{ "id": 5099683, "name": "ALFREDO GARCIA, Adm'r of the Estate of Victoria Garcia, Deceased, Plaintiff-Appellee, v. EDGEWATER HOSPITAL, Defendant-Appellant and Third-Party Plaintiff-Appellant (Shiley, Inc., Third-Party Defendant-Appellee)", "name_abbreviation": "Garcia v. Edgewater Hospital", "decision_date": "1993-03-26", "docket_number": "No. 1\u201490\u20143663", "first_page": "894", "last_page": "907", "citations": [ { "type": "official", "cite": "244 Ill. App. 3d 894" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "463 N.E.2d 913", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "123 Ill. App. 3d 947", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 5204685 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/231/0597-01" ] }, { "cite": "965 F.2d 137", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10520933 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/f2d/965/0137-01" ] }, { "cite": "415 N.E.2d 1255", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "92 Ill. App. 3d 739", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5535917 ], "pin_cites": [ { "page": "742" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/92/0739-01" ] }, { "cite": "490 N.E.2d 257", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "141 Ill. App. 3d 499", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3495784 ], "year": 1980, "pin_cites": [ { "page": "501" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/141/0499-01" ] }, { "cite": "123 N.E.2d 792", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "796" } ], "opinion_index": 0 }, { "cite": "308 N.Y. 100", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2236448 ], "weight": 3, "pin_cites": [ { "page": "104" } ], "opinion_index": 0, "case_paths": [ "/ny/308/0100-01" ] }, { "cite": "349 N.E.2d 541", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "39 Ill. App. 3d 223", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5379458 ], "pin_cites": [ { "page": "226" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/39/0223-01" ] }, { "cite": "266 N.E.2d 897", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "47 Ill. 2d 443", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2905150 ], "weight": 3, "pin_cites": [ { "page": "451" }, { "page": "450" }, { "page": "450" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0443-01" ] } ], "analysis": { "cardinality": 1197, "char_count": 30605, "ocr_confidence": 0.773, "pagerank": { "raw": 1.0998999407244265e-07, "percentile": 0.5680665166193087 }, "sha256": "36994e852bf9b763a8071e4af252e0b23984b1e2984bdcd59616b79ed91c8f60", "simhash": "1:3ffa5130b5c6b7df", "word_count": 4832 }, "last_updated": "2023-07-14T19:27:37.423199+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ALFREDO GARCIA, Adm\u2019r of the Estate of Victoria Garcia, Deceased, Plaintiff-Appellee, v. EDGEWATER HOSPITAL, Defendant-Appellant and Third-Party Plaintiff-Appellant (Shiley, Inc., Third-Party Defendant-Appellee)." ], "opinions": [ { "text": "JUSTICE COUSINS\ndelivered the opinion of the court:\nDefendant, Edgewater Hospital (Edgewater), appeals an $845,000 jury verdict rendered against it in a wrongful death action brought by plaintiff, Alfredo Garcia (plaintiff), as administrator of the estate of his deceased wife, Victoria Garcia (Mrs. Garcia).\nWhile at Edgewater, Mrs. Garcia died after surgery performed by Dr. Jafar Shah-Mirany (Dr. Shah-Mirany). At trial, plaintiff\u2019s sole theory against Edgewater was that Edgewater was liable for breach of implied warranty of merchantability under the Illinois Uniform Commercial Code (Commercial Code or Code) (Ill. Rev. Stat. 1983, ch. 26, par. 1 \u2014 101 et seq.). The basis for plaintiff\u2019s implied warranty claim was a defective prosthetic heart valve, manufactured by Shiley, Inc., which lengthened the time necessary to perform Mrs. Garcia\u2019s heart surgery because the defective valve had to be replaced by a second valve. As a result, Mrs. Garcia died from blood loss when, due to their religious beliefs, the Garcias refused to permit a blood transfusion.\nThe jury returned a verdict in plaintiff\u2019s favor in the amount of $845,000 which was later reduced to $645,000 to reflect a prior $200,000 settlement between plaintiff and the manufacturer, third-party defendant Shiley, Inc. The jury found against plaintiff and in favor of codefendant Dr. Shah-Mirany, on allegations of medical malpractice for unnecessary and negligent performance of the surgical procedure.