dissenting:
I am unable to conclude, as does the majority, that the Illinois Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1981, ch. 70, par. 301 et seq.) extinguishes all actions of implied indemnity; therefore, I respectfully dissent.
In adopting the special concurring opinion of Justice Downing in Morizzo v. Laverdure (1984), 127 Ill. App. 3d 767, 469 N.E.2d 653, the majority in the case at bar overrules the majority of the court in Morizzo in its decision that certain causes of action for implied indemnity are not extinguished by the Contribution Act. The court in Morizzo did, in fact, determine that implied ijdemnity is still viable in Illinois with respect to cases involving some pre-tort relationship between parties which gives rise to a duty to indemnify, such as those involving vicarious liability (lessor-lessee; employer-employee; owner and lessee; master and servant) and “upstream” claims in a strict liability action.
In the case at bar, Sahara’s counterclaim against Caterpillar is an “upstream” claim in a strict liability action and, consequently, is embraced within one of the specified instances in which the Morizzo court found that implied indemnity still exists. Such a claim falls squarely within the ambit of the rule announced in Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App. 3d 80, 97, 463 N.E.2d 792, 805, in which this court stated that the Illinois Contribution Act does not prohibit an action for “upstream” indemnity in products liability cases.
Applying the above rationale to the instant appeal, it is my conclusion that Sahara’s counterclaim stated a cause of action against Caterpillar for implied indemnity. Furthermore, the jury in its answer to special interrogatory No. 2 found that Caterpillar placed a defective and unreasonably dangerous product in the stream of commerce and that such defective and dangerous condition was the proximate cause of the injuries sustained by plaintiff. Therefore, Sahara would have been entitled to a judgment on its counterclaim against Caterpillar for indemnity; and although “downstream” indemnity has generally been prohibited, Caterpillar should be permitted to seek contribution from Sahara to establish that it is entitled to contribution on the basis that Sahara misused or assumed the risk of the defective product. Cf. Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App. 3d 80, 97, 463 N.E.2d 792, 805.
For the foregoing reasons, I would reverse the decision of the trial court and remand this cause for a new trial consistent with this dissent.