dissenting:
I adopt the factual recitation set out by the majority.
In my view, the issues in this case have been dealt with and resolved in our earlier case of Ketcham v. Consolidated Rail Corp. (1986), 146 Ill. App. 3d 196, 496 N.E.2d 1104, and it is controlling upon us now. The facts in Ketcham revealed that a freight train derailment occurred in Porter, Indiana. One of the derailed gondola cars, operated by Conrail, had been loaded and secured with rolls of steel cylinders by Republic. Two Conrail employees, plaintiff Howard Ketcham and Harvey Chandonia, were injured as a result of the derailment. Conrail sustained damages to its train and other equipment.
Conrail filed an amended three-count, third-party complaint against Republic. Count I sought from Republic indemnification for any damages Conrail might be obligated to pay Ketcham. Count II sought damages to Conrail’s property. Count III sought indemnification for $5,000, which Conrail paid Chandonia in settlement of his claim against it filed in a separate FELA action. Republic then filed a motion to dismiss counts II and III of Conrail’s amended third-party complaint, asserting that those counts seeking recovery for Conrail’s property damage and indemnification for Chandonia’s settlement were independent claims and, therefore, improperly brought as third-party claims under section 2 — 406(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — -406(b)). During the pendency of Republic’s motion to dismiss Conrail’s amended third-party complaint, Conrail and Republic settled Ketcham’s claim. Accordingly, count I of Conrail’s amended third-party complaint, seeking indemnification from Republic for any damages it might be obligated to pay Ketcham, was voluntarily dismissed. Thereafter the trial court dismissed counts II and III of Conrail’s amended third-party complaint, based on its determination that section 2 — 406(b) of the Code did not permit the filing of claims for Conrail’s property damages and indemnification for monies Conrail paid in settlement of Chandonia’s claim. Conrail then filed a motion for reconsideration of this dismissal order. The circuit court denied the motion and the appeal followed.
We held on appeal:
“Only those claims which a third-party defendant is or may be liable to the original defendant for all or part of the plaintiff’s claims against him are proper under third-party proceedings ***.” Ketcham, 146 Ill. App. 3d at 201, 496 N.E.2d at 1107.
We relied upon the reasoning of Filipponio v. Bailitz (1978), 73 Ill. App. 3d 389, 392, 392 N.E.2d 23, 26, reiterated in Scott & Fetzer Co. v. Montgomery Ward & Co. (1984), 129 Ill. App. 3d 1011, 473 N.E.2d 421, aff’d (1986), 112 Ill. 2d 378, 493 N.E.2d 1022:
“Although third-party practice is properly used to reduce litigation where the third-party claim arises out of the same basic facts which determine the plaintiff’s claim against the defendant, it can not [sic] be used to maintain an entirely separate and independent claim against a third-party, even if it arises out of the same general set of facts as the main claim.” Ketcham, 146 Ill. App. 3d at 201-02, 496 N.E.2d at 1108.
In Ketcham, Conrail sought recovery for its own losses — its property damage and money paid to Chandonia. Clearly, we concluded, Republic’s liability to Conrail for these claims was not dependent upon the outcome of Conrail’s liability to Ketcham. Ketcham, 146 Ill. App. 3d at 202, 496 N.E.2d at 1108.
It is my view that the claim for damages against Illinois Bell Telephone Company in the instant case is a separate, independent claim of the defendant and third-party plaintiff, Transcontinental Freight Systems, Inc., seeking recovery against Bell for its own damages. Consequently, the facts alleged in defendant’s third-party complaint do not set forth a sufficient basis upon which to sustain a third-party action, and the trial court properly dismissed it.
Accordingly, I would affirm the trial court’s ruling that Transcontinental Freight’s claim was not properly brought as a third-party action pursuant to section 2 — 406(b) of the Illinois Code of Civil Procedure.