\nEdgewater\u2019s third-party complaint against Shiley seeking indemnity based on breach of warranty allegations was dismissed prior to trial.\nThe issues presented for review are: (1) whether the trial court erred in ruling that Edgewater\u2019s liability could be premised on breach of an implied warranty of merchantability under the Illinois Commercial Code, (2) whether the trial court erred in ruling that section 2\u2014 621 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 \u2014 621) did not apply to actions premised on breach of implied warranty of merchantability, (3) whether plaintiff\u2019s claim was barred by the \u201cRefusal To Permit Blood Transfusion\u201d signed by Mrs. Garcia and the \u201cSpecial Consent And Release\u201d signed by Mr. and Mrs. Garcia, and (4) whether the trial court erred in ruling that the hospital\u2019s third-party complaint for indemnity against the manufacturer was barred by the manufacturer\u2019s previous settlement with plaintiff pursuant to the Contribution Act (Ill. Rev. Stat. 1983, ch. 70, par. 301 et seq.).\nReversed and remanded with directions.\nBackground\nMrs. Garcia had a history of heart problems. On July 19, 1982, Mrs. Garcia was admitted to Edgewater Hospital for mitral valve replacement surgery which was to occur on July 21, 1982. The mitral valve connects the heart\u2019s atrial and ventricular chambers and allows blood to properly flow between the two chambers, thereby providing normal heart function. During this surgical procedure, the diseased mitral valve would be removed and replaced with an artificial valve prosthesis so that it would perform the same heart function.\nBecause Mr. and Mrs. Garcia were of the Jehovah\u2019s Witness religion, Mrs. Garcia agreed to have surgery subject to the condition that there would be no transfusion of blood or blood derivatives, no matter what unforeseen or untoward event occurred. Consequently, on July 20, 1982, the day before the mitral valve replacement surgery, Mrs. Garcia executed two releases.\nThe \u201cRefusal To Permit Blood Transfusion\u201d signed by Mrs. Garcia provided, in pertinent part, that Mrs. Garcia released\n\u201cthe attending physician, his assistants, the hospital and its personnel from any responsibility whatever for any untoward results due to my refusal to permit the use of blood or its derivatives.\u201d\nThe \u201cSpecial Consent And Release\u201d which was signed by Mr. and Mrs. Garcia read, in pertinent part, as follows:\n\u201c[U]nforeseen conditions may be revealed that would medically necessitate a transfusion of human blood or blood derivatives ***. In the event of my death as a result of not administering blood, we hereby absolve Dr. J. Shah-Mirany, his assistants, his designees, and Edgewater Hospital of Chicago and its agents from liability.\u201d\nDr. Shah-Mirany performed the surgery on July 21, 1982. He placed Mrs. Garcia on a cardiopulmonary bypass machine at 9:36 a.m., opened the heart, and removed the diseased valve. Dr. Shah-Mirany then attached a Shiley prosthetic valve to tissues in Mrs. Garcia\u2019s heart, closed the heart, and took steps to close the chest incision.\nMrs. Garcia was then put on partial bypass, her heart was restarted and rewarmed. However, her heart was not functioning properly and Dr. Shah-Mirany took steps to understand and correct the nature of the malfunction. Dr. Shah-Mirany reopened Mrs. Garcia\u2019s heart and found that part of the Shiley valve was floating in the heart\u2019s chamber. Dr. Shah-Mirany removed the defective Shiley valve and replaced it with another Shiley valve. Mrs. Garcia was still on the cardiopulmonary bypass machine. Dr. Shah-Mirany closed Mrs. Garcia\u2019s heart and chest. Surgery ended at 3:10 p.m., and Mrs. Garcia was transferred to the recovery room with her heart functioning satisfactorily.\nMrs. Garcia remained on the cardiopulmonary bypass machine for 3 hours and 49 minutes, which was longer than originally anticipated. Because of the extended time on the bypass machine, Mrs. Garcia developed coagulopathy, a clotting disorder which occurs when the blood will not clot. Mrs. Garcia lost all of her blood, became anemic, and died several hours after her surgery.