What Is The Nature of An Easement for Construction...
In an interesting case which has applied the Illinois
Supreme Court's recent Buenz decision, the appellate court found that an
ordinance which included an indemnification provision would be read to apply
against Nicor in favor of the Village of Wilmette where the ordinance the city passed
granting a fifty year easement to Nicor to "place, maintain and operate its gas
pipes under the streets of Wilmette, in consideration for which Nicor would provide
gas for use by the Village." While the
court properly applied Buenz, it summarily dismissed an issue that likely should
have garnered more attention: The Illinois
Construction Contract Indemnification for Negligence Act (740 ILCS 35/1 et
seq.) The court simply states that Nicor's
authority for the proposition does not apply, but fails to offer any merit to
the idea or state why it doesn't apply. By invoking Buenz, using the term "consideration" and even
allowing the Village to argue that "its contract with Nicor included a
provision indemnifying" the village for its own negligence... (See page 3 of the opinion) certainly we have
a contract. Whether it's a contract for
an easement or whether the contract can be said to touch on issues implicated
by the anti-indemnification statute should have been explored by the
court. Or, if the court wanted to say
that a contract for an easement, no matter what the activities allowed under
the easement are, should not be construed as a contract or agreement for
construction... then it should have done so.
Instead, we are left to wonder exactly what the rational for not applying
the statute to the agreement between Nicor and Wilmette that includes
maintenance of the wires was, when Section 1 of the anti-indemnification act
states that it applies to contracts or agreements:
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"With respect to contracts or agreements, either public or private, for the construction, alteration, repair or maintenance of a building, structure, highway bridge, viaducts or other work dealing with construction, or for any moving, demolition or excavation connected therewith, every covenant, promise or agreement to indemnify or hold harmless another person from that person's own negligence is void as against public policy and wholly unenforceable."
