dissenting:
The majority concludes that the lease clause in issue arguably requires the defendant-lessee to indemnify the plaintiff-lessor for losses sustained as a consequence of the plaintiff’s own negligence. While I agree conceptually with such a conclusion, I must respectfully dissent as I do not believe that indemnity clauses are void by reason of the provisions of section 1 of the Landlord and Tenant Act (Act) (765 ILCS 705/1 (West 1996)).
Section 1 of the Act renders unenforceable "[ejvery covenant, agreement or understanding in or in connection with or collateral to any lease of real property, exempting the lessor from liability for damages for injuries to person or property caused by or resulting from the negligence of the lessor.” (Emphasis added.) 765 ILCS 705/1 (West 1996). The clear and unambiguous language of this statute addresses only exculpatory clauses, that is, clauses that exempt a landlord from liability. No mention is made of indemnity clauses that have no effect upon the landlord’s underlying liability to an injured party but that merely shift the loss by creating an action over in favor of the landlord against the lessee-indemnitor.
In McMinn v. Cavanaugh, 177 Ill. App. 3d 353, 356, 532 N.E.2d 343 (1988), this court recognized that the proscription in section 1 of the Act is in derogation of the common law and must, therefore, be strictly construed. The McMinn court also acknowledged the distinction between exculpatory contracts and indemnity contracts. McMinn, 177 Ill. App. 3d at 356-57. However, in spite of its own legal analysis and the clear language of the Act, the McMinn court concluded:
"Despite the distinction between exculpation and indemnification, an indemnity clause in a lease has the same effect as a lease exculpation clause: the landlord does not pay. We cannot believe that the legislature, while prohibiting landlords from avoiding paying claims through exculpation, intended to allow landlords to avoid paying claims through indemnity. We hold that the Act, by clear and necessary implication, forbids indemnity agreements in leases as well as exculpatory agreements.” McMinn, 177 Ill. App. 3d at 357.
Although I agree with the legal analysis set forth in McMinn as it relates to the construction of statutes in derogation of the common law and the distinction between exculpatory and indemnity clauses, I cannot agree, however, with the conclusion reached by the McMinn court that the Act renders indemnity agreements in leases void.
The primary rule of statutory construction is to ascertain and effectuate the intent of the legislature. People ex rel. Hanrahan v. White, 52 Ill. 2d 70, 73, 285 N.E.2d 129 (1972). If the intent of the legislature is manifest through its use of plain, clear, and unambiguous language, courts must enforce the statute as enacted without resorting to other aids for construction. In re Marriage of Logston, 103 Ill. 2d 266, 469 N.E.2d 167 (1984). Courts are not at liberty to alter the plain meaning of the words employed by forced or subtle construction. People ex rel. Pauling v. Misevic, 32 Ill. 2d 11, 15, 203 N.E.2d 393 (1964). "There is no rule of construction which authorizes a court to declare that the legislature did not mean what the plain language of the statute imports.” People ex rel. Scott v. Schwulst Building Center, Inc., 89 Ill. 2d 365, 371, 432 N.E.2d 855 (1982).
A simple reading of section 1 of the Act reveals that the legislature voided only exculpatory clauses in leases. When it chooses, the legislature is well able to address the enforceability of indemnity agreements. See 740 ILCS 35/1 (West 1996) (voiding certain indemnity agreements in contracts for improvements on real property). But in the case of section 1 of the Act, the legislature chose, for whatever reason, not to do so, and no amount of judicial construction can change that fact.
The majority seems to base its holding on an acceptance of the conclusion reached in McMinn when it finds that the indemnification clause in the lease agreement between the parties in this case is void under the Act. Because I do not believe that the Act renders indemnification clauses such as the one in issue void as against public policy, I would decline to follow McMinn and reverse the judgment of the trial court. Consequently, I must respectfully dissent.