Wilda v. JLG Industries, Inc.
Filing
366
MEMORANDUM Opinion and Order Signed by the Honorable Steven C. Seeger on 7/2/2020. For the foregoing reasons, Defendant JLG's cross-motion for summary judgment (Dckt. No. 217 ) is granted in part and denied in part. Third-Party Defendant Illi ni Hi-Reach's motion for summary judgment (Dckt. No. 178 ) is hereby denied. Third-Party Plaintiff Illini Hi-Reach, Inc.'s cross-motion for summary judgment against Area Erectors (Dckt. No. 202 ) is denied. The Court also denies Third-Party Defendant Area Electors, Inc.'s amended motion for summary judgment against Illini Hi-Reach. (Dckt. No. 147 ) Mailed notice. (jjr, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PATRICK R. WILDA, individually, and
as independent administrator of the
ESTATE OF PATRICK C. WILDA,
deceased,
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Plaintiff,
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v.
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JLG INDUSTRIES, INC.,
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Defendant.
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____________________________________)
Case No. 16-cv-10088
Hon. Steven C. Seeger
JLG INDUSTRIES, INC.,
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Third-Party Plaintiff,
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v.
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ILLINI HI-REACH, INC.,
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Third-Party Defendant.
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____________________________________)
ILLINI HI-REACH, INC.,
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Third-Party Plaintiff,
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v.
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AREA ERECTORS, INC.,
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Third-Party Defendant.
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____________________________________)
MEMORANDUM OPINION AND ORDER
This case involves a dispute about who will pay for a construction accident. Patrick C.
Wilda suffered fatal injuries while working on a manlift to build a roof. His estate sued the
manufacturer of the manlift, JLG Industries, for wrongful death and survival. JLG then filed a
Third-Party Complaint against Illini Hi-Reach, the distributor of the manlift. Illini Hi-Reach, in
turn, filed a Third-Party Complaint of its own against Area Erectors, the employer of the
decedent.
The parties filed four motions for summary judgment. JLG and Illini Hi-Reach filed
cross motions for summary judgment, and so did Illini Hi-Reach and Area Erectors. Each pair of
motions involves a dispute about an indemnification provision in their respective contracts. JLG
seeks indemnification from Illini Hi-Reach, and Illini Hi-Reach seeks indemnification from Area
Erectors.
The Court concludes that JLG is entitled to indemnification from Illini Hi-Reach under
their agreement, and thus grants JLG’s motion for summary judgment and denies Illini HiReach’s motion for summary judgment against JLG. The Court denies the cross motions for
summary judgment filed by Illini Hi-Reach and Area Erectors. Illini Hi-Reach relies on an
indemnification provision in their agreement, but there is a genuine issue of material fact about
whether Area Erectors ever received the second page of the contract with the indemnification
provision. A jury needs to decide whether Area Erectors received a copy of the page with the
indemnification provision.
Background
Patrick Wilda was an ironworker for Area Erectors, a construction company. See Illini
Hi-Reach’s Resp. to Area Erectors’s Amended Rule 56.1(a)(3) Statement of Undisputed Material
Facts, at ¶ 5 (Dckt. No. 222); JLG’s Resp. to Illini Hi-Reach’s Statement of Material Facts, at ¶ 2
(Dckt. No. 216); see also Area Erectors, Inc., https://www.areaerectors.com (last visited July 1,
2020) (describing itself as a “structural steel and precast concrete erection service[]”). Wilda
started working for the company in September 2014 at its construction site in Wilmington,
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Illinois. See Illini Hi-Reach’s Resp. to Area Erectors’s Amended Rule 56.1(a)(3) Statement of
Undisputed Material Facts, at ¶ 6 (Dckt. No. 222).
The accident took place while Wilda was working on a manlift. As the name suggests, a
manlift is a “self-propelled hydraulic personnel lift equipped with a work platform on the end of
an elevating and rotating boom.” See Illini Hi-Reach’s Resp. to JLG’s Additional Statement of
Material Facts, at ¶ 17 (Dckt. No. 229).
JLG manufactured the manlift in question. See id. at ¶ 14; Illini Hi-Reach’s Resp. to
Area Erectors’s Amended Rule 56.1(a)(3) Statement of Undisputed Material Facts, at ¶ 1 (Dckt.
No. 222). JLG delivered the manlift to Illini Hi-Reach, one of its distributors. See Illini HiReach’s Resp. to Area Erectors’s Amended Rule 56.1(a)(3) Statement of Undisputed Material
Facts, at ¶ 2 (Dckt. No. 222); Illini Hi-Reach’s Resp. to JLG’s Additional Statement of Material
Facts, at ¶¶ 14–15 (Dckt. No. 229). Illini Hi-Reach is a rental business that rents and sells aerial
lift equipment. See JLG’s Resp. to Illini Hi-Reach’s Statement of Material Facts, at ¶ 4 (Dckt.
No. 216); Area Erectors’s Resp. to Illini Hi-Reach’s Rule 56.1 Statement of Additional Material
Facts, at ¶ 4 (Dckt. No. 234). The two companies have a long-running business relationship.
Illini Hi-Reach became a distributor of JLG equipment in 2000. See JLG’s Resp. to Illini HiReach’s Statement of Material Facts, at ¶ 17 (Dckt. No. 216); Illini Hi-Reach’s Resp. to JLG’s
Additional Statement of Material Facts, at ¶ 2 (Dckt. No. 229).
JLG and Illini Hi-Reach entered into a rental purchase option agreement (the “RPO
Agreement”) for the manlift at issue.1 See JLG’s Resp. to Illini Hi-Reach’s Statement of
JLG and Illini Hi-Reach call their agreement the “Rental Purchase Option Agreement,” or the “RPO
Agreement,” even though the contract seems to be called a “Rental Out” Agreement. See Dckt. No. 49-2;
Dckt. No. 218-10. Still, Illini Hi-Reach and Area Erectors entered into a contract, too, and they call their
agreement the “Rental Out” Agreement. So, in the interest of clarity, the Court will adopt the parties’
terminology. The agreement between JLG and Illini Hi-Reach is the “RPO Agreement,” and the
agreement between Illini Hi-Reach and Area Erectors is the “Rental Out Agreement.”
1
3
Material Facts, at ¶ 5 (Dckt. No. 216); Illini Hi-Reach’s Resp. to JLG’s Additional Statement of
Material Facts, at ¶¶ 8–9 (Dckt. No. 229). The agreement included an indemnification provision
that required Illini Hi-Reach to indemnify and defend JLG for certain damages arising from the
manlift. See Illini Hi-Reach’s Resp. to JLG’s Additional Statement of Material Facts, at ¶ 11
(Dckt. No. 229); RPO Agreement, at 2 (Dckt. No. 49-2).
Illini Hi-Reach, in turn, rented the manlift to Area Erectors to use at its Wilmington
jobsite. See JLG’s Resp. to Illini Hi-Reach’s Statement of Material Facts, at ¶ 3 (Dckt. No. 216);
Area Erectors’s Resp. to Illini Hi-Reach’s Rule 56.1 Statement of Additional Material Facts, at
¶ 3 (Dckt. No. 234). Illini Hi-Reach delivered the manlift to the construction site on September
26, 2014, shortly after Wilda joined Area Erectors. See Illini Hi-Reach’s Resp. to Area
Erectors’s Amended Rule 56.1(a)(3) Statement of Undisputed Material Facts, at ¶ 3 (Dckt. No.
222).
Wilda’s accident took place on January 30, 2015. Id. at ¶¶ 11–12. The parties don’t offer
many details about what, exactly, happened. Wilda climbed aboard the manlift and elevated
himself to the roof, where he needed to bolt together steel roof joists. See Illini Hi-Reach’s Resp.
to JLG’s Additional Statement of Material Facts, at ¶ 80 (Dckt. No. 229); Area Erectors’s
Motion for Entry of Good Faith Finding, at 1–2 (Dckt. No. 150-4). He was alone. See Illini HiReach’s Resp. to JLG’s Additional Statement of Material Facts, at ¶ 80 (Dckt. No. 229).
Disaster struck. Wilda became pinned between a roof joist and the manlift’s control
panel. Id. He suffered fatal injuries. See Area Erectors’s Motion for Entry of Good Faith
Finding, at 2 (Dckt. No. 150-4); see also Illini Hi-Reach’s Resp. to Area Erectors’s Amended
Rule 56.1(a)(3) Statement of Undisputed Material Facts, at ¶ 12 (Dckt. No. 222). No one
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witnessed the accident. See Illini Hi-Reach’s Resp. to JLG’s Additional Statement of Material
Facts, at ¶ 80 (Dckt. No. 229).
Wilda’s estate filed a wrongful death and survival suit against a number of defendants,
including JLG, in the Circuit Court of Cook County. See Illini Hi-Reach’s Resp. to Area
Erectors’s Amended Rule 56.1(a)(3) Statement of Undisputed Material Facts, at ¶¶ 13–15 (Dckt.
No. 222). The estate sued JLG for its role in manufacturing and designing an allegedly defective
manlift. Id. at ¶ 14. Three of the other named defendants – Ridge Lego Partners, LLC, Ledcor
Construction, Inc., and Construction Systems – filed a Third-Party Complaint against Area
Erectors as Wilda’s employer. Id. at ¶ 15.
The parties went to mediation and settled almost all of Wilda’s claims. Id. at ¶ 16. JLG
was the only party that did not join the settlement. Id. at ¶ 17.
As part of the settlement agreement, Wilda’s estate agreed to release Ridge Lego
Partners, Ledcor Construction, Construction Systems, and third-party defendant Area Erectors
for a total of $600,000. Id. at ¶¶ 18–19; Release and Settlement Agreement, at 2 (Dckt. No.
150-3). Area Erectors agreed to pay $240,000 of that amount to settle any claims by Wilda’s
estate. See Illini Hi-Reach’s Resp. to Area Erectors’s Amended Rule 56.1(a)(3) Statement of
Undisputed Material Facts, at ¶ 19 (Dckt. No. 222). Area Erectors agreed to waive its workers’
compensation lien, too. Id. Area Erectors also paid $160,000 to settle the third-party claims by
Ridge Lego Partners, Ledcor Construction, and Construction Systems. Id. at ¶ 20.
After the settlement, Area Erectors filed a motion for an entry of good faith under the
Illinois Joint Tortfeasor Contribution Act in state court. Id. at ¶ 21. The Act creates a statutory
right to contribution when more than two parties are liable for “the same injury to person or
property, or the same wrongful death.” See 740 ILCS 100/2. The Act also shields any tortfeasor
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who settles such a claim in good faith “from all liability for any contribution to any other
tortfeasor.” See 740 ILCS 100/2(d). Area Erectors argued that its $400,000 payment and the
waiver of its workers’ compensation lien was evidence of a good faith settlement, and that the
Circuit Court should dismiss the company “from any contribution action against it.” See Area
Erectors’s Motion for Entry of Good Faith Finding, at 3, 5 (Dckt. No. 150-4).
On October 26, 2016, the Circuit Court of Cook County dismissed Area Erectors and the
three other settling defendants. See Illini Hi-Reach’s Resp. to Area Erectors’s Amended Rule
56.1(a)(3) Statement of Undisputed Material Facts, at ¶ 22 (Dckt. No. 222); see also Dismissal
Order dated 10/26/16 (Dckt. No. 1-5). The state court found that the settlement was “entered
into in good faith pursuant to the provisions of the Illinois Joint Tortfeasor Contribution Act.”
See Dismissal Order dated 10/26/16, at ¶ 1 (Dckt. No. 1-5). At that point, JLG was the last
remaining defendant. See Illini Hi-Reach’s Resp. to Area Erectors’s Amended Rule 56.1(a)(3)
Statement of Undisputed Material Facts, at ¶ 23 (Dckt. No. 222).
JLG removed this case to federal court the very next day based on the diversity of
citizenship.2 Id. at ¶ 24; see also Notice of Removal (Dckt. No. 1). A few months later, Wilda’s
estate filed a Petition to Approve Settlement (Dckt. No. 30), even though the state court had
already approved the proposed settlement. 3 Judge Lee, the District Court Judge assigned to this
case before reassignment, granted the motion. See Order dated 1/10/2017 (Dckt. No. 33).