\nEdgewater contends that because Mrs. Garcia was on the cardiopulmonary bypass machine longer than anticipated, she lost more platelets than normal. Dr. Shah-Mirany stated that he repeatedly asked Mr. Garcia to consent to a blood transfusion, but Mr. Garcia repeatedly refused. Dr. Shah-Mirany contends that if Mrs. Garcia had been given blood, she probably would have recovered.\nPlaintiff contends that because Mrs. Garcia was on the cardiopulmonary bypass machine too long, the coagulopathy which existed in Mrs. Garcia was irreversible, and a transfusion of platelets would not have reversed the coagulopathy or saved Mrs. Garcia\u2019s life.\nHowever, one of plaintiff\u2019s witnesses, on cross-examination, admitted that the only chance of stopping coagulopathy is to give blood or blood products. This witness also testified that if Mrs. Garcia had received blood or blood products early enough during the bypass, she would have had a chance of surviving.\nPlaintiff originally brought an action against other defendants, including the manufacturer of the defective heart valve, Shiley, Inc., Dr. Shah-Mirany and the anesthesiologist alleging claims of strict liability, medical malpractice and negligence. The anesthesiologist was dismissed from the action and Shiley ultimately settled plaintiff\u2019s claim against it for $200,000.\nPlaintiff amended his complaint to add an implied warranty theory to his negligence theory against Edgewater. Edgewater then filed a motion to dismiss and/or for summary judgment asserting that section 2 \u2014 621 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 \u2014 621) mandated Edgewater\u2019s dismissal from the implied warranty cause of action. Edgewater also filed a third-party complaint against Shiley, Inc., seeking implied warranty indemnity in the event that plaintiff prevailed on his implied warranty theory against Edge-water.\nShiley moved to dismiss the third-party complaint on the grounds that the Contribution Act protected it from indemnity because plaintiff\u2019s seventh amended complaint still included allegations of negligence against Edgewater.\nThe trial court found that Shiley\u2019s settlement barred Edgewater\u2019s indemnity claim pursuant to the Contribution Act and dismissed Edgewater\u2019s third-party complaint.\nPlaintiff subsequently dismissed the negligence claims against Edgewater and proceeded to trial solely on the theory that Edgewater\u2019s provision of the Shiley mitral valve was a \u201csale\u201d under the Illinois Commercial Code and that Edgewater, as merchant under the Code, breached the implied warranty of merchantability by providing a defective valve. Plaintiff also brought a medical malpractice/negligence action against Dr. Shah-Mirany.\nThe jury returned a verdict against Edgewater in the amount of $845,000 which the trial court reduced to $645,000 to reflect a setoff for the $200,000 settlement with Shiley. The jury returned a verdict in favor of Dr. Shah-Mirany on the medical malpractice/negligence claim. Edgewater filed motions for judgment notwithstanding the verdict, a new trial and/or reinstatement of its third-party complaint all of which were denied. This appeal followed.\nOpinion\nI\nEdgewater contends that the trial court erred in ruling that its liability could be premised on breach of implied warranty of merchantability under the Illinois Commercial Code. We disagree.\nSection 2 \u2014 314(1) of the Uniform Commercial Code (Ill. Rev. Stat. 1983, ch. 26, par. 2 \u2014 314(1)) provides:\n\u201cUnless excluded or modified *** a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.\" (Emphasis added.)\nA merchant is:\n\u201ca person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction ***.\u201d Ill. Rev. Stat. 1983, ch. 26, par. 2-104(1).\nArticle 2 of the Illinois Commercial Code is limited in its application to \u201ctransactions in goods\u201d (Ill. Rev. Stat. 1983, ch. 26, par. 2\u2014 102).\nWhere a hospital, as an ancillary part of its services, supplies whole blood to a patient by way of a transfusion, it has made a sale rather than performed a service and is therefore subject to liability under a theory of strict tort liability, although the providing of blood is not a principal function of the hospital, for a hospital\u2019s contract with a patient is divisible as to the medical and administrative acts involved. Cunningham v. MacNeal Memorial Hospital (1970), 47 Ill. 2d 443, 451, 266 N.E.2d 897.