dissenting:
If it is the majority view that the entire doctrine of implied indemnity was abolished in Illinois with the decisions and legislative enactments recognizing a right of contribution among joint tortfeasors, I cannot agree. The Supreme Court of Illinois recently confirmed the abolition of implied indemnity based on theories of active/passive negligence in a Structural Work Act case but expressly declined to rule on “whether a tortfeasor whose liability is vicariously imposed by policy of law rather than culpability of conduct may shift the whole of its liability to those parties actually and solely at fault.” Allison v. Shell (1986), 113 Ill. 2d 26, 35, 479 N.E.2d 333. See also Heinrich v. Peabody International Corp. (1984), 99 Ill. 2d 344, 459 N.E.2d 935.
Those cases finding that implied indemnity has survived in some instances are, in my view, persuasive. One of the first such cases was Van Jacobs v. Parikh (1981), 97 Ill. App. 3d 610, 612-13, 422 N.E.2d 979, where the court said:
“Indemnity derives from principles of contract, and may be express or implied. Application of the doctrine shifts the responsibility from the indemnitee and onto the truly culpable person who in fact caused the loss. (Prosser, Law of Torts 310 (4th ed. 1971).) Implied indemnity classically requires some pretort relationship between the parties which gives rise to a duty to indemnify. See, e.g., Mierzejwski v. Stronczek (1968), 100 Ill. App. 2d 68, 241 N.E.2d 573 (lessor and lessee); Embree v. DeKalb Forge Co. (1964), 49 Ill. App. 2d 85, 199 N.E.2d 250 (employer and employee); Blaszak v. Union Tank Car Co. (1962), 37 Ill. App. 2d 12, 184 N.E.2d 808 (owner and his lessee); Gulf, Mobile & Ohio R.R. Co. v. Arthur Dixon Transfer Co. (1951), 343 Ill. App. 148, 98 N.E.2d 783 (master and servant).)
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The contribution act has not extinguished indemnity in Illinois but instead, permits the courts to place indemnity back upon its theoretical foundation. We *** hold that in addition to a qualitative distinction between the conduct of the parties, a cause of action for indemnity requires a duty to indemnify, arising not from the relative fault of the parties, but from the pretort relationship between the parties.”
In Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App. 3d 80, 463 N.E.2d 792, the court recognized that strict liability is based upon the policy of placing the onus on the one who has placed a defective product in the stream of commerce and reaped the profit therefrom. In order to give effect to that policy, the courts have recognized “upstream” indemnity claims even to a manufacturer who incorporated a defective part into his final product. According to Lowe, the policy underlying strict liability continues to be recognized and so does the right to indemnity in such cases. Contra, Holmes v. Sahara Coal Co. (1985), 131 Ill. App. 3d 666, 475 N.E.2d 653.
Two decisions recognizing that implied indemnity is not extinguished by the Contribution Act in cases involving some pretort relationship between the parties which gives rise to a duty to indemnify and for “upstream” claims in a strict liability action are Morizzo v. Laverdure (1984), 127 Ill. App. 3d 767, 469 N.E.2d 653, and Bristow v. Griffitts Construction Co. (1986), 140 Ill. App. 3d 191, 488 N.E.2d 332. To me, these cases represent the better view of the law in Illinois, and I would hold that here the trial court erred when it dismissed ComEd’s indemnity claim against Dow on the ground that indemnity in product liability cases has been abolished in Illinois.
I also wish to state my disagreement with the dicta contained in the last paragraph of the section of the majority opinion titled “I. Implied Indemnity.” If ComEd had not settled with plaintiff and all the claims were litigated in one trial, I do not believe that plaintiff’s negligence could be considered in allocating liability on the basis of a proportional fault as to Structural Work Act or defective-product claims. The supreme court has held that under the Structural Work Act and product liability, a defendant’s liability is not diminished by any negligence attributable to the plaintiff. (Simmons v. Union Electric Co. (1984), 104 Ill. 2d 444, 473 N.E.2d 382 (Structural Work Act); Simpson v. General Motors Corp. (1986), 108 Ill. 2d 146, 483 N.E.2d 1 (strict product liability).) I cannot agree with the majority that a plaintiff’s negligence would be considered by the jury in allocating liability among the defendants on such claims.