2
The caption of the Petition to Approve Settlement (Dckt. No. 30) filed in this federal suit includes the
three settling defendants as defendants, even though the state court already dismissed them. If they were
parties at the time of removal, they would count for purposes of diversity jurisdiction. See Tylka v.
Gerber Prod. Co., 211 F.3d 445, 448 (7th Cir. 2000); see also Trujillo v. American Bar Ass’n, 706 Fed.
App’x 868, 871 (7th Cir. 2017). But the Dismissal Order by the state court expressly dismissed Wilda’s
claims against those three defendants with prejudice. See Dismissal Order dated 10/26/16, at ¶ 2 (Dckt.
No. 1-5). So there was no apparent reason to list non-parties in the caption.
For some reason, Wilda’s estate filed the Petition to Approve Settlement (Dckt. No. 30) in federal court,
even though the state court already dismissed the three settling defendants: (1) Ridge Legal Partners,
3
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JLG was the last defendant standing, but it soon added others to the fold. See Order
dated 1/12/2017 (Dckt. No. 34). JLG filed a Third-Party Complaint against Illini Hi-Reach, the
company that rented the equipment to Area Erectors. See JLG’s Third-Party Cplt. (Dckt. No.
49). JLG seeks indemnification under its contract with Illini Hi-Reach. See id. at ¶¶ 5–15. In
the alternative, JLG seeks contribution under the Illinois Contribution Act. Id. at ¶¶ 16–20.
Illini Hi-Reach, in turn, later filed a Third-Party Complaint against Area Erectors. See
Illini Hi-Reach’s Am. Third-Party Cplt. (Dckt. No. 137). Illini Hi-Reach claims that its contract
with Area Erectors (called the “Rental Out Agreement”) requires Area Erectors to indemnify and
defend it for the claims advanced by Wilda’s estate. See id. at ¶ 23; see also Area Erectors’s
Resp. to Illini Hi-Reach’s Rule 56.1 Statement of Additional Material Facts, at ¶ 45 (Dckt. No.
234).
The Rental Out Agreement between Illini Hi-Reach and Area Erectors includes an
indemnification provision on the second page. As things stand, one of the main issues is whether
Area Erectors ever received the second page of the Rental Out Agreement (meaning the back
side of a single-sheet document).
The driver who delivered the manlift for Illini Hi-Reach was supposed to leave a copy of
the Rental Out Agreement with someone from Area Erectors. See Area Erectors’s Resp. to Illini
Hi-Reach’s Rule 56.1 Statement of Additional Material Facts, at ¶ 8 (Dckt. No. 234).4 Its
LLC; (2) Ledcor Construction, Inc.; and (3) Construction Systems, Inc. The state court found that the
settlement was “entered into in good faith pursuant to the provisions of the Illinois Joint Tortfeasor
Contribution Act.” See Dismissal Order dated 10/26/16, at ¶ 1 (Dckt. No. 1-5). So it is unclear why
Wilda’s estate sought approval from the federal court, too. Perhaps the parties wanted the Court to
approve a specific distribution of the settlement proceeds, but it is unclear why the parties needed the
Court’s blessing.
4
Although Area Erectors denies this statement – along with several others – the company doesn’t support
its denial with evidence of its own. See Area Erectors’s Resp. to Illini Hi-Reach’s Rule 56.1 Statement of
Additional Material Facts, at ¶¶ 5–8, 10, 11, 15, 19, 26, 45, 48–49 (Dckt. No. 234). Local Rule
56.1(b)(3)(B) requires the non-moving party to provide “references to the affidavits, parts of the record,
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practice was to obtain a signature on the Rental Out Agreement “from someone who is employed
by the rentor,” too. Id. at ¶ 10.
Louis Roon, the Illini Hi-Reach driver who delivered the manlift to Area Erectors, does
not remember the delivery. See Illini Hi-Reach’s Resp. to Area Erectors’s Amended Rule
56.1(a)(3) Statement of Additional Facts, at ¶ 41 (Dckt. No. 249). But there is evidence
suggesting that it occurred. There is a signature on behalf of the customer (Area Erectors) on the
agreement. See Rental Out Agreement, at 1 (Dckt. No. 137-2). Unfortunately, the signature
doesn’t clear up much, because there is a dispute about who signed it. See Illini Hi-Reach’s Rule
56.1 Statement of Additional Material Facts, at ¶¶ 24–25 (Dckt. No. 221); Area Erectors’s Resp.
to Illini Hi-Reach’s Rule 56.1 Statement of Additional Material Facts, at ¶¶ 24–25 (Dckt. No.
234); Illini Hi-Reach’s Resp. to Area Erectors’s Amended Rule 56.1(a)(3) Statement of
Additional Facts, at ¶¶ 38–39, 42–43 (Dckt. No. 249). Illini Hi-Reach suggests that Kevin
Podobinski, one of Area Erectors’s welders, signed it. See Illini Hi-Reach Rule 56.1 Statement
of Additional Material Facts, at ¶ 24 (Dckt. No. 221). That position is consistent with the
signature itself (but it is not perfectly legible). Still, Podobinski testified that it was not his
signature. See Podobinski Dep. 33:14-20 (Dckt. No. 232-6).
After delivery, there was another opportunity for Area Erectors to receive the terms and
conditions, including the indemnification provision. When Illini Hi-Reach sends its first
monthly bill to the customer, the invoice consists of a “two-sided document and contains the
same terms and conditions on the back side as on the Rental Out Agreement.” See Illini HiReach’s Rule 56.1 Statement of Additional Material Facts, at ¶ 14 (Dckt. No. 221). So, if the
driver doesn’t receive the customer’s signature upon delivery, Illini Hi-Reach will send the terms
and other supporting materials relied upon.” See Local Rule 56.1(b)(3)(B). A statement of disagreement,
without more, does not create a disputed question of fact. See Fed. R. Civ. P. 56(c).
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and conditions with the customer’s first invoice. Id. at ¶ 15. But Area Erectors offers evidence
that it received no such thing. Area Erectors points out that, instead of a two-sided document, it
received a one-sided invoice without the terms and conditions of the Rental Out Agreement. See
Area Erectors’s Rule 56.1(a)(3) Additional Facts, at ¶ 47 (Dckt. No. 237); see also 10/16/2014
Illini Hi-Reach Invoice (Dckt. No. 234-1).
After extensive discovery, the parties later filed cross motions for summary judgment
about the indemnification provision in the agreements. Basically, the questions are whether Illini
Hi-Reach must indemnify JLG, and whether Area Erectors must indemnify Illini Hi-Reach.
Legal Standard
Rule 56 provides that the Court “shall grant” summary judgment when the “movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” See Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). A genuine dispute about a material fact exists if the “evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). The substantive law controls which facts are material. Id. After
a “properly supported motion for summary judgment is made, the adverse party must set forth
specific facts showing that there is a genuine issue for trial.” Id. at 250 (internal quotations
omitted).
The Court “‘consider[s] all of the evidence in the record in the light most favorable to the
non-moving party, and [ ] draw[s] all reasonable inferences from that evidence in favor of the
party opposing summary judgment.’” Skiba v. Ill. Cent. R.R. Co., 884 F.3d 708, 717 (7th Cir.
2018) (citation omitted). The Court gives the non-moving party “the benefit of reasonable
inferences from the evidence, but not speculative inferences in [its] favor.” White v. City of
Chicago, 829 F.3d 837, 841 (7th Cir. 2016) (internal citations omitted). “The controlling
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question is whether a reasonable trier of fact could find in favor of the non-moving party on the
evidence submitted in support of and opposition to the motion for summary judgment.” Id.
When parties file cross motions for summary judgment, the Court treats the motions
“separately in determining whether judgment should be entered in accordance with Rule 56.”
Marcatante v. City of Chicago, 657 F.3d 433, 439 (7th Cir. 2011). The Court construes all facts
and draws all reasonable inferences in favor of the party against whom the motion was filed.
Indianapolis Airport Auth. v. Travelers Prop. Cas. Co. of Am., 849 F.3d 355, 361 (7th Cir.
2017); see also Kreg Therapeutics, Inc. v. VitalGo, Inc., 919 F.3d 405, 416 (7th Cir. 2019)
(“Each cross movant for summary judgment bears a respective burden to show no issue of
material fact with respect to the claim.”).
Analysis
The parties filed a pair of cross motions for summary judgment. The first pair involves
JLG and Illini Hi-Reach, and the second pair involves Illini Hi-Reach and Area Erectors.
JLG and Illini Hi-Reach filed cross motions for summary judgment on both counts of
JLG’s Third-Party Complaint. See Dckt. Nos. 178, 217. In Count I, JLG seeks indemnification
from Illini Hi-Reach (payable to JLG Service Plus, an affiliate of JLG) for any liability stemming
from the accident. See JLG Third-Party Cplt. ¶¶ 5–15 (Dckt. No. 49). JLG seeks defense costs,
too. Id. at ¶¶ 11–12. In Count II, in the alternative, JLG seeks contribution from Illini Hi-Reach
for any damages. Id. at ¶¶ 16–20.
Illini Hi-Reach and Area Erectors also filed cross motions for summary judgment under
Illini Hi-Reach’s Third-Party Complaint. See Dckt. Nos. 147, 202. Illini Hi-Reach doesn’t
break out its claims into separate counts. But it seeks indemnification and defense costs from
Area Erectors for any liability arising from Wilda’s accident. See Illini Hi-Reach’s Third-Party
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Cplt. ¶ 23 (Dckt. No. 137). Illini Hi-Reach also claims that Area Erectors was required to
maintain liability insurance that covered both companies. Id. at ¶ 25.
Only Area Erectors discusses choice of law in its brief (and only in passing). See Area
Erectors’s S.J. Brf., at 2 (Dckt. No.149). The company concludes that Illinois law governs. Id.
JLG and Illini Hi-Reach do not discuss choice of law in their briefs, but they take it as a given
that Illinois law applies. See generally Illini Hi-Reach’s S.J. Brf. (Dckt. No. 179); Illini HiReach’s S.J. Brf. (Dckt. No. 220); JLG’s Am. S.J. Brf. (Dckt. No. 317). The Court does not need
to delve deeply into choice of law when the parties are on the same page about what law
governs. See Bowers v. Fed’n Internationale de l’Autombile, 489 F.3d 316, 324 n.4 (7th Cir.
2007); Speakers of Sport, Inc. v. ProServ, Inc., 178 F.3d 862, 864 (7th Cir. 1999) (“The parties
agree that the substantive issues in this diversity suit are governed by Illinois law, and we do not
look behind such agreements so long as they are reasonable[.]”); Christopoulos v. Trout, 343 F.
Supp. 3d 812, 817 n.3 (N.D. Ill. 2018) (“[T]he court need not conduct a choice of law analysis
because the parties have not conducted one or advocated for applicability of the law of a state
other than Illinois, resulting in waiver of choice of law.”). So the Court, too, applies Illinois law.
I.
JLG’s Indemnification Claim against Illini Hi-Reach (Count I)
JLG and Illini Hi-Reach each moved for summary judgment on JLG’s indemnification
claim (Count I). The parties agree that they entered into a contract (again, the RPO Agreement)
for JLG to rent or sell equipment to Illini Hi-Reach. See Illini Hi-Reach’s Statement of
Undisputed Facts, at ¶¶ 5, 7–8 (Dckt. No. 180); JLG’s Additional Statement of Material Facts, at
¶¶ 4–6 (Dckt. No. 218). The RPO Agreement includes a provision requiring Illini Hi-Reach to
indemnify JLG, and the question is whether it covers the claims brought by Wilda’s estate
against JLG. It does.
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A.
Coverage of Wilda’s Claims Against JLG
The gist of the dispute is whether the indemnification provision covers claims by Wilda’s
estate about JLG’s design of the manlift. Illini Hi-Reach’s primary argument is that the
indemnity provision of the RPO Agreement is ambiguous and should be construed in its favor.
According to Illini Hi-Reach, the agreement “fails to clearly and explicitly state that Illini HiReach has agreed to indemnify JLG for JLG’s own strict liability and negligence.” See Illini HiReach’s S.J. Brf., at 2 (Dckt. No. 179). But that’s exactly what the agreement says.