\nWe note that section 2 of the Blood and Organ Transaction Liability Act (Ill. Rev. Stat. 1983, ch. HV-k, par. 5102) has reversed Cunningham as to blood and blood derivatives. That statute provides:\n\u201c\u00a72. Limitation of liability. The procuring, furnishing, donating, processing, distributing or using human whole blood, plasma, blood products, blood derivatives and products, corneas, bones, or organs or other human tissue for the purpose of injecting, transfusing or transplanting any of them in the human body is declared for purposes of liability in tort or contract to be the rendition of a service by every person, firm or corporation participating therein, whether or not any remuneration is paid therefor, and is declared not to be a sale of any such items and no warranties of any kind or description nor strict tort liability shall be applicable thereto, except as provided in Section 3.\u201d (Emphasis added.) Ill. Rev. Stat. 1983, ch. llDk, par. 5102.\nThe legislature has determined that blood should be treated differently from drugs, surgical implements, food and other articles intended for use in the human body. Hill v. Jackson Park Hospital (1976), 39 Ill. App. 3d 223, 226, 349 N.E.2d 541.\nTherefore, Cunningham is still controlling with respect to other sales, i.e., Edgewater\u2019s sale of the two mitral valves to Mrs. Garcia.\nIn support of its argument, the defendant hospital in Cunningham cited Perlmutter v. Beth David Hospital (1954), 308 N.Y. 100, 123 N.E.2d 792, for the proposition that the transfusion of blood did not constitute a sale pursuant to the sales act in force in New York at that time. (308 N.Y. 100, 123 N.E.2d 792.) The Perlmutter rationale was that when a person enters a hospital as a patient, he goes there not to purchase pills, bandages, etc. but to obtain a course of treatment. (308 N.Y. at 104, 123 N.E.2d at 796.) However, the Cunningham court, unable to accept the reasoning of Perlmutter, stated:\n\u201cTo assert that the transfusion of whole blood by a hospital into a patient, for which a charge is made, does not give rise to implied warranties because no \u2018sale\u2019 is involved is in our judgment simply unrealistic.\u201d Cunningham, 47 Ill. 2d at 450.\nThe Cunningham court continued that it would be a distortion to try to twist what would be at least arguably a sale into the shape of a service. Cunningham, 47 Ill. 2d at 450.\nEdgewater cites WICO Corp. v. Willis Industries (N.D. Ill. 1983), 567 E Supp. 352, 355, Bob Neiner Farms, Inc. v. Hendrix (1986), 141 Ill. App. 3d 499, 501, 490 N.E.2d 257, and Pitler v. Michael Reese Hospital (1980), 92 Ill. App. 3d 739, 742, 415 N.E.2d 1255, for the proposition that the predominant purpose test is applied in Illinois to determine whether contracts are for the sale of goods or for services when both are involved, and that, as such, Edgewater should not be considered a merchant of the mitral valves which it supplied to Mrs. Garcia.\nAlso, in its supplemental brief, Edgewater cites additional authority in support of the predominant purpose test\u2019s application to this case. (Stiffler v. Lutheran Hospital (7th Cir. 1992), 965 F.2d 137; Elke v. Zimmer, Inc. (1992), 231 Ill. App. 3d 597, 596 N.E.2d 661.) However, these two cases are inapposite as neither deals with breach of warranty or any other provision of the Commercial Code. Rather, the holdings in these cases were based on the statute of repose governing actions against hospitals.\nFurther, Edgewater cites dicta from Stiffler regarding a hospital\u2019s role. Much of the language in Stiffler parallels language from the Perlmutter case.\nThe plaintiff, in Elke, initially brought a products liability action against Zimmer and Mercy Hospital. Plaintiff\u2019s second and third counts contained allegations of breach of express and implied warranties against Zimmer and Mercy Hospital. In that case, the express and implied warranties counts were subsequently dismissed by the circuit court.