Indemnity derives from principles of contract, and may be express or implied. Implied indemnity traditionally requires a pre-tort relationship which gives rise to a duty to indemnify. See, e.g., Mierzejwski v. Stronczek, 100 Ill. App.2d 68, 241 N.E.2d 573 (1968) (lessor-lessee); Embree v. DeKalb Forge Co., 49 Ill. App.2d 85, 199 N.E.2d 250 (1964) (employer-employee); Blaszak v. Union Tank Car Co., 37 Ill. App.2d 12, 184 N.E.2d 808 (1962) (owner-lessee); Gulf, Mobile Ohio R.R. Co. v. Arthur Dixon Transfer Co., 343 Ill. App. 148, 98 N.E.2d 783 (1951) (master-servant). However, in response to the harshness of the no-contribution rule, the Illinois courts expanded the traditional doctrine of implied indemnity to "passive-active" negligence cases.
Illinois decisional law expresses a strong policy in favor of the application of this rule to prevent a multiplicity of suits and to permit a determination of the rights and liabilities of all parties before a single tribunal and upon the same evidence. See People ex rel. Boyington v. Northfield Township High School District No. 225, 402 Ill. 435, 84 N.E.2d 553 (1949); Bogan v. Postlewait, 265 N.E.2d 195 (Ill.App. 1970); Muhlbauer v. Kruzel, 39 Ill.2d 226, 234 N.E.2d 790 (1968); Mierzejwski v. Stronczek, 100 Ill.App.2d 68, 241 N.E.2d 573 (1968). This would be the preferable course.
Van Jacobs v. Parikh (1981), 97 Ill. App.3d 610, 612. Classic pretort relationships which have given rise to a duty to indemnify include: lessor and lessee ( Mierzejwski v. Stronczek (1968), 100 Ill. App.2d 68); employer and employee ( Embree v. DeKalb Forge Co. (1964), 49 Ill. App.2d 85); owner and his lessee ( Blaszak v. Union Tank Car Co. (1962), 37 Ill. App.2d 12); master and servant ( Gulf Mobile Ohio R.R. Co. v. Arthur Dixon Transfer Co. (1951), 343 Ill. App. 148). In Reynolds v. Illinois Bell Telephone Co. (1964), 51 Ill. App.2d 334, and Sargent v. Interstate Bakeries, Inc. (1967), 86 Ill. App.2d 187, indemnity was permitted even though there was no pretort relationship alleged and/or proved between the third-party plaintiff and the third-party defendant.
Frazer v. A.F. Munsterman, Inc., 123 Ill.2d 245, 255, 527 N.E.2d 1248 (1988); Van Slambrouck v. Economy Baler Co., 105 Ill.2d 462, 475 N.E.2d 867 (1985). Classic pretort relationships which have given rise to a duty to indemnify include lessor and lessee ( Mierzejwski v. Stronczek, 100 Ill. App.2d 68, 241 N.E.2d 573 (1968)), employer and employee ( Embree v. DeKalb Forge Co., 49 Ill. App.2d 85, 199 N.E.2d 250 (1964)), owner and his lessee ( Blaszak v. Union Tank Car Co., 37 Ill. App.2d 12, 184 N.E.2d 808 (1962)), and master and servant ( Gulf Mobile Ohio R.R. Co. v. Arthur Dixon Transfer Co., 343 Ill. App. 148, 98 N.E.2d 783 (1951)). In the instant case, Kerschner and Karlin have clearly alleged a pretort relationship with Goodman. The third-party complaint alleged that KKS retained Goodman in the summer of 1989 to provide professional advice regarding their withdrawal from Weiss Company and regarding the formation of a new accounting partnership.
We reject Staalsen's argument that section 2-406(b) limits the Duncans' right to appeal. The purpose of section 2-406(b) is to avoid multiplicity of lawsuits and the reduplication of evidence. People v. Fiorini, 143 Ill.2d 318, 574 N.E.2d 612 (1991); Mierzejwski v. Stronczek, 100 Ill. App.2d 68, 241 N.E.2d 573 (1968). Any party to a case may seek appellate review from a final judgment which is adverse to his or her interests.
To state a cause of action for implied indemnity, a third-party complaint must allege: (1) a pretort relationship between the third-party plaintiff and the third-party defendant, and (2) a qualitative distinction between the conduct of the third-party plaintiff and the third-party defendant. ( Van Slambrouck v. Economy Baler Co. (1985), 105 Ill.2d 462, 475 N.E.2d 867; Brown v. Torin Corp. (1988), 175 Ill. App.3d 544, 529 N.E.2d 1077.) Classic pretort relationships which have given rise to a duty to indemnity include: lessor and lessee ( Mierzejwski v. Stronczek (1968), 100 Ill. App.2d 68, 241 N.E.2d 573); employer and employee ( Embree v. De Kalb Forge Co. (1964), 49 Ill. App.2d 85, 199 N.E.2d 250); owner and his lessee ( Blaszak v. Union Tank Car Co. (1962), 37 Ill. App.2d 12, 184 N.E.2d 808); and master and servant. Gulf Mobile Ohio R.R. Co. v. Arthur Dixon Transfer Co. (1951), 343 Ill. App. 148, 98 N.E.2d 783.
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).)
In any event, this requirement is satisfied in this case because Illinois courts have recognized that a lease between the parties, as is alleged here, is sufficient to constitute a pretort relationship. See, e.g., Mierzejwski v. Stronczek (1968), 100 Ill. App.2d 68, 241 N.E.2d 573; Blaszak v. Union Tank Car Co. (1962), 37 Ill. App.2d 12, 184 N.E.2d 808. • 4 To satisfy the qualitative difference requirement, a party must demonstrate that his fault for the injuries of the original plaintiff is different in quality or nature, rather than in quantity, from that of the proposed indemnitor. ( Harris v. Algonquin Ready Mix, Inc. (1974), 59 Ill.2d 445.)
As developed by Illinois courts, the judicially created theory of ordering indemnity evolved to circumvent the harsh effect of the no-contribution rule. Mierzejwski v. Stronczek (1968), 100 Ill. App.2d 68, 75, 241 N.E.2d 573; see also Kissel, Theories of Indemnity as Related to Third Party Practice, 54 Chi. Bar Rec. 157 (1973). Third-party indemnity was traditionally allowed to a tortfeasor whose misconduct was passive in comparison to the misconduct of another tortfeasor whose wrongdoing could be characterized both as active and as the primary cause of plaintiff's injuries.
Implied indemnity classically requires some pre-tort 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).)