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Estate of Willis v. Kiferbaum Construction Corp.5/26/2005
Third-party plaintiff Kiferbaum Construction Corp. (Kiferbaum) appeals from an order of the trial court finding a settlement agreement between plaintiff Debbie McDaniel and third-party defendant Decking & Steel, Inc. (Decking & Steel), to be in good faith and dismissing Kiferbaum's third-party complaint for contribution against Decking & Steel with prejudice. For the reasons that follow, we affirm.
In 1999, Kiferbaum was designated as the general contractor for the construction of a building in Vernon Hills for Educational Testing Associates. Kiferbaum entered into a subcontract with Arlington Structural Steel Corp. (Arlington) to fabricate and erect structural steel for the project. Paragraph 7 of the subcontract stated in part:
"The Subcontractor agrees to assume entire responsibility and liability, to the fullest extent permitted by law, for all damages or injury to all persons, whether employees or otherwise, and to all property, arising out of it, resulting from or in any manner connected with, the execution of the work provided for in this Subcontractor * and the Subcontractor, to the fullest extent permitted by law, agrees to indemnify and save harmless the Contractor * from all such claims including, without limiting the generality of the foregoing, claims for which the Contractor may be or may be claimed to be, liable and legal fees and disbursements paid or incurred to enforce the provisions of this paragraph *."
The Kiferbaum-Arlington indemnity provision did not require Arlington to indemnify Kiferbaum against its own negligence. It also stated, under paragraph 11, that where any "provision of the General Contract documents between the Owner and Contractor is inconsistent with any provision of this Agreement, this Subcontract shall govern."
Arlington in turn entered into a subcontract with Decking & Steel to erect the structural steel Arlington had fabricated. The subcontract, written on a 1978 standard form, identified Arlington as the "Contractor" and Decking & Steel as the "Subcontractor" and stated that its documents consisted of "this Agreement" as well as "the Agreement between the General Contractor and Contractor."
The general conditions stated that "the Subcontractor" would assume toward "the Contractor" all the obligations and responsibilities which "the Contractor" assumed toward "the Owner" and would have the benefit of all rights against "the Contractor" which "the Contractor" had against "the Owner," but that where any provision of the contract between the "Owner" and the "Contractor" was inconsistent with a provision of the immediate subcontract, the subcontract between Arlington and Decking & Steel would govern.
The subcontract contained an indemnification provision in Article 11.11.1, which read, in part, as follows:
"the Subcontractor shall indemnify and hold harmless the Owner, the Architect and the Contractor and all of their agents and employees from and against all claims, damages, losses, and expenses * arising out of or resulting from the performance of the Subcontractor's work under this Subcontract, provided that any such claim * is attributable to bodily injury * to the extent caused in whole or in part by any negligent act or omission of the Subcontractor of anyone directly or indirectly employed by him or anyone for whose acts he may be liable, regardless of whether it is caused in part by a party indemnified hereunder."
Paragraph 11.11.2 of the subcontract stated as follows:
"In any and all claims against the Owner, the Architect, or the Contractor or any of their agents or employees by any employee of the Subcont
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