dissenting:
I agree with the majority’s disposition of the claim against Illinois Bell and would affirm the trial court. I also concur with the conclusion that the deposit with the clerk of the court of an amount equal to the liquidated damages is not an admission of liability by Holmes. I do not, however, agree with the breadth of the summary judgment entered in Holmes’ favor.
During restoration of the building on Hinman Avenue, the Museum entered into a contract with Holmes for the installation of an alarm system and for future maintenance of the system. The contract and the 16 attached riders between the parties provide for separate treatment of installation costs and service or maintenance charges. Some riders set out the installation costs and note an additional service or maintenance charge, others show the installation cost and state that there will be no additional service or maintenance charge, while others provide for merely an additional service or maintenance charge.
The majority correctly observes that the contract contains an exculpatory clause which seeks to exculpate Holmes from any liability "that might arise from a breach of the agreement or negligence on the part of Holmes.” Our courts have recognized the validity of such clauses as they relate to contracts for the service or maintenance of alarm systems. See Scott & Fetzer Co. v. Montgomery Ward & Co. (1986), 112 Ill. 2d 378, 493 N.E.2d 1022; Purolator Security, Inc. v. Wells Fargo Alarm Service (1986), 141 Ill. App. 3d 1106, 491 N.E.2d 161; First Financial Insurance Co. v. Purolator Security, Inc. (1979), 69 Ill. App. 3d 413, 388 N.E.2d 17.
All of these cases addressed the exculpation of the defendants where their conduct in the service or maintenance of alarm systems was the subject matter of the litigation. None deal explicitly with the breach of their duty in the installation of the system. For example, the majority relies upon Purolator Security, Inc. v. Wells Fargo Alarm Service (1986), 141 Ill. App. 3d 1106, 491 N.E.2d 161, as "a case on point.” (275 Ill. App. 3d at 180.) However, an examination of that decision reveals that the plaintiff alleged that the alarm company had failed to respond to the system’s warning light or buzzer, failed to send an agent to the premises or contact law enforcement authorities when the light or buzzer was activated. There is no allegation as to a breach of duty in the installation of the system.
The issue here is whether the Construction Contract Indemnification for Negligence Act (the Act) (740 ILCS 35/1 (West 1992)) invalidates such exculpatory clauses as they apply to construction or installation undertakings. It is clear that it does not affect exculpation under the service and maintenance obligations of Holmes under the contract. But it is less clear that we can ignore the apparent language of the Act as to portions of the contract calling for construction or installation.
Like the recently demised Scaffolding Act, the majority, without citation, suggests that the Act was passed only to protect construction workers and only for damages incurred during the period of construction. Unfortunately, there is no section of the Act or preamble that leads to the imposition of such a limitation. The language of the Act defines the type of agreement into which an exculpatory clause may not be inserted and does not specify the class intended to benefit from its provisions.
Accordingly, I do not believe that the exculpatory clause bars an action for a breach of duty in connection with the construction or installation of the system even though the damages may occur after the completion of the project. Paragraphs 18(a), (b) and (c) of plaintiffs’ complaint refer to the installation of the system and as to that narrow window of opportunity, I would reverse the order of the trial court only as to such allegations.
Although in Scott & Fetzer Co. v. Montgomery Ward & Co. (1986), 112 Ill. 2d 378, 493 N.E.2d 1022, the plaintiff’s allegations refer to complaints about "installation,” the defendant there did not raise the Act as a bar to the exculpatory clause and this issue was not considered by that court.
This appeal involves multiple plaintiffs: the Museum, Stephen Byer and Barbara Byer, individually, Stephen Byer & Associates (apparently a corporation with Byer as sole shareholder), a land trust holding title and the mortgage lender. Initially, the trial court entered judgment against only the Museum that was the sole signatory to the alarm contract. Later in the proceedings, the court found against the Byers individually and their corporation because of the knowledge imputed to them of the existence of the exculpatory clause citing as authority a Maryland case, Schrier v. Beltway Alarm Co. (1987), 73 Md. App. 281, 533 A.2d 1316. No proper allegations or showing were made by the defendant which would have allowed the piercing of the corporate veil. After a series of additional orders, judgment was entered against all of the other plaintiffs.
Since I do not believe the exculpatory clause to be an effective bar to the cause of action for Holmes’ acts during construction, I need not address issues relating to the scope of the application of the Scott & Fetzer doctrine. In that case, the supreme court held that the exculpatory clause in the contract entered into between the warehouse owner and the alarm company could not defeat the claims of "adjacent tenants.” Although the rights of persons storing materials on the subject property was not before the court, the court, by way of dicta, suggested that an action brought by "some party who had property stored in Wards’ portion of the warehouse” might also be barred. (Scott & Fetzer, 112 Ill. 2d at 396.) Since I would hold the Act a bar to the exculpatory clause, I need not determine whether the Byers, their various entities, the land trust or the mortgage lender are parties "who had property stored” as defined by Scott & Fetzer. By this observation, however, I do not pass upon the question of whether a mortgage holder has a cause of action in any event.
I would, therefore, return this to the trial court to only consider a cause of action which arose as a result of the construction or installation of the system.