The interpretation of a contract is a question of law. U.S. ex rel. Garbe v. Kmart Corp.,
824 F.3d 632, 645 (7th Cir. 2016); Hanover Ins. Co. v. N. Bldg. Co., 751 F.3d 788, 791 (7th Cir.
2014). “Because contracts are interpreted as a matter of law, claims that turn on the
interpretation and construction of a contract, rather than on disputed material facts, are suitable
for resolution on a motion for summary judgment.” W. Bend. Mut. Ins. Co. v. Procaccio
Painting & Drywall Co., 928 F. Supp. 2d 976, 981 (N.D. Ill. 2013), aff’d on other grounds, 794
F.3d 666 (7th Cir. 2015). If the contract is unambiguous, then the plain text controls, and that is
the end of the matter. See Right Field Rooftops, LLC v. Chicago Cubs Baseball Club, LLC, 870
F.3d 682, 690 (7th Cir. 2017) (quoting Gallagher v. Lenart, 226 Ill. 2d 208, 233, 314 Ill. Dec.
133, 874 N.E.2d 43 (2007)) (“A court must initially look to the language of a contract alone, as
the language, given its plain and ordinary meaning, is the best indication of the parties’ intent.”);
Utility Audit, Inc. v. Horace Mann Serv. Corp., 383 F.3d 683, 687 (7th Cir. 2004) (“Under
Illinois law, . . . contract terms are interpreted according to their plain meaning unless otherwise
defined.”); Kallman v. Radioshack Corp., 315 F.3d 731, 735 (7th Cir. 2002) (quoting Church v.
General Motors Corp., 74 F.3d 795, 799 (7th Cir. 1996)) (“If the language [of the contract]
unambiguously answers the question at issue, the inquiry is over.”).
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When the parties dispute the meaning of a provision, “the threshold issue is whether the
contract is ambiguous.” Bright Horizons Children’s Ctrs., LLC v. Riverway Midwest II, LLC,
403 Ill. App. 3d 234, 247, 341 Ill. Dec. 883, 931 N.E.2d 780 (2010). Illinois courts apply the
“four corners rule,” meaning that a court should look only at the contract’s language to determine
if an ambiguity exists. Air Safety, Inc. v. Teachers Realty Corp., 185 Ill. 2d 457, 463, 236 Ill.
Dec. 8, 706 N.E.2d 882 (1999). A contract is ambiguous if it is “susceptible to more than one
meaning or is obscure in meaning through indefiniteness of expression.” Bright Horizons
Children’s Ctrs., 403 Ill. App. 3d at 247 (cleaned up). A contract is not ambiguous, however,
just because the parties disagree about what it means. Id.; see also Thompson v. Gordon, 241 Ill.
2d 428, 443, 349 Ill. Dec. 936, 948 N.E.2d 39 (2011). Extrinsic evidence matters only if a
provision is ambiguous. Air Safety, 185 Ill. 2d at 462–63.
The RPO Agreement between JLG and Illini Hi-Reach includes a “Customer’s
Indemnification” provision. See RPO Agreement, at 2 (Dckt. No. 49-2). The clause provides
that Illini Hi-Reach (the Customer) will indemnify JLG ServicePlus (a JLG affiliate) for a wide
range of potential claims. The text includes a lot of expansive language, and not a lot of
exclusions:
Customer agrees to reimburse, indemnify, hold harmless and
defend, at Customer’s expense, ServicePlus, its subsidiaries, parent
companies, affiliate companies, and their agents, officers, directors
and employees, against all losses, liabilities, damages, injuries,
penalties, including, without limitations [sic], bodily injury, death,
property damage or other damage arising out of any breach of this
Agreement, Customer’s violation of any applicable regulations,
improper use, possession, operation, erection, dismantling,
servicing, or transport involving the Equipment, Customer’s
contamination of the Equipment by any party, strict liability or
negligence or failure to discover a defect, or incurred by ServicePlus
in any manner from this transaction, including claims of or liabilities
to third parties. Customer agrees to present a claim to its insurance
carrier for all such amounts and in the event Customer has no
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insurance to cover such amounts, Customer agrees to pay
ServicePlus for such amounts.
Id.
The language is a bit of a mouthful. The use of a run-on sentence, with imperfect
punctuation and without any subheadings, will probably force most readers to give it a second or
third look. It covers a long laundry list of potential claims, some of which might seem to blur
together. To help the reader, and make things easy, the Court will place brackets around
language that the Court reads as subparts. The Court reads the language as follows:
Customer agrees to reimburse, indemnify, hold harmless and
defend, at Customer’s expense, ServicePlus, its subsidiaries, parent
companies, affiliate companies, and their agents, officers, directors
and employees, against all losses, liabilities, damages, injuries,
penalties, including, without limitations [sic], bodily injury, death,
property damage or other damage[,] arising out of [1] any breach of
this Agreement, [2] Customer’s violation of any applicable
regulations, [3] improper use, possession, operation, erection,
dismantling, servicing, or transport involving the Equipment, [4]
Customer’s contamination of the Equipment by any party, [5] strict
liability or negligence or failure to discover a defect, or [6] incurred
by ServicePlus in any manner from this transaction, including
claims of or liabilities to third parties. Customer agrees to present a
claim to its insurance carrier for all such amounts and in the event
Customer has no insurance to cover such amounts, Customer agrees
to pay ServicePlus for such amounts.
Id.5 Another option is to read the phrase “arising out of” to be part of the first subpart, rather
than a phrase that precedes and thus limits all of the subparts. Like this:
Customer agrees to reimburse, indemnify, hold harmless and
defend, at Customer’s expense, ServicePlus, its subsidiaries, parent
companies, affiliate companies, and their agents, officers, directors
and employees, against all losses, liabilities, damages, injuries,
penalties, including, without limitations [sic], [1] bodily injury,
The contract does not include a comma after “damage.” Still, the Court reads “including, without
limitations [sic], bodily injury, death, property damage or other damage” as one complete phrase. That is,
Illini Hi-Reach agreed to indemnify JLG “against all losses, liabilities, damages, injuries, penalties,
including . . . arising out of” the six subparts that followed. Again, this Court’s ruling does not depend on
the existence of an implied comma. The key point is that it covers “strict liability or negligence.”
5
14
death, property damage or other damage arising out of any breach
of this Agreement, [2] Customer’s violation of any applicable
regulations, [3] improper use, possession, operation, erection,
dismantling, servicing, or transport involving the Equipment, [4]
Customer’s contamination of the Equipment by any party, [5] strict
liability or negligence or failure to discover a defect, or [6] incurred
by ServicePlus in any manner from this transaction, including
claims of or liabilities to third parties. Customer agrees to present a
claim to its insurance carrier for all such amounts and in the event
Customer has no insurance to cover such amounts, Customer agrees
to pay ServicePlus for such amounts.
Id. The latter reading is more expansive. If the list after “without limitations” is truly a list of
non-exhaustive illustrations, then the language could essentially stop after “penalties.” In that
case, the provision would cover pretty much any liability, even if it wasn’t tied to this
transaction. Even so, the Court’s holding does not turn on where the subparts begin and end –
the Court flags the point simply to make the language more comprehensible for the reader.
Illini Hi-Reach does not point to any particular word or phrase that is ambiguous. For
example, it doesn’t argue that Word X could mean either “Y” or “Z.” Instead, it offers a rule of
construction about how to interpret indemnification contracts, based on three Illinois state court
cases. Illini Hi-Reach puts forward what amounts to a clear-statement rule. It argues that
“unless the terms of the indemnity clause clearly provide that a sub-contractor is to assume the
risk of negligent manufacture . . . the indemnity clause should not be construed to include such a
risk.” See Illini Hi-Reach’s S.J. Brf., at 8 (Dckt. No. 179) (quoting Mesker Bros. Iron Co. v. Des
Lauriers Column Mould Co., 8 Ill. App. 3d 113, 116, 289 N.E.2d 223 (1972)). But relying on
cases construing other indemnification provisions is a delicate enterprise. The Illinois Supreme
Court has forewarned that it “serves no useful purpose to attempt to analyze or reconcile the
numerous cases interpreting indemnity clauses since each individual case depends upon the
particular language used and the factual setting of the case.” Buenz v. Frontline Transp. Co., 227
Ill. 2d 302, 310–11, 317 Ill. Dec. 645, 882 N.E.2d 525 (2008) (cleaned up).
15
A rule of construction doesn’t help Illini Hi-Reach’s cause because the agreement
contains sweeping language. Illini Hi-Reach agreed to indemnify JLG for “all” losses, “all”
liabilities, and “all” damages “arising out of” an enumerated list of potential claims. See RPO
Agreement, at 2 (Dckt. No. 49-2). The agreement expressly covers “strict liability or
negligence.” Id. It also covers all losses “incurred by [JLG] in any manner from this transaction,
including claims of or liabilities to third parties.” Id. The contract reaches damages from
“bodily injury” and “death,” too. Id.
The claims brought by Wilda fit comfortably within the wide boundaries of the
agreement. The Third Amended Complaint includes claims against JLG for strict liability
(Counts XIX, XXI) and negligence (Counts XX, XXII). See Third Am. Cplt. (Dckt. No. 1-2).
Illini Hi-Reach agreed to indemnify JLG for all losses involving “strict liability or negligence.”
See RPO Agreement, at 2 (Dckt. No. 49-2). So the claims in question fall squarely within the
indemnification provision. If anything, they are right down Main Street.
Illini Hi-Reach argues that it has “no obligation to indemnify JLG for the plaintiff’s strict
liability and negligence claims against it.” See Illini Hi-Reach’s S.J. Brf., at 3 (Dckt. No. 179).
But the agreement says the opposite. Illini Hi-Reach expressly agreed to indemnify JLG for
losses stemming from “strict liability or negligence.” See RPO Agreement, at 2 (Dckt. No.
49-2).
Illini Hi-Reach’s clear-statement rule (even if it applied) does not help because the
agreement is, in fact, clear and unambiguous. An agreement covering “all” losses for negligence
includes a claim for negligent manufacturing and negligent design. Id. The latter is a subset of
the former; the general category (“negligence”) covers different types of negligence. Also, an
agreement covering losses arising “in any manner” from the transaction covers the entire
16
waterfront of potential claims. Id. Losses arising “in any manner” means losses arising in any
manner from the transaction. And here, the losses arose from the rental of the equipment
because the equipment was later involved in the accident.
Illini Hi-Reach tries to shrink the boundaries of the indemnification provision, arguing
that it never agreed to indemnify JLG for the design of the manlift. See Illini Hi-Reach’s S.J.
Brf., at 8–9 (Dckt. No. 179). As Illini Hi-Reach reads it, the indemnification provision
“contemplates the use of the lift, not the manufacturer’s own design of the lift.” Id. at 9.
That’s not what the agreement says. If anything, the text suggests the opposite. The
indemnification provision expressly covers any claims about the “improper use” of the manlift.
See RPO Agreement, at 2 (Dckt. No. 49-2). But the text doesn’t stop there. It embraces other
types of claims, including “strict liability or negligence.” Id. Not merely negligence relating to
the improper use of the manlift. Negligence, period. There’s no carve-out for claims about
design, and there’s no provision limiting indemnification to claims about use.
The fact that the agreement lists other types of covered claims – above and beyond claims
about improper use – confirms that the agreement is not confined to claims about improper use.
And the fact that the agreement covers “negligence” (without more) confirms that it covers
negligence, period. The structure and the text of the indemnification provision pull in the same
direction.
Illini Hi-Reach protests that it played no role in the design of the manlift. See Illini HiReach’s S.J. Brf., at 9 (Dckt. No. 179). Maybe so, but it makes no difference. The parties
agreed to an allocation of potential liabilities. JLG agreed to rent equipment to Illini Hi-Reach,
provided that Illini Hi-Reach would be responsible for any losses. Excluding claims about
design after the fact would change the terms of the deal.
17
The Illinois Supreme Court addressed an expansive indemnification provision in Buenz v.
Frontline Transportation Co., 227 Ill. 2d 302, 317 Ill. Dec. 645, 882 N.E.2d 525 (2008). The
indemnification provision included broad language, and the parties disputed whether it covered
claims about defendant COSCO’s own negligence. The agreement itself included no such carveout:
[Frontline] shall indemnify [COSCO] against, and hold [COSCO]
harmless for any and all claims, demands, actions, suits,
proceedings, costs, expenses, damages, and liability, including
without limitation attorney’s fees, arising out of, [in] connection
with, or resulting from the possession, use, operation, or returning
of the equipment during all periods when the equipment shall be out
of the possession of [COSCO].
Id. at 306.