\nIn the instant case, the hospital charged Mrs. Garcia for two mitral valves. The holding as propounded by our supreme court in Cunningham makes it clear that the supplying of the mitral valves constituted a sale. Therefore, the trial court did not err in ruling that Edgewater\u2019s liability could be premised on breach of implied warranty.\nII\nEdgewater asserts that the trial court erred in ruling that section 2 \u2014 621 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 \u2014 621) (products liability actions) did not apply to actions premised on breach of implied warranty of merchantability. We disagree.\nSection 2 \u2014 621 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 \u2014 621) provides:\n\u201c(a) In any product liability action based *** on the doctrine of strict liability in tort commenced or maintained against a defendant *** other than the manufacturer, that party shall upon answering or otherwise pleading file an affidavit certifying the correct identity of the manufacturer of the product allegedly causing injury, death or damage ***.\n(b) Once the plaintiff has filed a complaint against the manufacturer or manufacturers, and the manufacturer or manufacturers have or are required to have answered or otherwise pleaded, the court shall order the dismissal of a strict liability in tort claim against the certifying defendant or defendants ***.\u201d (Emphasis added.)\nThe language is inclusive, and the section applies to all strict liability actions. Edgewater contends that the implied breach of warranty action is in reality a strict liability action.\nThe theories of breach of implied warranty and strict liability are nearly identical. (Nave v. Rainbo Tire Service, Inc. (1984), 123 Ill. App. 3d 585, 592, 462 N.E.2d 620.) A breach of implied warranty theory is a form of strict liability without the necessity of proving negligence or fault on the part of the defendant. Nave, 123 Ill. App. 3d at 592.\nThe strict liability theory is essentially the liability of implied warranty divested of the contract doctrines of privity, disclaimer and notice. Dunham v. Vaughn & Bushnell Manufacturing Co. (1967), 86 Ill. App. 2d 315, 333, 229 N.E.2d 684, ajf\u2019d (1969), 42 Ill. 2d 339, 247 N.E.2d 401.\nThe existence of a defect in a product has been held to be a necessary requirement to prevail under either theory. State Farm Fire & Casualty Co. v. Miller Electric Co. (1990), 204 Ill. App. 3d 52, 62, 562 N.E.2d 589.\nCourts have held that to recover under a breach of implied warranty of merchantability theory, a plaintiff must establish (1) a sale of goods, (2) that the seller of the goods is a merchant with respect to those goods, and (3) that the goods were not of merchantable quality. Malawy v. Richards Manufacturing Co. (1986), 150 Ill. App. 3d 549, 558, 501 N.E.2d 376.\nAlso, implied warranty of merchantability is an action in contract. (See Ill. Rev. Stat. 1983, ch. 26, par. 2 \u2014 314.) Strict liability is a tort action. (Restatement (Second) of Torts \u00a7402A, Comment m (1965).) Contribution is grounded in tort. Faier v. Ambrose & Cushing, EC. (1993), 154 Ill. 2d 384, 387.\nAlthough the two theories are nearly identical, they are not synonymous. The ultimate participant in strict liability actions is the manufacturer, whereas the ultimate participant in implied warranty of merchantability actions is a merchant. The court did not err in ruling that section 2 \u2014 621 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 \u2014 621) did not apply to actions premised on breach of implied warranty of merchantability.\nIll\nEdgewater contends that the \u201cRefusal To Permit Blood Transfusion\u201d signed by Mrs. Garcia and the \u201cSpecial Consent And Release\u201d signed by Mr. and Mrs. Garcia barred plaintiff\u2019s claim as a matter of law against Edgewater. We agree.\nAt oral argument, plaintiff for the first time argued that the \u201cJehovah Witness Special Consent And Release\u201d which was executed by both Mr. and Mrs. Garcia did not bar plaintiff\u2019s claim because it did not contain express reference to the language under the Uniform Commercial Code (UCC) to disclaim the implied warranties of merchantability and fitness for a particular purpose. (Ill. Rev. Stat. 1983, ch. 26, par. 2 \u2014 316(2).) Defendant Edgewater contends that because plaintiff did not raise this issue below or in his appellate brief, it is waived. We agree. 