dissenting:
In a trilogy of cases, the Illinois Supreme Court has clearly decided that the manufacturer of a defective product may proceed downstream to seek contribution from other allegedly culpable defend- j ants. In Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437, Stevens v. Silver Manufacturing Co. (1977), 70 Ill. 2d 41, 374 N.E.2d 455, and Robinson v. International Harvester Co. (1978), 70 Ill. 2d 47, 374 N.E.2d 458, the court adopted and developed the theory of contribution among joint tortfeasors, thus permitting a manufacturer to maintain an action downstream for contribution. In doing so the court expressly reversed a century of rulings in a substantial body of case law. In my judgment the Illinois Supreme Court also sanctioned such a downstream action for cases involving the historic legal principle of indemnity. For a background discussion of the law of indemnity, see Restatement of Restitution secs. 76-102 (1937).
This case concerns indemnity, not contribution. The Illinois Appellate Court has ruled in a number of cases that a manufacturer may not seek indemnity against a downstream party, such as the employer in the instant case. The appellate court’s rationale is that public policy is contravened if a manufacturer is allowed to bring such a downstream action or that a manufacturer owes a more stringent duty to the injured plaintiff, which in turn prevents such an action. See Kossifos v. Louden Machinery Co. (1974), 22 Ill. App. 3d 587, 317 N.E.2d 749; Stanfield v. Medalist Industries, Inc. (1974), 17 Ill. App. 3d 996, 309 N.E.2d 104; Burke v. Sky Climber, Inc. (1973), 13 Ill. App. 3d 498, 301 N.E.2d 41, affd (1974), 57 Ill. 2d 542, 316 N.E.2d 516.
The Illinois Supreme Court has never specifically considered whether a manufacturer may proceed downstream against another allegedly culpable party in an indemnity action. The lead case, Skinner, concerned contribution, not indemnity. While the parties in Stevens and Robinson sought indemnity rather than contribution, both cases were reversed and remanded to the circuit court for proceedings consistent with the Skinner opinion. Skinner specifically attacks the rationale advanced in the appellate court cases which prohibit downstream actions for indemnity. Skinner states:
“Citing Texaco, Inc. v. McGrew Lumber Co., 117 Ill. App. 2d 351, Kossifos v. Louden Machinery Co., 22 Ill. App. 3d 587, and Burke v. Sky Climber, Inc., 57 Ill. 2d 542, the employer argues that a defendant held strictly liable in tort is precluded from seeking contribution ‘because public policy requires that its liability to an original plaintiff be considered active’ and that the duty imposed in strict liability is more stringent than in cases involving negligence. We do not agree. The public policy considerations which motivated the adoption of strict liability ' (see Suvada v. White Motor Co., 32 Ill. 2d 612) were that the economic loss suffered by the user should be imposed on the one who created the risk and reaped the profit, including everyone from the manufacturer on through to the seller or any one of them. When the economic loss of the user has been imposed on a defendant in a strict liability action the policy considerations of Suvada are satisfied and the ordinary equitable principles governing the concepts of indemnity or contribution are to be applied.” (70 Ill. 2d 1,14, 374 N.E.2d 437, 442-43.)
When Skinner, Stevens and Robinson are read together, I believe that the supreme court overruled the prior appellate court indemnity cases, thereby allowing downstream actions for indemnity, as well as for contribution.
The next question is whether this ruling should be prospective. In Skinner, the ruling concerning contribution was prospective; the supreme court utilized the rationale adopted in Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11, 27, 163 N.E.2d 87, 97: “[A]n overruling decision should be given only prospective operation whenever injustice or hardship due to reliance on the overruled decisions would thereby be averted.” Both Skinner and Molitor concerned supreme court cases which were overturned by subsequent supreme court decisions. No such situation applies in this case. The supreme court was not overruling its own decision; it was overruling the decision of an appellate court. Consequently, prospective application is not appropriate.
For the reasons stated I would reverse the decision of the trial court.