Brown v. Target Corporation

Filing 149

MEMORANDUM Opinion and Order: The Court denies Target Corporation's motion for partial summary judgment 99 . Signed by the Honorable George M. Marovich on 10/22/2013.Mailed notice(clw, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ANGELA BROWN,

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Plaintiff,
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v.
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TARGET CORPORATION,
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Defendant.
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____________________________________)
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TARGET CORPORATION,
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Third-party plaintiff,
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v.
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HARBOR INDUSTRIES, INC., and
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LANKFORD CONSTRUCTION
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COMPANY,
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Third-party defendants.
)

No. 12 C 3036
Judge George M. Marovich

MEMORANDUM OPINION AND ORDER
After she was allegedly hit on the head by a dressing-room door that had fallen off its
hinges, plaintiff Angela Brown (“Brown”) filed in the Circuit Court of Cook County her
negligence suit against defendant Target Corporation (“Target”). Target removed the case to this
Court and filed a third-party complaint against third-party defendants Harbor Industries, Inc.
(“Harbor”) and Lankford Construction Company (“Lankford”). Target has filed a motion for
partial summary judgment with respect to Count II of its third-party complaint against Harbor.
In that count, Target alleges that Harbor has a duty to defend and indemnify it with respect to
Brown’s claims against it. For the reasons set forth below, the Court denies Target’s motion.

I.

Background
Local Rule 56.1 outlines the requirements for the introduction of facts parties would like

considered in connection with a motion for summary judgment. The Court enforces Local Rule
56.1 strictly. Facts that are argued but do not conform with the rule are not considered by the
Court. For example, facts included in a party’s brief but not in its statement of facts are not
considered by the Court because to do so would rob the other party of the opportunity to show
that such facts are disputed. Where one party supports a fact with admissible evidence and the
other party fails to controvert the fact with citation to admissible evidence, the Court deems the
fact admitted. See Ammons v. Aramark Uniform Services, Inc., 368 F.3d 809, 817-818 (7th Cir.
2004). This does not, however, absolve the party putting forth the fact of its duty to support the
fact with admissible evidence. See Keeton v. Morningstar, Inc., 667 F.3d 877, 880 (7th Cir.
2012). Asserted “facts” not supported by deposition testimony, documents, affidavits or other
evidence admissible for summary judgment purposes are not considered by the Court.
The following facts are undisputed unless otherwise noted.
On December 17, 2011, plaintiff Angela Brown was hit on the head by a fitting-room
door when she attempted to exit a fitting room in the Target store located at 6601 Grand Avenue
in Gurnee, Illinois (the “Gurnee store”).
Before that date, Target had contracted with Harbor to design and provide materials for
the construction of fittings rooms at the Gurnee store. The contract was called the “Program
Agreement for Fitting Rooms” and incorporated by reference a prior agreement called the
“Supplier Qualification Agreement.” The Supplier Qualification Agreement, in turn, stated,
among other things:

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Supplier shall indemnify, defend and hold harmless Target, its affiliates, and their
respective directors, officers, shareholders, employees, contractors, and agents
(“the Target Parties”), from and against any liabilities, losses, claims, suits
damages, costs and expenses (including without limitation reasonable attorneys’
fees and expenses) (each a “Claim”) arising out of or otherwise relating to the
subject matter of this Agreement, Supplier’s performance or failure to perform as
required by this Agreement, Supplier’s acts or omissions, or Supplier’s failure to
comply with any of the Supplier’s representations or warranties contained in this
Agreement. Any attorney selected by Supplier to defend Target Parties must be
reasonably satisfactory to Target. Supplier may not settle a Claim (in whole or in
part) without Target’s prior written consent.
(Supplier Qualification Agreement at 4) (emphasis added). Harbor is the “Supplier” in the
contract. The contract also states, “The laws of the State of Minnesota, without regard to
Minnesota’s choice of law principles, govern all matters arising out of or related to this
Agreement.” (Supplier Qualification Agreement at 6).
II.

Standard on a motion for summary judgment
Summary judgment shall be granted when “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When
making such a determination, the Court must construe the evidence and make all reasonable
inferences in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247 (1986). Summary judgment is appropriate, however, when the non-moving party “fails to
make a showing sufficient to establish the existence of an element essential to the party’s case,
and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). “A genuine issue of material fact arises only if sufficient evidence favoring the
nonmoving party exists to permit a jury to return a verdict for that party.” Brummett v. Sinclair
Broadcast Group, Inc., 414 F.3d 686, 692 (7th Cir. 2005).

III.