The Illinois Supreme Court held that the text meant what it said. The agreement used
sweeping language, and thus swept in a wide array of potential claims. The language didn’t
include an exclusion for claims about COSCO’s own negligence, so it covered claims about
COSCO’s own negligence. “This contract contains no limiting language to suggest that the
indemnity provided is not intended to cover claims resulting from COSCO’s own negligence.”
Id. at 317–18. The court emphasized that the “agreement is very broad and, considering its
common unambiguous meaning, encompasses even claims which arise out of COSCO’s
negligence.” Id. at 318.
The same principle applies here. The RPO agreement includes a sweeping
indemnification provision, and there is no carve-out for claims about JLG’s design. Wilda
brought strict liability and negligence claims against JLG, and the indemnification provision
covers strict liability and negligence. The text includes no exclusions, and it means what it says.
The plain language of the contract entitles JLG to indemnification by Illini Hi-Reach.
For some reason, JLG’s brief makes a few unnecessary arguments in favor of indemnification.
18
JLG argues that Illini Hi-Reach designed and configured the manlift. JLG also argues that Illini
Hi-Reach breached the RPO Agreement by failing to train Wilda and by failing to properly
maintain the manlift. See JLG’s Am. S.J. Brf., at 3–5, 10–14 (Dckt. No. 317).
JLG didn’t need to make these arguments to support its claim for indemnification. The
arguments seem more geared toward contribution, rather than indemnification, because they
address whether Illini Hi-Reach was at fault in some way. That reading is consistent with JLG’s
Third-Party Complaint, which alleges that JLG is entitled to contribution because Illini Hi-Reach
had a faulty design,6 failed to train Wilda, and failed to inspect and maintain the manlift. See
JLG’s Third-Party Cplt. ¶¶ 16–18 (Dckt. No. 49).
First, JLG argues that it is entitled to indemnification because Illini Hi-Reach designed
the manlift by selecting (or refusing) certain accessories. See JLG’s Am. S.J. Brf., at 3–5 (Dckt.
No. 317); see id. at 5 (“Illini decided the design and configuration of the Boom Lift. . . . As
such, JLG must be indemnified by Illini for the claims against it.”). The parties engage in a
long-winded back-and-forth on the subject. See id. at 3–5; Illini Hi-Reach’s Resp., at 5–9 (Dckt.
No. 228); JLG’s Reply, at 2, 6–9 (Dckt. No. 318). But it makes no difference. Nothing in the
agreement says that Illini Hi-Reach has to indemnify JLG if Illini Hi-Reach designed the lift.
The duty to indemnify does not depend on who designed the manlift.
Next, JLG argues that it is entitled to indemnification because Illini Hi-Reach breached
the agreement by failing to train Wilda, and by failing to service the manlift. See JLG’s Am. S.J.
Brf., at 10–14 (Dckt. No. 317). Once again, the parties spill a barrel of ink on the subject. See
id.; Illini Hi-Reach’s Resp., at 10–12 (Dckt. No. 228); JLG’s Reply, at 9–12 (Dckt. No. 318).
It might seem odd to argue that Illini Hi-Reach – the company renting the equipment from the
manufacturer – could be faulted for an improper design. Typically the manufacturer (here, JLG) designs
what it is manufacturing. But here, the argument is that Illini Hi-Reach designed the manlift because it
didn’t select a certain safety accessory.
6
19
But it is neither here nor there. Illini Hi-Reach does not have a duty to indemnify JLG because
Illini Hi-Reach breached some other contractual obligation. Instead, Illini Hi-Reach has a duty
to indemnify JLG because that’s what it agreed to do, full stop. The duty to indemnify does not
depend on whether Illini Hi-Reach breached the contract some other way.
There is one lingering issue. In addition to a duty to indemnify, JLG argues that Illini HiReach has a duty to defend JLG from the claims brought by Wilda. See JLG’s Am. S.J. Brf., at
14–16 (Dckt. No. 317). Again, the indemnification clause of the RPO Agreement provides that
Illini Hi-Reach “agrees to reimburse, indemnify, hold harmless and defend . . . [JLG] against all
losses, liabilities, damages, injuries, penalties . . . .” RPO Agreement, at 2 (Dckt. No. 49-2)
(emphasis added).
The duty to defend often arises in disputes between insurers and their insureds.7 But
Illini Hi-Reach is not an insurer, and Illinois courts recognize that “there is a fundamental
difference between insurers and non-insurers.” See Dominick’s Finer Foods, LLC v. Eurest
Servs., Inc., 2015 IL App (1st) 150369-U, ¶ 36 (2015) (discussing Ervin v. Sears, Roebuck and
Co., 127 Ill. App. 3d 982, 82 Ill. Dec. 709, 469 N.E.2d 243 (1984)). Companies like Illini HiReach lack the “specialized experience of providing insurance as an actual insurance company.”
See id. And insurance contracts are fundamentally different from contracts for the sale (or
rental) of goods. “Unlike insurance contracts, the fundamental purpose of a contract to sell
goods . . . is simply to sell goods . . . an activity that comes with its own set of obligations,
7
In the insurance context, the duty to defend is broader than the duty to indemnify. See Nat’l Cas. Co. v.
Forge Indus. Staffing Inc., 567 F.3d 871, 874 (7th Cir. 2009); see also Keystone Consol. Indus., Inc. v.
Emp’rs Ins. Co. of Wausau, 456 F.3d 758, 762 (7th Cir. 2006) (“[A]lthough the duties to defend and to
indemnify may be related, they are not necessarily mutually dependent or coextensive.”). At least one
Illinois case holds that the same principle applies to contractual indemnification, too. See Jandrisits v.
Vill. of River Grove, 283 Ill. App. 3d 152, 157, 218 Ill. Dec. 640, 669 N.E.2d 1166 (1996). Here, the
relationship between the duty to defend and the duty to indemnify makes little difference because the
contract in question expressly requires both.
20
separate and apart from the obligations of an insurer.” Id. (emphasis in original). What’s more,
courts liberally construe insurance policies in favor of the insured, but the deck is not stacked in
favor of indemnification. If anything, Illinois courts strictly construe indemnification provisions
in contracts. See FHP Tectonics Corp. v. NES Rentals Holdings, Inc., 2016 IL App (1st)
141650-U, ¶ 81 (2016).
When the duty to defend arises from an indemnity agreement, the existence of that duty
“is determined solely from the allegations of the complaint and the agreement.” Jandrisits, 283
Ill. App. at 158. In the Third Amended Complaint, Wilda’s estate brings four claims against JLG
as the manufacturer. Counts XIX and XXI allege that JLG is strictly liable for, among other
things, failing to design a safe product. See Third Am. Cplt., at 46–48, 51–53 (Dckt. No. 1-2).
Counts XX and XXII assert the same claims under a negligence theory. Id. at 49–51, 53–55.
Illini Hi-Reach signed an agreement that requires it “to reimburse, indemnify, hold
harmless and defend” JLG “against all losses, liabilities, damages, injuries, penalties,” including
“strict liability or negligence.” See RPO Agreement, at 2 (Dckt. No. 49-2). The question is
whether Illini Hi-Reach agreed to defend Area Erectors under ordinary contract principles,
without the heightened standard that applies to insurers. Dominick’s Finer Foods, 2015 IL App
(1st) 150369-U, at ¶ 36.
The analysis is straightforward. Illini Hi-Reach agreed to “indemnify, hold harmless and
defend” JLG against all losses for claims including “strict liability or negligence.” See RPO
Agreement, at 2 (Dckt. No. 49-2). Wilda sued JLG for strict liability and negligence. So Illini
Hi-Reach has a duty to defend JLG. “[R]egardless of the events at trial, as long as the
allegations in the pleadings potentially exposed [JLG] to liability, [Illini Hi-Reach] was obligated
21
to ‘defend’ [JLG].” See McNiff v. Millard Maint. Serv. Co., 303 Ill. App. 3d 1074, 1081, 239 Ill.
Dec. 802, 715 N.E.2d 247 (1999).
Illini Hi-Reach doesn’t come to terms with the plain meaning of the text. Instead, it
repeats the same arguments that it advanced against indemnification, such as the notion that the
language is ambiguous. See Illini Hi-Reach’s Resp., at 14 (Dckt. No. 228). There is nothing
ambiguous about language stating that Illini Hi-Reach “agrees to reimburse, indemnify, hold
harmless and defend, at Customer’s expense,” JLG. See RPO Agreement, at 2 (Dckt. No. 49-2).
In sum, the Court grants JLG’s motion for summary judgment on Count I of its ThirdParty Complaint, and denies Illini Hi-Reach’s motion on that claim. Illini Hi-Reach has a duty to
indemnify and defend JLG for the claims advanced by Wilda’s estate.
II.
JLG’s Contribution Claim against Illini Hi-Reach (Count II)
JLG also seeks contribution from Illini Hi-Reach in Count II of its Third-Party
Complaint. See JLG’s Third-Party Cplt. ¶¶ 16–20 (Dckt. No. 49). JLG seeks contribution “as an
alternate remedy,” meaning as an alternative to its indemnification claim. See JLG’s Am. S.J.
Brf., at 16 (Dckt. No. 317). JLG agreed to drop its demand for contribution if this Court rules in
its favor on the indemnification claim: “If JLG is awarded contractual indemnification against
Illini for all claims in this lawsuit, then JLG has no objection to this Court dismissing its
contribution claim.” Id. at 16–17.
“The remedies of contribution and indemnity are mutually exclusive, and contribution is
prohibited where a party has a right to indemnity.” Home Ins. Co. v. Cincinnati Ins. Co., 821
N.E.2d 269, 276 (Ill. 2004). This Court has ruled that Illini-Hi Reach owes indemnification to
JLG, so there is no need for a contribution claim. Accordingly, this Court dismisses Count II of
the Third-Party Complaint.
22
III.
Illini Hi-Reach’s Indemnification Claim Against Area Erectors
Illini Hi-Reach and Area Erectors filed the second pair of cross motions for summary
judgment. Those two parties, like JLG and Illini Hi-Reach, have a dispute about an
indemnification provision in a contract. Illini Hi-Reach moves for summary judgment based on
an indemnification provision in its Rental Out Agreement with Area Erectors. Area Erectors, in
turn, makes four arguments against the enforceability of the Rental Out Agreement.
First, Area Erectors argues that Illini Hi-Reach cannot rely on the indemnification
provision because of an earlier filing. Illini Hi-Reach attached a copy of the agreement to its
Third-Party Complaint. That copy had a different second page, with a different indemnification
provision, than the version of the contract that Illini Hi-Reach relies on now. Illini Hi-Reach
later filed a corrected copy of the agreement. But Area Erectors views the original filing as a
judicial admission. Area Erectors tries to pour concrete around the first-filed version. As Area
Erectors sees it, Illini Hi-Reach is stuck with the first-filed version, and can’t correct its mistake.
Second, Area Erectors argues that the Agreement is unenforceable under the statute of
frauds because it lacks a signature by an authorized agent.
Third, Area Erectors claims that it is not bound by the second page of the Agreement
because it never received a copy.
Fourth, Area Erectors argues that the Illinois Construction Contract Indemnification for
Negligence Act forecloses a claim for indemnification by Illini Hi-Reach.
In addition to indemnification, Area Erectors also makes an argument about contribution.
It suggests that it cannot be liable for contribution because it settled with Wilda’s estate, and an
Illinois statute bars contribution claims against defendants who settle in good faith.
23
The Court will address each argument in turn. The punchline is that the Court rejects the
arguments by Area Erectors, save one. There is a genuine issue of material fact about whether
Area Erectors ever received a copy of the second page of the Rental Out Agreement. So that
issue requires a jury.
A.
The Second Page of the Contract
The first question involves pinning down the second page of the contract. Illini Hi-Reach
relies on an indemnification provision that appears on the second page of the Rental Out
Agreement. But it is a different second page than the one that it originally filed. Area Erectors
claims that Illini Hi-Reach made a judicial admission when it attached a different copy of the
agreement to its Third-Party Complaint. As Area Erectors sees it, if that copy was a mistake, too
bad, because Illini Hi-Reach is stuck with it forever.
At first glance, the record might seem a bit hazy. Area Erectors flashes a bunch of
citations to deposition testimony, representing that witnesses testified that the first-filed version
was right after all. But after close inspection, there is no genuine issue of material fact about
which page was the right page. The undisputed evidence confirms that the first-filed version was
a mistake. The old second page was wrong, and the new second page is right.