134 Ill. 2d R. 341(e)(7); Robles v. Chicago Transit Authority (1992), 235 Ill. App. 3d 121, 131, 601 N.E.2d 869 (argument raised for first time in oral argument waived pursuant to Rule 341(e)(7)); Consentino v. Price (1985), 136 Ill. App. 3d 490, 494, 483 N.E.2d 297, 300 (theory upon which a case is tried cannot be changed on review, issue not presented to or considered by the trial court cannot be raised for the first time on appeal); Klubeck v. Division Medical X-Ray, Inc. (1982), 108 Ill. App. 3d 630, 635-36, 439 N.E.2d 506 (theory advanced below cannot be changed on review).\nMoreover, appellate courts should not consider different theories or new questions if proof might have been offered to refute them had they been presented at trial. Klubeck, 108 Ill. App. 3d at 636.\nWe also consider that the purpose of section 2 \u2014 316(2) of the Uniform Commercial Code is to protect the buyer from unbargained language of disclaimer by denying effect to such language when inconsistent with contract language of express warranty, and it permits the exclusion of implied warranties by conspicuous language in the contract. First National Bank v. Husted (1965), 57 Ill. App. 2d 227, 235, 205 N.E.2d 780.\nIn the case at bar, the \u201cRefusal To Permit Blood Transfusion\u201d provided:\n\u201cI request that no blood or blood derivatives be administered to myself Victoria Garcia during this hospitalization, notwithstanding that such treatment may be deemed necessary in the opinion of the attending physician or his assistants to preserve life or promote recovery. I release the attending physician, his assistants, the hospital and its personnel from any responsibility whatever for any untoward results due to my refusal to permit the use of blood or its derivatives.\u201d\nThe \u201cSpecial Consent And Release\u201d stated:\n\u201cI hereby authorize Dr. J. Shah-Mirany and/or such assistants as may be selected by him to treat my heart condition by the performance of the following surgery: open heart surgery, mitral valve replacement and possible IAB cardiac arrest.\nThe procedures necessary to treat my condition have been explained to me by Dr. J. Shah-Mirany, and I understand the nature of the procedures to be opening the chest, removing the diseased valve and replacement and any other procedure necessary[.]\nIt has been explained to me that during the course of the operation, unforeseen conditions may be revealed that would medically necessitate a transfusion of human blood or blood derivatives. I do not authorize the above-named surgeon, his assistants, or his designees to perform such transfusion. I fully recognize that failure to transfuse blood may result in my death.\nIn the event of my death as a result of not administering blood, we hereby absolve Dr. J. Shah-Mirany, his assistants, his designees, and Edgewater Hospital of Chicago and its agents from liability.\u201d (Emphasis added.)\nWhile we are mindful that exculpatory contracts are not favored and must be construed against the benefitting and drafting party, they will be enforced unless it would be against public policy, or there is something in the social relationship of the parties militating against upholding the agreement. Harris v. Walker (1988), 119 Ill. 2d 542, 548, 519 N.E.2d 917.\nWe are also mindful that releases which spell out the intention of the parties with great particularity generally will not be construed to defeat a claim which is not explicitly covered by the terms of the release. Scott & Fetzer Co. v. Montgomery Ward & Co. (1986), 112 ILl. 2d 378, 395, 493 N.E.2d 1022.\nHere, in construing the releases against the hospital and in reviewing the record for violation of public policy, there are no policy reasons which would indicate that the releases should not be upheld.\nThe releases explicitly delineated the desires and intentions of both parties. Mrs. Garcia did not want a blood transfusion under any circumstances and the hospital would not be responsible whatever untoward result occurred from her refusal to permit such transfusion.\nAlso, the Illinois Supreme Court has held that a Jehovah\u2019s Witness\u2019 first amendment rights preclude them from being forced to accept blood transfusions. In re Estate of Brooks (1965), 32 Ill. 2d 361, 372, 205 N.E.2d 435.