dissenting:
I do not agree with the majority that Commonwealth Edison Company’s settlement of the plaintiff’s 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’s liability to the plaintiff on the grounds asserted in the plaintiff’s complaint, grounds that would preclude an action by Edison for implied indemnity. The majority therefore concludes that Edison is “a tortfeasor subject to the principle of comparative fault” (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’s analysis, and for that reason I dissent.
The 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 “upstream” manufacturer or distributor of a defective product. Had the plaintiff proved Edison’s 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’s 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.
Under the majority’s reasoning, the unproved allegations in the plaintiff’s 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’s 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’s 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’s third-party action.
For those reasons, I do not believe that Edison’s mere agreement to settle the plaintiff’s action should have the effect claimed for it by the majority. Accordingly, I dissent.