Illini Hi-Reach claims that the parties entered into a Rental Out Agreement when it rented
the manlift to Area Erectors. See Illini Hi-Reach’s Third Party Cplt. Against Area Erectors
(Dckt. No. 72). That agreement was not new. Illini Hi-Reach used the same form contract for
every piece of equipment that it rented to Area Erectors from 2008 to 2014. Id. at ¶ 11.
According to the pleading, an employee or agent of Area Erectors signed the Rental Out
Agreement when Illini Hi-Reach delivered the manlift. Id. at ¶ 13.
24
Illini Hi-Reach purported to attach to the Third-Party Complaint a “true and correct
copy” of the Rental Out Agreement. Id. at ¶ 2. The purported Rental Out Agreement was two
pages long (apparently it was one piece of paper, front and back). See Rental Out Agreement
(Dckt. No. 72-2). The front page contained the general terms of the agreement, such as the
specific machine rented by Area Erectors, the duration of the rental, and the cost. The back page
contained additional terms and conditions. Id.
It was not a secret that additional terms and conditions appeared on the back page. In
fact, the first page called attention to the additional provisions, right above the signature. “The
above described Equipment has been received . . . and is accepted by CUSTOMER, subject to
the terms and conditions on the reverse side hereof, which are hereby made a part hereof by
reference as if fully set forth herein.” Id. at 1; see also Rental Out Agreement, at 1 (Dckt. No.
137-2). For good measure, the agreement repeated the point, less than an inch above the
signature line: “PLEASE READ THIS CONTRACT BEFORE SIGNING **NOTE: RENTAL
AGREEMENT TERMS & CONDITIONS ON REVERSE SIDE. (CUSTOMER TO RETAIN
COPY).” See Rental Out Agreement, at 1 (Dckt. No. 72-2).
The copy attached to the Third-Party Complaint contained an indemnification provision
on the second page. That provision was identical to the indemnification provision in the
agreement between JLG and Illini Hi-Reach. The provision stated:
Customer agrees to reimburse, indemnify, hold harmless and
defend, at Customer’s expense, ServicePlus, its subsidiaries, parent
companies, affiliate companies, and their agents, officers, directors
and employees, against all losses, liabilities, damages, injuries,
penalties, including, without limitations [sic], bodily injury, death,
property damage or other damage arising out of any breach of this
Agreement, Customer’s violation of any applicable regulations,
improper use, possession, operation, erection, dismantling,
servicing, or transport involving the Equipment, Customer’s
contamination of the Equipment by any party, strict liability or
25
negligence or failure to discover a defect, or incurred by ServicePlus
in any manner from this transaction, including claims of or liabilities
to third parties. Customer agrees to present a claim to its insurance
carrier for all such amounts and in the event Customer has no
insurance to cover such amounts, Customer agrees to pay
ServicePlus for such amounts.
Id. In fact, the entire second page of the purported agreement between Illini Hi-Reach and Area
Erectors (Dckt. No. 72-2) was identical to the second page of the agreement between JLG and
Illini Hi-Reach (Dckt. No. 49-2).
Things quickly got messy. The Third-Party Complaint purported to quote the
indemnification provision of the Rental Out Agreement. It quoted what was supposed to be
paragraph 11 of the agreement: “11. Indemnification, Risk of Loss, Insurance. Customer
shall indemnify Rentor against and hold Rentor harmless from any and all claims . . . .” See
Illini Hi-Reach’s Third Party Cplt. Against Area Erectors, at ¶ 23 (Dckt. No. 72).
That quotation was a clue that something was wrong. The copy attached to the ThirdParty Complaint didn’t include a paragraph 11. See Rental Out Agreement, at 2 (Dckt. No. 722). And the language was different, too. Again, the indemnification provision in the attached
page began: “Customer agrees to reimburse, indemnify, hold harmless and defend, at
Customer’s expense, ServicePlus . . . .” See Rental Out Agreement, at 2 (Dckt. No. 72-2).
There is a more basic problem. The provision in the attached page required the Customer
(Area Erectors) to reimburse “ServicePlus,” not Illini Hi-Reach. Id. ServicePlus is a subsidiary
of JLG (the manufacturer). Why would Area Erectors agree to indemnify JLG when it entered
into a contract with Illini Hi-Reach? Wouldn’t it make more sense for Area Erectors to agree to
indemnify Illini Hi-Reach, given that Illini Hi-Reach is the other party to the contract? And how
could Illini Hi-Reach take advantage of a provision requiring indemnification of JLG, not Illini
26
Hi-Reach? Why would Illini Hi-Reach sue under an indemnification provision when the
provision covers someone else?
The page in question contained lots of other textual clues that it did not fit in a contract
between Illini Hi-Reach and Area Erectors. There were many references to JLG (that is,
ServicePlus), a non-party to the agreement. For example, “Rentals are F.O.B. JLG Equipment
Services Inc.’s d.b.a. Service Plus,[] branch.” Id. (extra comma omitted). Placement of the
equipment “at ServicePlus’ branch” constituted “transfer of all risk of loss to Customer.” Id.
The Customer – again, Area Erectors – agreed to “pay ServicePlus, on demand, all rental time,
mileage, service . . . .” Id. ServicePlus was entitled to a lien against the Customer for late
payments. Id. The Customer “represents and warrants to ServicePlus that any person operating
the Equipment has been fully trained and qualified in the proper safe use thereof.” Id. And so
on.
It would be odd to include so many references to JLG when JLG wasn’t a party to the
contract between Illini Hi-Reach and Area Erectors. And it would be strange to omit any
reference to Illini Hi-Reach, one of the parties. If that page were the right second page (meaning
the second page attached to an agreement between Illini Hi-Reach and Area Erectors), then the
“Customer” would be Area Erectors, and there would be no reference to Illini Hi-Reach at all.
At some point, Illini Hi-Reach figured out that there was a problem. It filed a motion to
substitute exhibits, claiming that it mistakenly filed the wrong second page. See Dckt. No. 113.
According to the motion, the second page of the original-filed version was the second page of the
contract between JLG and Illini Hi-Reach, not the second page of the contract between Illini HiReach and Area Erectors. Id. at ¶ 4.
27
Judge Lee granted the motion, and gave Illini Hi-Reach leave to file an amended
complaint. See Order dated 8/14/18 (Dckt. No. 136). Judge Lee foreshadowed that Illini HiReach might oppose Area Erectors’s motion for summary judgment by relying on the later-filed
version: “So it seems to me that on the motion for summary judgment, in opposition to Area
Erectors’s motion for summary judgment, Illini Hi-Reach can try to create an issue of material
fact by citing to Mr. Grey’s deposition and saying, look, right, there is an issue of material fact as
to what was in the back side of this document.” See 8/14/18 Tr., at 10 (Dckt. No. 364).
Illini Hi-Reach then filed an amended pleading and attached a second, corrected copy of
the Rental Out Agreement. See Illini Hi-Reach Am. Third Party Cplt. (Dckt. No. 137); Rental
Out Agreement (Dckt. No. 137-2). It included a different second page. This time, the copy of
the Rental Out Agreement contained an indemnification provision that matched the language
quoted in the pleading (that is, it contained paragraph 11). See Rental Out Agreement, at 2
(Dckt. No. 137-2).
In its motion for summary judgment, Illini Hi-Reach relies on the indemnification
provision in the second version of the Rental Out Agreement. See Illini Hi-Reach’s S.J. Brf., at
18–19 (Dckt. No. 220). The paragraph begins with the following language:
11. Indemnification, Risk of Loss, Insurance. Customer shall
indemnify Rentor against and hold Rentor harmless from any and
all claims, actions, damages (including reasonable attorney’s fees
and expenses), obligations, liabilities and liens (including any of the
foregoing arising or imposed without Rentor’s fault or negligence,
or under the doctrine of “strict liability”), arising out of the lease,
possession, operation, condition, return or use of Equipment or by
operation of law. . . . Customer shall bear all risk of loss to or arising
from or related to the Equipment or the use, possession or operation
thereof including, without limitation, bodily injury and death, and
Customer shall procure property damage insurance against all risks
from every cause whatsoever . . . .
28
See Rental Out Agreement, at 2 (Dckt. No. 137-2). Illini Hi-Reach argues that this provision
requires Area Erectors to provide indemnification and defense costs related to the accident. See
Illini Hi-Reach’s S.J. Brf., at 8–12 (Dckt. No. 220).
Out of the gate, Area Erectors attempts to take advantage of the fact that Illini Hi-Reach
is relying on the second version of the agreement, not the first-filed version. See generally Area
Erectors’s S.J. Brf., at 20–21 (Dckt. No. 149). Area Erectors thinks that the filing of the original
version was a judicial admission, and that Illini Hi-Reach is bound forever to the original
version. As Area Erectors sees it, Illini Hi-Reach is out of luck.
The Court finds that attaching the wrong exhibit is not a judicial admission. In general,
“judicial admissions are formal concessions in the pleadings . . . that are binding upon the party
making them,” and thus judicial admissions “have the effect of withdrawing a fact from
contention.” Keller v. United States, 58 F.3d 1194, 1198 n.8 (7th Cir. 1995). The doctrine has
its place. But it is not a vehicle for playing gotcha, either. Abruptly declaring that there is a
judicial admission – especially when there is an apparent mistake – would interfere with the
overriding truth-seeking function of litigation. A number of considerations come into play in
litigation, but finding the truth is at the top of the list.
Even if attaching the wrong exhibit was a judicial admission, the Court has the discretion
to relieve a party of a judicial admission. “A judicial admission is conclusive, unless the court
allows it to be withdrawn.” Id.; see also Solon v. Gary Cmty. Sch. Corp., 180 F.3d 844, 858 (7th
Cir. 1999); Mopex, Inc. v. Barclays Glob. Inv’rs, N.A., 2003 WL 880996, at *2 (N.D. Ill. 2003).
“[A] court, unquestionably, has the right to relieve a party of his judicial admission if it appears
that the admitted fact is clearly untrue and that the party was laboring under a mistake when he
made the admission.” McCaskill v. SCI Mgmt. Corp., 298 F.3d 677, 681-82 (7th Cir. 2002)
29
(Rovner, J., concurring) (quoting New Amsterdam Cas. Co. v. Waller, 323 F.2d 20, 24 (4th Cir.
1963)). The Court will not foreclose Illini Hi-Reach from correcting a mistake.
Judicial admissions also cut both ways. In its answer to the original Third-Party
Complaint, Area Erectors denied that the attached copy – meaning the copy with the wrong page
– was a true and correct copy of the Rental Out Agreement. See Area Erectors’s Answer to Illini
Hi-Reach’s Third Party Cplt., at ¶¶ 2, 22 (Dckt. No. 79). If anything, that statement is a stronger
admission than what Illini Hi-Reach did. Illini Hi-Reach attached a wrong page, but Area
Erectors typed out text and made a statement of its own. But now, Area Erectors tries to rely on
the first-filed version even though it previously denied that it was an authentic copy.
There needs to be a neutral rule that applies to both parties equally. If a party can’t get
out of a statement in a pleading about the original-filed version of the agreement, then that rule
applies to Area Erectors, and Area Erectors can’t argue that the original version is the right
version.8 The better approach is simple: the parties did not make judicial admissions about the
first-filed version of the agreement.
So Illini Hi-Reach is not bound by the copy of the agreement that it originally filed. Still,
there is a lingering question of which version is the right version. Area Erectors argues that there
was testimony that the first-filed version was the right version after all. The initial briefs were a
bit murky, see Area Erectors’s S.J. Brf., at 14–21 (Dckt. No. 149); Illini Hi-Reach’s S.J. Brf., at
8
Area Erectors could have argued that attaching a document to the pleading is an act of authentication, in
and of itself, and thus is a statement of a party opponent. See Fed. R. Evid. 801(d)(2). But Area Erectors
made no such argument, and thus it is waived. Instead, Area Erectors put all of its eggs in the judicial
admission basket.
30
12–14 (Dckt. No. 220); Area Erectors’s Resp., at 2, 20–24 (Dckt. No. 232), so the Court ordered
supplemental briefs in the hope of clearing things up.9 See Order dated 6/5/20 (Dckt. No. 359).