\nWe note that plaintiff cites Corlett v. Caserta (1990), 204 Ill. App. 3d 403, 407, 562 N.E. 2d 257, for the proposition that the releases which were executed by Mrs. Garcia did not relieve Edgewater from being obligated to furnish her with a heart valve that was fit for its intended purpose.\nHowever, Corlett is distinguishable from the case at bar. In Corlett, plaintiff\u2019s wrongful death suit was founded upon the defendant doctor\u2019s alleged negligent failure to timely diagnose and treat the decedent\u2019s gastric bleeding following colon surgery. The suit was not predicated upon the defendant doctor\u2019s respect for the decedent\u2019s refusal-to-transfuse-blood release. Consequently, the court found that the release did not relieve the defendant doctor from liability for alleged negligence.\nIn the case at bar, releases were necessary to protect the hospital from unforeseen developments such as the one which occurred. The releases were straightforward and unambiguous. They expressly addressed the possibility of unforeseen conditions (i.e., the defective Shiley mitral valve) and acknowledged that if unforeseen conditions occurred, Mrs. Garcia\u2019s refusal to permit a blood transfusion might result in her death.\nAs such, we hold that the releases barred plaintiff\u2019s claim against Edgewater. Although we must reverse because of this holding, for completeness, we will address the remaining issue relating to the dismissal of Edgewater\u2019s third-party complaint for indemnity against Shiley.\nIV\nEdgewater contends that the trial court erred in granting defendant Shiley\u2019s motion to dismiss Edgewater\u2019s third-party complaint on the ground that Edgewater\u2019s third-party complaint for indemnity against Shiley was barred by Shiley\u2019s previous settlement with plaintiff pursuant to the Contribution Act. We agree.\nA\nThe right to indemnity and the right of contribution are separate and distinct concepts. Contribution contemplates the distribution of liability for a loss among joint tortfeasors according to each tortfeasor\u2019s percentage of relative fault. However, indemnity allows one tortfeasor to shift the entire loss to another tortfeasor. (Dixon v. Chicago & North Western Transportation Co. (1992), 151 Ill. 2d 108, 118, 601 N.E.2d 704.) The Illinois Supreme Court has held that the implied warranty in a defective products case remains available only where the party seeking the right was not negligent or otherwise at fault in causing the loss. Dixon, 151 Ill. 2d at 120-21.\nGenerally, indemnity is the obligation resting on one party (the indemnitor) to make good a loss or damage another (the indemnitee) has incurred. The right to be indemnified by another may be express, as in a contractual provision, or it may be implied, which would arise in situations in which a promise to indemnify can be implied from the relationship between the tortfeasors. Dixon, 151 Ill. 2d at 118.\nSubsequent to the Dixon case, the Illinois Supreme Court directly considered whether the Contribution Act abolished common law implied indemnity in quasi-contractual situations. The supreme court has held that acts in relation to contribution among joint tortfeasors do not effectively abolish actions for common law implied indemnity in vicarious liability actions. American National Bank & Trust Co. v. Columbus Cuneo-Cabrini Medical Center (1992), 154 Ill. 2d 347 (modified upon denial of rehearing, February 1, 1993).\nAlso, the circumstances in the case at bar relative to the right to indemnity is also analogous to Faier where our supreme court held that a defendant-attorney who settled the entire claim of plaintiff in a legal malpractice action had the right to maintain an action for contribution and implied indemnity against a released, nonsettling attorney. Faier, 154 Ill. 2d at 387.\nFollowing the American National Bank and Faier cases, we now hold that the trial court erred in ruling that Edgewater\u2019s third-party complaint for indemnity against Shiley was barred by Shiley\u2019s previous settlement with plaintiff.\nB\nShiley contends that Edgewater\u2019s implied indemnity claim is barred by the UCC four-year statute of limitations contained in section 2 \u2014 725 of the Uniform Commercial Code (Ill. Rev. Stat. 1983, ch. 26, par. 2 \u2014 725), which provides that UCC actions must be filed within four years of the contract breach. We disagree.