any other tortfeasor.\u201d (Ill. Rev. Stat. 1979, ch. 70, par. 302(d).)\nSection 2(e) provides:\n\u201cA tortfeasor who settles with a claimant pursuant to paragraph (c) is not entitled to recover contribution from another tortfeasor whose liability is not extinguished by the settlement.\u201d (Ill. Rev. Stat. 1979, ch. 70, par. 302(e).)\nThe trial court also dismissed Com Ed\u2019s claim for indemnity against Dow, holding that all implied indemnity actions were abolished by the Contribution Act.\nCom Ed appealed the dismissal of its indemnity claim against Dow, and the appellate court affirmed, with one justice dissenting. The court stated that \u201cthe Contribution Act did away with implied indemnity among joint tort feasors and substituted contribution in its place.\u201d (147 Ill. App. 3d 534.) We granted Com Ed\u2019s petition for leave to appeal under our Rule 315.107 Ill. 2d 315.\nIn Frazer v. A. F. Munsterman, Inc. (1988), 123 Ill. 2d 245, this court held that a claim for implied indemnity based on an underlying action \u201cregarding a defective product\u201d (Allison v. Shell Oil Co. (1986), 113 Ill. 2d 26) cannot be maintained where the one seeking indemnity was negligent or otherwise at fault in causing the loss.\nWe cited this court\u2019s decision in Allison v. Shell Oil Co. (1986), 113 Ill. 2d 26, 31:\n\u201c \u2018[Governing principle^] in this jurisdiction [dictate] that the costs of accidental injury are to be apportioned in accordance with the relative fault of all concerned in the action.\u2019 \u201d Frazer v. A. F. Munsterman, Inc. (1988), 123 Ill. 2d 245, 262.\nThe situation here does differ from Frazer in that there the third-party plaintiff had been found to be negligent. Com Ed was not held to have been negligent, but under the circumstances of this case Com Ed should be considered as a party to be denied indemnity under Frazer as a tortfeasor subject to the principle of comparative fault. Here Com Ed was sued for negligence and for violating the Structural Work Act. Under either theory of recovery, it was claimed to have been at fault. Liability under the Structural Work Act does not contemplate strict liability. {Allison v. Shell Oil Co. (1986), 113 Ill. 2d 26, 35.) If it were shown that Com Ed\u2019s negligence or violation of the provisions of the Structural Work Act was a causative factor in the plaintiff\u2019s injuries, Com Ed would, under Frazer, be barred from implied indemnity. To avoid trial and, it must be considered, a holding that it was liable, Com Ed made a substantial settlement with the plaintiff. (Under the terms of the settlement, the plaintiff was to be paid $130,000. Com Ed was to pay $80,000 and the plaintiff\u2019s employer $50,000. In addition, the employer agreed to waive a workers\u2019 compensation lien of $104,798. Both Com Ed and the employer were represented by the same attorney and, as the appellate court noted, \u201cit appears that Com Ed furnished all the consideration for the settlement.\u201d)\nIt should be noted that the trial and appellate courts here spoke too broadly when they declared that implied indemnity had been abolished by the Contribution Act. See Allison v. Shell Oil Co. (1986), 113 Ill. 2d 26; Frazer v. A. F. Munsterman, Inc. (1988), 123 Ill. 2d 245, 253-56 (for questions not finally determined).\nFor the reasons stated, the judgment of the appellate court is affirmed.\nAffirmed.\nJUSTICE STAMOS took no part in the consideration or decision of this case.", "type": "majority", "author": "JUSTICE WARD" }, { "text": "JUSTICE MILLER,\ndissenting:\nI do not agree with the majority that Commonwealth Edison Company\u2019s settlement of the plaintiff\u2019s action against it should now bar Edison from bringing an action against Dow Chemical Company for implied indemnity. The majority presumes that the settlement has established Edison\u2019s liability to the plaintiff on the grounds asserted in the plaintiff\u2019s complaint, grounds that would preclude an action by Edison for implied indemnity. The majority therefore concludes that Edison is \u201ca tortfeasor subject to the principle of comparative fault\u201d (123 Ill. 2d at 279) and hence a party for whom the implied indemnity doctrine must remain unavailable. I cannot accept the first step in the majority\u2019s analysis, and for that reason I dissent.\nThe plaintiff sued both Edison and Dow for common law negligence and for violations of the Structural Work Act (Ill. Rev. Stat. 1981, ch. 48, pars. 60 through 69); Edison in turn sought indemnity from Dow as the \u201cupstream\u201d manufacturer or distributor of a defective product. Had the plaintiff proved Edison\u2019s liability upon either theory in his complaint, Edison would now be barred, under our holding in Frazer v. A. F. Munster-man, Inc. (1988), 123 Ill. 2d 245, from bringing an action against Dow for implied indemnity. Edison chose to settle the plaintiff\u2019s action, however, and I do not agree with the majority that the mere settlement of those claims is equivalent to a finding or verdict sustaining their validity.\nUnder the majority\u2019s reasoning, the unproved allegations in the plaintiff\u2019s complaint against Edison control the outcome here, denying Edison its third-party action for implied indemnity. In effect, the majority treats the bare settlement of the plaintiff\u2019s claims as an admission of negligence by Edison. This cannot be reconciled with the customary view regarding the effects of settlements and offers to settle. (See Pientka v. Board of Fire Commissioners (1984), 125 Ill. App. 3d 124, 131.) In the absence of an admission or other acknowledgment of fault by Edison, I cannot agree that the settlement of the disputed claims must bar Edison from bringing an action for implied indemnity against Dow. Edison\u2019s culpability, if any, has not yet been determined, and whether Edison was negligent or otherwise guilty of conduct that would preclude an action for implied indemnity is an issue that should be decided in Edison\u2019s third-party action.\nFor those reasons, I do not believe that Edison\u2019s mere agreement to settle the plaintiff\u2019s action should have the effect claimed for it by the majority. Accordingly, I dissent.", "type": "dissent", "author": "JUSTICE MILLER," } ], "attorneys": [ "David J. Dubicki and Brian D. Mooty, of Peoria (Kavanagh, Scully, Sudow, White & Frederick, P.C., of counsel), for appellant Commonwealth Edison Company.", "Bradley W. Dunham, of Quinn, Johnston, Henderson & Pretorius, of Peoria, for Dow Chemical Company et al." ], "corrections": "", "head_matter": "(No. 64309.\nPAUL THATCHER et al., Appellees, v. COMMONWEALTH EDISON COMPANY et al., Appellants.\nOpinion filed July 20, 1988.\nSTAMOS, J., took no part.\nMILLER, J., dissenting.\nDavid J. Dubicki and Brian D. Mooty, of Peoria (Kavanagh, Scully, Sudow, White & Frederick, P.C., of counsel), for appellant Commonwealth Edison Company.\nBradley W. Dunham, of Quinn, Johnston, Henderson & Pretorius, of Peoria, for Dow Chemical Company et al." }, "file_name": "0275-01", "first_page_order": 285, "last_page_order": 291 }