Illini Hi-Reach has come forward with evidence that the second version is the right
version. For example, Jamie Gray, the Vice President of Illini Hi-Reach, testified that the firstfiled version of the agreement included the wrong second page. See Gray Dep., at 15:8 – 16:16,
26:24 – 27:2, 28:3-8, 84:1-9 (Dckt. No. 363-4). Counsel later marked as an exhibit the secondfiled version of the agreement, and Gray testified that it contained the right second page. Id. at
48:10 – 49:14. The President of Illini Hi-Reach, Larry Workman, also testified that the originalfiled version was incorrect. See Workman Dep., at 108:22 – 109:20 (Dckt. No. 363-5).10
So there is admissible evidence on Illini Hi-Reach’s side of the ledger. There is
testimony that the second-filed version was the right version. Two witnesses testified that the
first-filed version of the agreement was wrong, and that the second-filed version of the
agreement was right.
Area Erectors responded that it lacks personal knowledge about which page was the right
page because it never received a copy of the contract at all. (More on that later, below). See
Area Erectors’s Supp. Resp. Brf., at 1 (Dckt. No. 361). “Area has consistently stated that prior to
this lawsuit it never received any Rental Out Agreement claimed by Illini Hi-Reach, Inc.
(‘Illini’). Since it never received the original document it can only deal with documents
The first sentence of Area Erectors’s brief declared that “it is irrelevant which document is controlling
since Area is entitled to summary judgment under either version.” See Dckt. No. 361, at 1. But it is
important to figure out the terms of the agreement. And respectfully, the question is relevant because the
Court asked. The Court asked pointed questions and directed the parties “to be concise, clear, and onpoint, and not address collateral matters.” See Order dated 6/5/20 (Dckt. No. 359). Area Erectors did not
comply, and largely went off topic.
9
10
Illini Hi-Reach also relies on testimony from the field superintendent for Area Erectors, John Thomas.
See Thomas Dep., at 37:3-24 (Dckt. No. 363-9). The witness identified the document as the Rental Out
Agreement. But the testimony did not delve into which second page was the right second page.
31
produced and authenticated by Illini . . . .” Id.; see also id. at 2 (“Area, without receiving the
original document, cannot answer what the operative Rental Out Terms [sic] Illini intended, if
any.”).
But Area Erectors insisted that four employees of Illini Hi-Reach testified at deposition
that the original version was the right version. Id. at 3–5. Area Erectors pointed to testimony
from four witnesses: Louis Roon, Jacalyn Novak, Tina Hermanek, and Diane Mayes.11 Id.; see
also Area Erectors’s S.J. Brf., at 16–18 (Dckt. No. 149). So, based on that representation, the
Court dug into the testimony. And the testimony does not live up to its billing.
For starters, counsel did not present the issue cleanly to any of the four witnesses.
Counsel did not show both versions of the agreement to any of the four witnesses, and ask them
to clarify which version was the right version. The only two witnesses who addressed that issue
squarely – Jamie Gray and Larry Workman from Illini Hi-Reach – testified that the second
version was right, and the first version was wrong. So, the testimony that counsel elicited from
the other four witnesses is of limited value because it did not confront the issue at hand.
Instead of relying on on-point testimony, Area Erectors relies on testimony about the
agreement generally. None of the four witnesses squarely addressed the issue, and none of them
testified that the first-filed version was the right version.
Louis Roon did not testify about which second page was the right second page. See Roon
Dep. (Dckt. No. 151-7). Area Erectors claims that “Roon at his deposition identified the original
Exhibit 2 of the original Third Party Complaint as the document he signed.” See Area Erectors’s
S.J. Brf., at 16 (Dckt. No. 149) (citing Roon Dep., at 13–14 (Dckt. No. 151-7)). But his
11
The Court ordered supplemental briefing because the original briefs were, respectfully, less than
entirely lucid. In its supplemental brief, Area Erectors largely disregarded this Court’s directive. Area
Erectors declared that it “will not repeat its argument and a recounting of their testimony,” and referred
this Court to its prior brief. See Area Erectors’s Supp. Resp. Brf., at 3 (Dckt. No. 361).
32
testimony on pages 13-14 of the transcript (as cited by Area Erectors) said nothing about the
second page of the agreement. And when asked about the second page, Roon testified that he
“never looks at the back” of the agreements, and he hadn’t read it in 20 years:
Q:
Okay. And if you look at the second page of that, do you
recognize that document?
A:
I never look at the back, but yeah, it looks like that’s
probably what is on the back.
Q:
Have you ever read the terms and conditions on the back?
A:
Yeah, a long time ago.
Q:
How long ago?
A:
Twenty years ago.
See Roon Dep., at 19:12-20 (Dckt. No. 151-7) (emphasis added). And 20 years ago, he “wasn’t
working for Illini. [He] was working for somebody else.” Id. at 19:23-24. So, whatever he read
20 years ago, it wasn’t an agreement involving Illini Hi-Reach, and it certainly wasn’t an
agreement between Illini Hi-Reach and Area Erectors.
In fact, Roon testified that he “actually never read Illini’s” contract. Id. at 20:4. One
wonders how Area Erectors could rely on testimony from a witness – and make a representation
about it to this Court – when the witness never even read the page in question.
Area Erectors then claims that Roon “identified the second page (back of the document),
of the original Exhibit B to the initial Complaint,” and testified that he had “no reason to believe
that it was not a complete copy of the second page.” Area Erectors’s S.J. Brf., at 16 (Dckt. No.
149). Area Erectors points to this testimony:
Q:
– the back of this? In regard to this document it calls for –
the request calls for a complete copy of the second page. Do
you have any reason to believe this is not an accurate copy
of the second page of the back side of the rental-out
agreement of Illini?
A:
No.
33
See Roon Dep., at 20:16-22 (Dckt. No. 151-7).
That testimony adds nothing. Saying “I have no reason to doubt X” does not mean “X is
true.” And saying “I have no reason to think not-X” does not mean “X is true,” either. Imagine
asking people on the street if they have any reason to doubt that the Dirksen federal courthouse is
located at 319 S. Dearborn Street. And imagine if everyone said that they have no reason to
doubt it. That’s different than a statement from a person with personal knowledge saying that
the federal courthouse is, in fact, located at 319 S. Dearborn Street. (As an aside, the courthouse
is located at 219 S. Dearborn Street.) A statement that a person has no reason to doubt X is not
the same thing as a statement that the person knows X.
The next witness, Jacalyn Novak, testified that she didn’t know which page was the right
second page. She had no idea:
Q:
In regards to the language on Exhibit 2 of 1A that we referred
to earlier, do you dispute that that’s actually the language
that is sent out by Illini to its customers?
[Objection omitted]
A:
Don’t know.
Q:
So you don’t know one way or the other whether that is the
correct language or the wrong language that’s sent out?
[Objection omitted]
A:
No.
See Novak Dep., at 42:5-17 (Dckt. No. 152-1).
The next witness, Tina Hermanek, came a little closer. She testified that she was “aware
of what is on front and back” of the Rental Out Agreements. See Hermanek Dep., at 21:20-21
(Dckt. No. 152-2). But counsel stopped short of asking her which page was the right page. Area
Erectors claims that she “emphatically identified” the first-filed version “as the one dealing with
customer identification and obligations and agreed that it was a document she has reviewed
34
through the years.” Area Erectors’s S.J. Brf., at 17 (Dckt. No. 149) (citing Hermanek Dep., at 32
(Dckt. No. 152-2)).
But the testimony underwhelms. In the transcript page in question, Hermanek testified
that the Rental Out Agreement would apply to the accident, including the general provisions on
the second page. See Hermanek Dep., at 31:14 – 32:8 (Dckt. No. 152-2). Counsel then showed
her the first-filed version, and asked her the following:
Q:
And, again, I’ll show you Exhibit 2 and I’ll ask you, is that
the document you’ve reviewed through the years?
A:
Yes.
Id. at 32:16-19.12 That testimony adds nothing. Saying that Exhibit X is a document that she has
“reviewed through the years” is not the same thing as saying that Exhibit X is the contract
between Illini Hi-Reach and Area Erectors.
Area Erectors also relies on page 47 of Hermanek’s deposition transcript, but once again,
the testimony comes up short. See Area Erectors’s Supp. Resp. Brf., at 4–5 (Dckt. No. 361).
Counsel asked the following:
Q:
Okay. Here. I can show it to you.
document, correct?
A:
Yes.
Q:
And if you look at the back of it, it has the same back,
correct?
A:
Yes.
Q:
The same verbiage. Take a moment to look at that, the
general provisions. Is that the same general provisions
you’re familiar with through the years with Illini?
A:
Yes.
12
That’s the same
Area Erectors relied on this passage in its original brief (Dckt. No. 149, at 17), but not in its
supplemental brief (Dckt. No. 361). The latter brief is more important, because this Court directed the
parties to identify any testimony that supports their position about which page was the right page.
35
See Hermanek Dep., at 47:8-18 (Dckt. No. 152-2). That testimony sheds no light. Even if “it”
and “that” referred to the first-filed version of the agreement, the witness did not confirm that the
first-filed version was correct. A statement that a document has the “same general provisions” as
other agreements “through the years” is not a statement that the document is the contract
between Illini Hi-Reach and Area Erectors.
The final witness that Area Erectors relies upon, Diane Mayes, did not testify in favor of
the first-filed version, either. Area Erectors represented that she “identifies the original
document she created regarding the equipment involved in the accident as the correct document
she created for the equipment involved in the accident.” See Area Erectors’s Supp. Resp. Brf., at
4 (Dckt. No. 361). Not so. Counsel asked another any-reason-to-doubt question:
Q:
In regards to this rental-out agreement, the back page of it
we’re talking about here, do you have any dispute or
disagreement that that, in fact, was the document that was
sent to Area Erectors for the rental of this equipment?
[Objection omitted]
A:
No.
See Mayes Dep., at 28:2-9 (Dckt. No. 152-3). Again, a statement that “I have no reason to doubt
X” does not mean “I know that X is true.”
Area Erectors had multiple opportunities to present evidence that the first-filed version of
the agreement was the correct version. See Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007)
(“[S]ummary judgment is ‘not a dress rehearsal or practice run; it is the put up or shut up
moment in a lawsuit.’”) (citation omitted). This Court expressly invited supplemental
submissions from the parties on this issue. See Order dated 6/5/20 (Dckt. No. 359). And when
the time came, Area Erectors came up empty. After going down the rabbit hole, and finding
nothing, the Court confirmed that there is no testimony supporting the notion that the first-filed
36
version was right. There is admissible evidence on only one side of the scale about which page
was the true second page.
Accordingly, this Court holds that there is no genuine issue of material fact on whether
the later-filed version is the true version. The undisputed facts reveal that the first-filed version
was a mistake, and that the second-filed version was the putative agreement between Illini HiReach and Area Erectors. This Court denies the motion for summary judgment filed by Area
Erectors to the extent that it made any argument based on the first-filed version.
B.
The Statute of Frauds
Next, Area Erectors argues that the contract is unenforceable under the statute of frauds.
The Rental Out Agreement does contain a signature, but there is some dispute about who signed
it. See Dckt. No. 137-2; see also Dckt. No. 72-2. Area Erectors argues that the Rental Out
Agreement is a nullity because it is a mystery who signed it, and whoever signed it had no
authority to bind the company.
“The purpose of the statute of frauds is to prevent a contracting party from creating a
triable issue concerning the terms of the contract – or for that matter concerning whether a
contract even exists – on the basis of his say-so alone.” Cloud Corp. v. Hasbro, Inc., 314 F.3d
289, 296 (7th Cir. 2002). The statute of frauds essentially requires some external confirmation of
the existence of a contract. See Cohabaco Cigar Co. v. U.S. Tobacco Co., 1999 WL 988805, at
*4 (N.D. Ill. 1999) (“The main purpose of the statute of frauds is to prevent parties from
becoming bound to agreements they have not made.”). The statute “exists to protect not just the
parties to a contract, but also – perhaps more importantly – to protect the fact finder from
charlatans, perjurers and the problems of proof accompanying oral contracts.” McInerney v.
Charter Golf, Inc., 176 Ill. 2d 482, 489, 223 Ill. Dec. 911, 680 N.E.2d 1347 (1997).
37
But the goal is not to create an escape hatch based on technicalities for contracts that
clearly exist, either. “The purpose of the Statute of Frauds is to prevent fraud, not facilitate it.”