\nThe Illinois Supreme Court and the Illinois Appellate Court have established that even where the parties have an underlying contractual relationship, an implied indemnity action is still an action sounding in tort and therefore the UCC four-year statute of limitations does not apply. Instead, the applicable limitation statute is the general five-year provision contained in section 13 \u2014 205 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13 \u2014 205), which provides that the limitation does not run until judgment is entered against the party seeking indemnity. Maxfield v. Simmons (1983), 96 Ill. 2d 81, 86, 449 N.E.2d 110; Anixter Brothers, Inc. v. Central Steel & Wire Co. (1984), 123 Ill. App. 3d 947, 953, 463 N.E.2d 913.\nIn Maxfield and Anixter Brothers, the defendant/third-party plaintiff (like Edgewater) was sued on a contractual theory. In Max-field, defendant/third-party plaintiff, Simmons, was sued in contract for installing defective materials in a home. Simmons had purchased the defective materials from the third-party defendants. Thus, Simmons filed a third-party complaint for implied indemnity against the third-party defendants who claimed that the implied indemnity action was barred by the four-year statute of limitations under the Uniform Commercial Code. Our supreme court rejected the UCC argument and held that although the relationship between the parties was premised on contract, the implied indemnity action itself was still premised on tort principles and thus:\n\u201cA recognition of this implied right of indemnity does not \u2018eviscerate\u2019 the UCC\u2019s statute of limitations contained in section 2\u2014 725, since it has no application to the indemnity cause of action.\u201d Maxfield, 96 Ill. 2d at 86.\nIn Anixter Brothers, the plaintiff, Anixter Brothers, brought an action for breach of contract and breach of warranty against Central Steel & Wire Co. (Central) to recover damages for the replacement of defective brass tubing. Central then brought a third-party implied indemnity action against Bridgeport Brass Co., which had sold the allegedly defective brass tubing to Central. Bridgeport moved to dismiss inter alia on the grounds that the third-party complaint was barred by the four-year UCC statute of limitations. Following Max-field, the appellate court held that although the relationship between Central and Bridgeport arose as a result of a contract, the implied indemnity action is still a tort recovery and, therefore, the UCC period of limitations for bringing an action under the UCC is inapplicable. Anixter, 123 Ill. App. 3d at 953.\nFor the foregoing reasons, we reverse and remand with directions that the judgment against Edgewater be vacated and that judgment be entered for Edgewater and against plaintiff.\nReversed and remanded with directions.\nMURRAY and McNULTY, JJ., concur.", "type": "majority", "author": "JUSTICE COUSINS" } ], "attorneys": [ "Lord, Bissell & Brook, of Chicago (Harold L. Jacobson, Hugh C. Griffin, David C. Hall, and Sandra K. Macauley, of counsel), for appellant.", "Carr & O\u2019Rourke Associates, of Chicago (Donald A. Carr and Roland P. Ernst, of counsel), for appellee Alfredo Garcia.", "Mayer, Brown & Platt, of Chicago (Robert F. Finke, Michele Odorizzi, Priscilla P. Weaver, and Kurt D. Williams, of counsel), for appellee Shiley, Inc." ], "corrections": "", "head_matter": "ALFREDO GARCIA, Adm\u2019r of the Estate of Victoria Garcia, Deceased, Plaintiff-Appellee, v. EDGEWATER HOSPITAL, Defendant-Appellant and Third-Party Plaintiff-Appellant (Shiley, Inc., Third-Party Defendant-Appellee).\nFirst District (5th Division)\nNo. 1\u201490\u20143663\nOpinion filed March 26,1993.\nRehearing denied May 19, 1993.\nLord, Bissell & Brook, of Chicago (Harold L. Jacobson, Hugh C. Griffin, David C. Hall, and Sandra K. Macauley, of counsel), for appellant.\nCarr & O\u2019Rourke Associates, of Chicago (Donald A. Carr and Roland P. Ernst, of counsel), for appellee Alfredo Garcia.\nMayer, Brown & Platt, of Chicago (Robert F. Finke, Michele Odorizzi, Priscilla P. Weaver, and Kurt D. Williams, of counsel), for appellee Shiley, Inc." }, "file_name": "0894-01", "first_page_order": 914, "last_page_order": 927 }