Discussion
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In Count II of its third-party complaint, Target alleges that Harbor must defend and
indemnify it with respect plaintiff Brown’s claim that Target was negligent. In moving for
summary judgment with respect to Count II, Target argues that the language of the
indemnification clause is broad enough to cover Target’s own negligence. Harbor disagrees.
Harbor argues that the indemnification clause is not sufficient, under Minnesota law, to cover
Target’s own negligence. Alternatively, Harbor argues that the contract is a construction
contract, subject to the Minnesota and/or Illinois statutes that barring from construction contracts
clauses in which a party is indemnified for its own negligence.
This federal court, which is sitting in diversity, applies the choice-of-law rules of Illinois-its forum state. Hinc v. Lime-O-Sol Co., 382 F.3d 716, 719 (7th Cir. 2004). Illinois law
respects a choice-of-law provision in a contract, so long as the chosen law is not “‘contrary to
Illinois’s fundamental public policy.’” Tradesmen Int’l, Inc. v. Black, 724 F.3d 1004, 1012 (7th
Cir. 2013) (quoting Thomas v. Guardsmark, Inc., 381 F.3d 701, 705 (7th Cir. 2004)). The
contract at issue in this case contains a clause that states it will be governed by the laws of the
state of Minnesota. Accordingly, this Court will apply Minnesota law.
Minnesota courts will enforce clauses to indemnify the indemnitee for its own negligence
under some, but not all, circumstances. As the Supreme Court of Minnesota has explained:
Agreements seeking to indemnify the indemnitee for its own negligence are not
favored by the law and are not construed in favor of indemnification unless such
intention is expressed in clear and unequivocal terms, or unless no other meaning
can be ascribed to it.
Yang v. Voyagaire Houseboats, Inc., 701 N.W.2d 783, 791 (S.Ct. Minn. 2005) (quoting National
Hydro. Sys. v. MA Mortenson Co., 529 N.W.2d 690, 694 (Minn. 1995)). In Yang, the Supreme

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Court of Minnesota was considering an indemnity clause that said, “[third-party defendant] shall
indemnify and hold harmless [third-party plaintiff] from and against all claims, actions,
proceedings, damage and liabilities, arising from or connected with [third-party defendant’s]
possession, use and return of the boat, or arising at any time during the term of this rental.”
Yang, 701 N.W.2d at 791(emphasis added). The Supreme Court of Minnesota rejected the
argument that this (and one other) indemnification clause was clear enough to cover the
indemnitee’s own negligence. The court explained:
[W]e also determine that the indemnification clauses are not enforceable because
the language is not clear and unequivocal. Strictly construed, the indemnification
clauses do not contain language that (1) specifically refers to negligence, (2)
expressly states that the renter will indemnify [third-party plaintiff] for [thirdparty plaintiff’s] negligence, or (3) clearly indicates that the renter will indemnify
[third-party plaintiff] for negligence occurring before the renter took possession
of the houseboat.
* * *
We reject the court of appeals’ suggestion that the requirement of clear and
unequivocal language concerning the scope of the indemnification clause applies
only in the context of building and construction contracts.
Yang, 701 N.W.2d at 792 n. 5 (internal citations omitted). Although the language in the contract
in Yang was not clear and unequivocal, Minnesota courts have enforced contracts that included
indemnification clauses for a party’s own negligence where the language was clear and
unequivocal. See Lake Cable Partners v. Interstate Power Co., 563 N.W.2d 81, 86 (Ct.App.
Minn. 1997) (collecting cases). For example, in Lake Cable, the court enforced a contract that
said the defendant would indemnify the plaintiff for negligence “‘including negligence on the
part of [plaintiff] or claimed on the part of [plaintiff],’” because the court concluded that “this
language conveys the clear intent that [plaintiff] be indemnified for its own negligence.” Lake
Cable, 563 N.W.2d at 86.

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In this case, in arguing that the contract requires Harbor to indemnify Target for Target’s
own negligence, Target points to the portion of the contract that requires Harbor to indemnify
Target for claims “arising out of or otherwise relating to the subject matter of this Agreement.”
Target believes this language is broad enough to require Harbor to indemnify Target for its own
negligence. This language, however, is very similar to the language the Supreme Court of
Minnesota rejected in Yang. Nothing in the clause mentions negligence or that Harbor must
indemnify Target for Target’s own negligence. Accordingly, the contract does not clearly and
unequivocally require Harbor to defend and/or indemnify Target for Target’s own negligence,
and Target’s argument fails as a matter of Minnesota law.
Because this Court has concluded that, as a matter of Minnesota law, the language of the
indemnification clause does not require Harbor to indemnify Target for Target’s own negligence,
the Court need not consider Harbor’s alternative argument that the indemnification clause is
barred by the Illinois and/or Minnesota statutes that forbid such clauses in construction contracts.
Target has not shown that it is entitled to judgment as a matter of law, so its motion for
partial summary judgment with respect to Count II is denied.

IV.

Conclusion

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For the reasons set forth above, the Court denies Target’s motion for partial summary
judgment.
ENTER:

George M. Marovich
United States District Judge
DATED: October 22, 2013

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