Benefit Vision Inc. v. Conseco Life Ins. Co., 2014 WL 5614711, at *7 (N.D. Ill. 2014) (quoting
Crawley v. Hathaway, 309 Ill. App. 3d 486, 491, 242 Ill. Dec. 677, 721 N.E.2d 1208 (1999)).
Under Illinois law (and the UCC), a “lease contract is not enforceable by way of action or
defense unless: (a) the total payments to be made under the lease contract, excluding payments
for options to renew or buy, are less than $1,000; or (b) there is a writing, signed by the party
against whom enforcement is sought or by that party’s authorized agent, sufficient to indicate
that a lease contract has been made between the parties and to describe the goods leased and the
lease term.” See 810 ILCS 5/2A-201(1).
The first prong does not apply here. Area Erectors rented the manlift at a rate of $200 per
day, or $525 per week, or $1,450 for four weeks. See Rental Out Agreement (Dckt. No. 137-2);
see also Dckt. No. 72-2. The agreement is dated September 26, 2014, and Area Erectors was
continuing to rent the manlift when the accident happened in January 2015. No party argues that
the contract contemplated payments of less than $1,000, and the evidence is to the contrary. See
Illini Hi-Reach Invoice (Dckt. No. 234-1) (showing that Area Erectors owed $1,450 for the first
four weeks of the rental).
Area Erectors argues that the Rental Out Agreement does not satisfy the second prong,
either. The statute requires a signature “by the party against whom enforcement is sought or by
that party’s authorized agent.” See 810 ILCS 5/2A-201(1)(b). Area Erectors argues that the
identity of the signatory is shrouded in mystery. The parties debate whether Kevin Podobinski,
one of the welders for Area Erectors, signed the form at the time of delivery. See Illini Hi-Reach
Rule 56.1 Statement of Additional Material Facts, at ¶ 24 (Dckt. No. 221); Area Erectors’s Resp.
38
to Illini Hi-Reach Rule 56.1 Statement of Additional Material Facts, at ¶ 24 (Dckt. No. 234);
Area Erectors’s Rule 56.1(a)(3) Additional Facts, at ¶¶ 38–39 (Dckt. No. 237). Podobinski
testified that he didn’t sign it. See Podobinski Dep. 33:14-20 (Dckt. No. 232-6). Area Erectors
argues that it does not matter if a welder signed it, because only its president (Craig Shelton) or
vice president (Jeff Shelton) had the authority to bind the company. See Area Erectors’s Resp.,
at 11 (Dckt. No. 232).
That debate is beside the point. The statute of frauds contains an exception for goods that
are delivered and accepted. “A lease contract that does not satisfy the requirements of subsection
(1), but which is valid in other respects, is enforceable: . . . (c) with respect to goods that have
been received and accepted by the lessee.” 810 ILCS 5/2A-201(4)(c). That is, accepting the
delivery of goods – in and of itself – can verify the existence of a contract. “The UCC statute of
frauds does not require that the writing contain the terms of the contract. In fact it requires no
more than written corroboration of the alleged oral contract. Even if there is no such signed
document, the contract may still be valid ‘with respect to goods . . . which have been received
and accepted.’” Monetti, S.P.A. v. Anchor Hocking Corp., 931 F.2d 1178, 1181 (7th Cir. 1991)
(quoting UCC § 2-201(3)(c)); Andersen v. Koss, 173 Ill. App. 3d 872, 877, 123 Ill. Dec. 460, 527
N.E.2d 1098 (1988) (“[W]here the conduct which is relied upon for part performance is
consistent with the contract, such conduct is sufficient to take the contract out of the statute of
frauds even though such conduct is not inconsistent with some other dealings arguably had
between the parties.”) (citation omitted).13
13
The Seventh Circuit discussed the statute of frauds as applied to the sale of goods, but the rationale
equally applies to the leasing of goods. Either way, one party provides goods to another, and the act of
receipt and acceptance validates the existence of a contract. The lease-based provision “is modeled on
Section 2-201, with changes to reflect the differences between a lease contract and a contract for the sale
of goods.” See 810 ILCS 5/2A-201 cmt.
39
Accepting the goods corroborates the existence of a contract for the goods. “Receipt and
acceptance either of goods or of the price constitutes an unambiguous overt admission by both
parties that a contract actually exists.” 810 ILCS 5/2-201 cmt. 2.14 “Subsections 2-201(3)(a),
(b), and (c) all contemplate enforcement of certain oral contracts absent a writing. But in each of
these exceptions, a valid oral contract must be proved, plus something more. This ‘something
more’ varies in each of the exceptions, but each has this in common: it is a kind of special
indicator that a contract, albeit oral, was in fact made.” 1 James J. White & Robert S. Summers,
Uniform Commercial Code § 3:7 (6th ed. 2019). Common sense explains why accepting goods
counts. Parties do not “ordinarily confer gratuitous benefits on others, except perhaps at
Christmas or during other holidays.” Id.
That rule applies here. Area Erectors does not dispute that it received and accepted the
manlift. In fact, in its own Rule 56.1 statement, Area Erectors admits that it received the manlift
from Illini Hi-Reach and used it until Wilda’s accident. See Area Erectors’s Amended Rule
56.1(a)(3) Statement of Undisputed Material Facts, at ¶¶ 2–4 (Dckt. No. 154). Area Erectors
doesn’t contend that it rejected the manlift. Cf. UCC §§ 2-602, 606. Area Erectors admits that it
paid to rent the equipment, too. See Area Erectors’s Resp. to Illini Hi-Reach’s Rule 56.1
Statement of Additional Material Facts, at ¶ 40 (Dckt. No. 234). If there was no contract, one
wonders what Area Erectors was doing with Illini Hi-Reach’s manlift.
Area Erectors accepted delivery of the equipment. So it cannot invoke the statute of
frauds and argue that there was no agreement to rent the equipment.
14
Again, this section covers the sale of goods, not the lease of goods. But the principle is the same.
40
C.
Receipt of the Terms
Area Erectors then argues that there was no “meeting of the minds” on the terms of the
Rental Out Agreement. See Area Erectors’s Resp., at 13 (Dckt. No. 232). Once again, the
company emphasizes the lack of a signature by someone with authority. See id. at 14–15. But
more importantly, Area Erectors also argues that it never received the second page of the Rental
Out Agreement at all. So it could not have assented to terms that it never received.
“Under Illinois state law, an enforceable contract requires an offer, acceptance,
consideration, and mutual assent.” Nat’l Prod. Workers Union Ins. Trust v. Cigna Corp., 665
F.3d 897, 901 (7th Cir. 2011); see also Mannion v. Stallings & Co., 204 Ill. App. 3d 179, 186,
149 Ill. Dec. 438, 561 N.E.2d 1134 (1990) (“To meet his burden in a breach of contract action,
the plaintiff must establish an offer and acceptance, consideration, definite and certain terms of
the contract, plaintiff’s performance of all required contractual conditions, the defendant’s
breach of the terms of the contract, and damages resulting from the breach.”).
When deciding whether there is mutual assent to a contract, “the parties’ subjective
intentions are irrelevant.” Nat’l Prod. Workers Union, 665 F.3d at 901. “Secret hopes and
wishes count for nothing because the status of a document as a contract depends on what the
parties express to each other and to the world, not on what they keep to themselves.” Laserage
Tech. Cop. v. Laserage Labs., Inc., 972 F.2d 799, 802 (7th Cir. 1992) (cleaned up). Instead,
mutual assent depends on “objective evidence” at the time of contract formation. Id.
A signature often reflects mutual assent. But a signature is not the be-all and end-all for a
contract, either. “Only where signatures are an expressly-required condition-precedent of an
agreement will their absence render the contract voidable.” Testa v. Emeritus Corp., 2015 WL
5183900, at *4 (N.D. Ill. 2015). “The object of a signature is to show mutuality or assent, but
41
these facts may be shown in other ways, [such] as by acts or conduct of the parties.” Hedlund
and Hanley, LLC v. Bd. of Trs. of Cmty. Coll. Dist. No. 508, 376 Ill. App. 3d 200, 206, 315 Ill.
Dec. 1, 876 N.E.2d 1 (2007) (quoting Lynge v. Kunstmann, 94 Ill. App. 3d 689, 694, 50 Ill. Dec.
146, 418 N.E.2d 1140 (1981)).
Illini Hi-Reach offers evidence that Area Erectors assented to a contract. Area Erectors
received and paid for the use of the manlift. See Illini Hi-Reach Reply, at 3–4 (Dckt. No. 250).
The payment may be evidence that a contract existed, but it says nothing about the terms of the
contract. The fact that Area Erectors accepted the manlift doesn’t mean that it accepted all of the
terms on the second page of the Rental Out Agreement.
Illini Hi-Reach also points to the long course of dealing between the parties. Area
Erectors has rented hundreds of machines from Illini Hi-Reach over the years. See Illini HiReach’s S.J. Brf., at 8 (Dckt. No. 220); Area Erectors’s Resp. to Illini Hi-Reach’s Rule 56.1
Statement of Additional Material Facts, at ¶ 33 (Dckt. No. 234). Illini Hi-Reach implies that it
has used similar rental out agreements for past equipment rentals with Area Erectors. See Area
Erectors’s Resp. to Illini Hi-Reach’s Rule 56.1 Statement of Additional Material Facts, at ¶¶ 41–
44 (Dckt. No. 234). However, “[f]or the course of conduct to act as consent to a contract, it must
be clear that the conduct relates to the specific contract in question.” Landmark Properties, Inc.
v. Architects International-Chicago, 172 Ill. App. 3d 379, 384, 122 Ill. Dec. 344, 526 N.E.2d 603
(1998). Consenting to similar agreements does not necessarily mean that Area Erectors
consented to this particular agreement. So the course of dealing is evidence of assent – perhaps
strong evidence to a jury – but it is not dispositive evidence.
Illini Hi-Reach faults Area Erectors for “continually engag[ing] in a course of conduct
indicating acceptance of this Agreement without any dispute whatsoever, until it was asked to
42
abide by the terms of the Agreement.” See Illini Hi-Reach’s Reply, at 3 (Dckt. No. 250)
(emphasis added). But Area Erectors responds that it never saw the terms of the agreement to
begin with. See Area Erectors’s Resp., at 15 (Dckt. No. 232). So it couldn’t “dispute” what it
didn’t receive (according to Area Erectors, that is).
A party needs notice of the terms of a contract to be bound by them. “[I]f a party accepts
benefits under a contract, this conduct does not constitute acceptance of specific, written terms
unless there is evidence that the party took the benefits with knowledge of those terms.”
Mohammed v. Uber Techs., Inc., 237 F. Supp. 3d 719, 730 (N.D. Ill. 2017); see also Sgouros v.
TransUnion Corp., 817 F.3d 1029, 1036 (7th Cir. 2016) (declining to find that plaintiff’s
acceptance of benefits under a contract meant that he accepted the agreement’s terms when he
lacked notice of the terms); Trieber & Straub, Inc. v. U.P.S., Inc., 474 F.3d 379, 385 (7th Cir.
2007) (holding that a party cannot renege on a contract for its failure to read it, but cautioning
that “[i]t would be different if, for example, Trieber arranged for the shipment in a face-to-face
transaction and was never given a copy of . . . the Terms and Conditions of Service”); Halmos v.
Steiner, 1998 WL 560286, at *4 (N.D. Ill. 1998) (“defendants have not presented any evidence to
support their assertion that the plaintiff must have received the contract.”); Lundin v. Egyptian
Const. Co., Inc., 29 Ill. App. 3d 1060, 1064, 331 N.E.2d 208 (1975) (“Plaintiffs have offered no
evidence that defendant’s conduct was related specifically to the written Confirming Order rather
than the already existing oral contract.”).
The question is whether Area Erectors ever received a complete copy of the Rental Out
Agreement in the first place. Illini Hi-Reach offers evidence about its practice for delivering
agreements in general. When Illini Hi-Reach’s driver (Louis Roon) dropped off the JLG manlift,
he was “supposed to leave” a copy and get a signature from someone with Area Erectors. See
43
Illini Hi-Reach’s Rule 56.1 Statement of Additional Material Facts, at ¶¶ 8, 10 (Dckt. No. 221).
