The Fifth District Appellate Court reversed St. Clair County
Circuit Judge Vincent Lopinot’s order granting involuntary dismissal of an
auctioneer’s claim for contractual indemnity in a wrongful death suit involving
a faulty boom truck.
Justice Judy Cates delivered the Rule 23 decision Oct. 23 in
favor of defendant Ritchie Bros Auctioneers Inc., concluding that the indemnity
provision in auction-sales documents provides indemnity for the auctioneer
Justice Melissa Chapman and Justice S. Gene Schwarm concurred.
According to the appellate decision, decedent Keven T. Ciborowski
suffered fatal injuries on Sept. 21, 2011, while he and his coworkers were
constructing a metal tower for a grain elevator in Pinckneyville. During that
time, one of the decedent’s coworkers was using a boom truck to hoist a section
of a metal tower when safety guards on the boom and crane assembly allegedly
failed, causing the load to fall onto the decedent and injure him.
Amy Ciborowski, as administrator of the estate of Keven
Ciborowski, claims the boom truck, a 2005 Ford F650 Mechanics Truck, was on
loan to the decedent’s employer from Wedekemper’s Inc., which had purchased the
truck “as-is” from Ritchie Bros, a commercial auctioneer of vehicles and
equipment, for $47,500, at an auction in Las Vegas in November 2009.
Ritchie Bros got the truck from American Asphalt &
Grading Company one month before the auction.
Ciborowski filed a wrongful death action in December 2011.
Ritchie Bros. then filed claims against Wedekemper’s for contribution and
contractual indemnity. The contribution claim was dismissed after Lopinot found
that a settlement agreement between Wedekemper’s and Ritchie Bros. was entered
in good faith and approved it.
In its claim for contractual indemnity, Ritchie Bros alleged
that it was not a business of performing construction work, that it did not
possess or retain any ownership interest in the boom truck after the sale to
Wedekemper’s and that Wedekemper’s has been the sole owner of the truck since
Ritchie Bros. also claims that the Bidder’s Registration
Agreement and the Listing Catalog contain an express indemnity provision; and
that in accordance with the express indemnity provision, Ritchie Bros. was
entitled to full indemnity from Wedekemper’s for any and all actions and
damages arising from use of the boom truck.
Wedekemper’s then filed a motion for involuntary dismissal
of the indemnity claim, arguing that it only applied to incidents that occurred
at the auction sale or the auction site, that any ambiguities in the indemnity
provision must be construed against Ritchie Bros. and that the indemnity
provision is unenforceable because it does not expressly state that Ritchie
Bros. would be indemnified for its own negligence.
Lopinot granted Wedekemper’s motion to dismiss, but did
provide a basis for his ruling. Ritchie Bros.'s motion to reconsider the ruling
Ritchie Bros. and the plaintiff agreed to settle the strict
liability count and the plaintiff agreed to voluntarily dismiss all other
counts against the defendant.
Ritchie Bros. then appealed, arguing that the trial court
erred in dismissing its indemnity claim.
Cates wrote that the question here is whether the decedent’s
accident is covered within the scope of the indemnity provision.
“Reading the indemnity provision as written, and considering
it within the context of the Bidder’s Registration Agreement and Listing
Catalog, we find that the provision clearly states that a bidder will agree to
indemnify Ritchie Bros. in two types of situations.”
“The first is where an action or loss results from the
purchase or use of the item purchased. The second is where the action or loss
results from the attendance of and participation by the bidder at the auction
site before, during, or after the auction sale,” the appellate decision states.
Therefore, the court found that the incident at issue fits
within the scope of the indemnity provision.
Further, the appellate court also found that while the
indemnity clause does not afford Ritchie Bros. indemnity for its own negligence,
Wedekemper’s “failed to establish the existence of affirmative matters that
avoid the legal effect of or defeat Ritchie Bros.'s claim for contractual
Therefore, the trial court erred in granting Wedekemper’s motion
for voluntary dismissal, Cates wrote.
The case was reversed and remanded for further proceedings.
St. Clair County
Circuit Court case number 11-L-674