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Waddell v. LTV Steel Co.12/3/1997
336 N.E.2d 881] and Capua [v. W.E. O'Neil Constr. Co. (1997), 67 Ill.2d 255, 10 Ill.Dec. 216, 367 N.E.2d 669], because both liability insurance and indemnity agreements negate incentive to be careful since they relieve the insured and the indemnitee from ultimate responsibility for their negligence. However, the two decisions, taken together, seem to express a policy in regard to indemnity agreements in construction contracts, which is as follows: (1) indemnity agreements, except in construction bonds and agreements to insure to protect the indemnitor from contractual liability, are void because the dominant aspect of these agreements is the disincentive to the exercise of care by the indemnitee which results; and (2) indemnity agreements in construction bonds and agreements to provide liability insurance for another party to the contract, even though that party is an indemnitee, are valid because their dominant aspect is to afford a source of funds for persons tortiously injured in the work on the construction contract."
It is my view that this court should recognize the same distinctions that other leading jurisdictions do in making insurance coverage available to injured workers where the parties have contracted to supply same.
Given the foregoing discussion, since the record does not reveal whether RCR procured the insurance required by Section 13(b), I would reverse the directed verdict on the insurance issue and remand the cause for further proceedings consistent with this opinion. In the alternative, I would certify the majority decision to the Ohio Supreme Court as in conflict with the Brzeczek case.
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