If the customer does not sign for the equipment and is not at the job site, Illini Hi-Reach sends a
copy of the terms and conditions through an invoice. Id. at ¶¶ 14–15. Illini Hi-Reach claims that
it followed that practice here, as demonstrated by the signed Rental Out Agreement. See Illini
Hi-Reach’s S.J. Brf., at 20–22 (Dckt. No. 220); Rental Out Agreement (Dckt. No. 137-2). The
signature is sufficient evidence for a reasonable jury to find that Area Erectors consented to the
contract.
But Area Erectors presents evidence that Illini Hi-Reach didn’t follow that procedure
here. There is at least some evidence that Area Erectors never received the second page. For
starters, it is a mystery who signed the agreement. Illini Hi-Reach thinks that Kevin Podobinski
signed it, but he testified that it was not his signature. See Podobinski Dep. 33:14-20 (Dckt. No.
232-6). Illini Hi-Reach cannot rely on the signature as dispositive evidence of assent when it is
unknown who signed it, and when the alleged signatory testified that it wasn’t his signature.
There is a genuine issue of material fact about who signed the agreement.
Area Erectors did not squarely testify that it never received a copy. But the accounts
payable manager at Area Erectors testified that she didn’t see the terms and conditions until this
litigation began. See Area Erectors’s Rule 56.1(a)(3) Additional Facts, at ¶¶ 53, 58 (Dckt. No.
237). The testimony from the accounts payable manager is consistent with the notion that Area
Erectors never received a copy. Id. at ¶¶ 54, 57–58.
Area Erectors also points out that the copy of the invoice in its files doesn’t have the
terms and conditions. See Area Erectors’s Resp. to Illini Hi-Reach’s Rule 56.1 Statement of
Additional Material Facts, at ¶ 14 (Dckt. No. 234). And Illini Hi-Reach did not follow its
protocol in each and every case. Illini Hi-Reach’s Vice President testified that, as a matter of
44
practice, Illini Hi-Reach actually doesn’t send the terms and conditions to a customer when it
fails to obtain a signature at the jobsite. See Area Erectors’s Rule 56.1(a)(3) Additional Facts, at
¶¶ 32–33, 40 (Dckt. No. 237).
So there is a genuine issue of material fact about whether Area Erectors ever received the
second page of the Rental Out Agreement with the terms and conditions. Area Erectors is not
bound by terms of a contract that it did not receive, unless there is some other basis to conclude
that Area Erectors assented to them. A jury needs to decide whether Area Erectors ever assented
to the second page of the Rental Out Agreement. See Mecum v. Weilert Custom Homes, LLC,
239 F. Supp. 3d 1093, 1096 (N.D. Ill. 2017) (denying motion for summary judgment due to a
dispute of material fact about whether plaintiff received the agreement).
Maybe Illini Hi-Reach could have argued constructive notice. That is, the first page of
the Rental Out Agreement expressly incorporates the terms and conditions on the second page:
“The above described Equipment has been received . . . and is accepted by CUSTOMER, subject
to the terms and conditions on the reverse side hereof, which are hereby made a part hereof by
reference as if fully set forth herein.” See Rental Out Agreement, at 1 (Dckt. No. 137-2). The
first page quickly repeats the point: “PLEASE READ THIS CONTRACT BEFORE SIGNING
**NOTE: RENTAL AGREEMENT TERMS & CONDITIONS ON REVERSE SIDE.
(CUSTOMER TO RETAIN COPY).” Id. But Illini Hi-Reach made no such argument. And the
record is undeveloped, too. The parties don’t cleanly present the facts about whether Area
Erectors ever received the first page, let alone the second one.
45
D.
The Illinois Construction Contract Indemnification for Negligence Act
Area Erectors makes another argument in favor of summary judgment. Area Erectors
contends that the Illinois Construction Contract Indemnification for Negligence Act forecloses
any claim for indemnification. Not so. This case doesn’t involve a construction contract.
Illinois law does not prohibit indemnification agreements writ large. “Illinois courts will
generally enforce contracts of indemnity against one’s own negligence.” Winston Network, Inc.
v. Indiana Harbor Belt R.R. Co., 944 F.2d 1351, 1359 (7th Cir. 1991). But the Indemnification
Act carves out an exception. Based on its plain text, the statute applies only to certain types of
construction agreements:
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.
See 740 ILCS 35/1.
The statute prohibits construction agreements that require a person to indemnify a second
person for the second person’s own negligence. The purpose of the Indemnification Act is to
“foster workplace safety by preventing a party from insulating itself from liability through use of
a contractual indemnification provision which may deter the exercise of ordinary care.” Virginia
Sur. Co. v. N. Ins. Co. of New York, 224 Ill. 2d 550, 560, 310 Ill. Dec. 338, 866 N.E.2d 149
(2007); Davis v. Commonwealth Edison Co., 61 Ill. 2d 494, 499, 336 N.E.2d 881 (1975) (“The
statute would thwart attempts to avoid the consequences of liability and thereby insure a
continuing motivation for persons responsible for construction activities to take accident
prevention measures and provide safe working conditions.”); North River Ins. Co. v. Byer, 275
Ill. App. 3d 175, 180, 211 Ill. Dec. 604, 655 N.E.2d 987 (1995) (“[T]he Act is intended and
46
serves to protect construction workers in the construction industry and the public as well from
the dangers associated with construction work.”). The idea is that people will act with greater
care – and thus create safer working environments – if they have to internalize the costs of their
own negligence.
“Stripped to its bare essentials, the Illinois [anti-indemnity] statute prevents indemnity
against a party’s own negligence in construction contracts.” Winston Network, 944 F.2d at 1358
(citation omitted). The “Indemnification Act provides that indemnification provisions in
construction contracts which purport to relieve a party from liability for its own negligence are
void as against public policy.” Field v. Norfolk & W. Ry. Co., 1998 WL 372090, at *2 (N.D. Ill.
1998).
Area Erectors thinks that the statute applies because Wilda suffered fatal injuries “while
performing construction work at a construction site.” See Area Erectors’s S.J. Brf., at 8 (Dckt.
No. 149). But the statute does not apply to anything and everything that relates to construction.
The statute applies to contracts “for” the construction, alteration, repair, or maintenance of a
building. See 740 ILCS 35/1. A contract “for” construction does not mean a contract “about,”
“related to,” or “in connection with” construction. It means a contract to build something.
The Rental Out Agreement does not fall within the boundaries of the statutory text. Area
Erectors did not enter into an agreement with Illini Hi-Reach “for” the construction, alteration,
repair, or maintenance of anything. Area Erectors didn’t agree to construct anything for Illini
Hi-Reach, or vice versa. Instead, Area Erectors agreed to rent equipment from Illini Hi-Reach.
See Rental Out Agreement, at 2 (Dckt. No. 137-2) (“Illini Hi-Reach, Inc. . . . hereby rents to the
customer . . . named on the front of this Equipment Rental Agreement . . . and Customer hereby
47
rents from [Illini Hi-Reach], the personal property set forth on the front side of this
Agreement.”).
A contract “for” construction does not mean a contract “in connection with” construction.
Reading those phrases to mean the same thing would overstretch the text, and would undercut
the rest of the paragraph, too. The statute also applies to contracts “for any moving, demolition
or excavation connected therewith.” See 740 ILCS 35/1. So it does not apply to contracts for
anything else “connected therewith.” See Antonin Scalia & Bryan Garner, Reading Law: The
Interpretation of Legal Texts 107–111 (2012) (explaining the negative-implication canon).
Supplying equipment is not “moving, demolition, or excavation.”
The fact that Area Erectors planned to use the equipment for construction does not
change the essential character of the contract. It was a rental agreement, not a construction
contract. It does not matter that the accident happened on a construction site, because the “focus
of the statute . . . is ‘contracts or agreements,’ not accidents.” Winston Network, 944 F.2d at
1359. “The statute, after all, applies to contracts ‘for the construction, alteration, repair or
maintenance’ of a structure, not to contracts ‘having some connection with the construction,
alteration, repair or maintenance’ of a structure.” Id. (emphasis in original); see also Keilman v.
Sam’s West Inc., 2018 WL 4563074, at *2–3 (N.D. Ill. 2018) (holding that the statute did not
apply because the contract involved the “distribution, delivery, loading and unloading of goods,”
not “construction, repair, or maintenance work”); Avalos v. Pulte Home Corp., 2006 WL
3813735, at *4 (N.D. Ill. 2006) (finding that the delivery of construction materials did not fall
within the Act).
The Rental Out Agreement did not involve “other work dealing with construction,”
either. See 740 ILCS 35/1. The preceding phrase reveals what the statute means by “other
48
work.” Id. (emphasis added). “Work” means to “construct[],” “alter[],” “repair,” or
“maint[ain]” a building. Id. A rental of equipment is not “work.”
The statutory language is bolted to a word with a plain meaning: “work.” The phrase
“other work dealing with construction” does not mean “anything else dealing with construction.”
Providing goods, without more, is not enough. Area Erectors would unfasten the statutory
language from its foundation, transforming every supplier into a construction worker.
In Avalos, a court in this District held that the statute did not apply to the delivery of
building materials to a construction site. “While the types of materials Wheaton contracted to
deliver were intended for and used in the construction of buildings, the Court would have to cast
the ‘other work’ net too broadly if the Act were to cover contracts like the Wheaton-Pulte
contract.” Avalos, 2006 WL 3813735, at *4. The contract was “less akin to a construction
contract than to a delivery contract.” Id.
The same result applies here. Illini Hi-Reach agreed to rent equipment to Area Erectors.
It did not agree to perform work dealing with construction. Area Erectors may have agreed to
perform construction work for someone else, but that’s not a reason to recast the character of its
agreement with Illini Hi-Reach.
Area Erectors relies heavily on Pekin Ins. v. Designed Equip. Acquisition Corp., 2016 IL
App (1st) 151689-U (2016).15 Pekin involved the lease of scaffolding materials for use at a
15
The Court is not bound to follow the decisions of an Illinois intermediate appellate court. See Cmty.
Bank of Trenton v. Schnuck Mkts., Inc., 887 F.3d 803, 811 (7th Cir. 2018) (“[O]ur role in deciding these
questions of state law is to predict how the highest courts of the respective states would answer them. We
are to take into account trends in a state’s intermediate appellate decisions, but the focus is always a
prediction about the state’s highest court.”) (internal citations omitted); Taco Bell Corp. v. Cont’l Cas.
Co., 388 F.3d 1069, 1077 (7th Cir. 2004) (“The duty of a federal court in a diversity suit is to predict what
the state’s highest court would do if presented with the identical issue.”); Baer v. First Options of
Chicago, Inc., 72 F.3d 1294, 1301 (7th Cir. 1995) (“We are obliged to consider the holdings of state
appellate courts but are not bound to do so if we have good reasons for diverging from those decisions.”).
It is persuasive authority only. Adams v. Catrambone, 359 F.3d 858, 862 (7th Cir. 2004); see also
49
construction site. Id. at ¶ 3. The intermediate state appellate court held that the Indemnification
Act applied, and thus voided an indemnification provision. Id. at ¶ 34.
But Area Erectors overlooks an important part of the holding. The contract required a
party to “deliver and assemble” a scaffolding on a building. Id. The state court repeatedly
pointed to the fact that the contract required the assembly of the scaffolding. Id. (“The parties
agree that the lease required Designed to deliver and assemble the scaffolding. . . . The lease
required Designed to deliver and assemble scaffolding, which is certainly a type of work that
deals with construction, and if not construction specifically, then ‘alteration, repair or
maintenance of a building.’”). The scaffold didn’t build itself. Someone had to build it. And the
assembly of the scaffolding was work.
The assembly work made all the difference. The statute covers the “alteration, repair or
maintenance of a building.” See also 740 ILCS 35/1. Assembling a scaffold on a building is
part of maintaining a building. Renting a manlift is not. The assembly work also was “work
dealing with construction.” Id. But a rental is not “work.” Illini Hi-Reach performed no such
work on a building under construction. It simply dropped off a piece of equipment.
The Court denies the motion for summary judgment filed by Area Erectors to the extent
that it relied upon the Illinois Construction Contract Indemnification for Negligence Act.
Cilliers v. Cobalt Holdings, Inc., 2019 WL 1514977, at *3 (N.D. Ill. 2019) (If the Seventh Circuit has
already “predict[ed] how the Illinois Supreme Court would rule on [an] issue,” “the Court is bound by the
Seventh Circuit’s decision, even if subsequent state appellate court decisions diverge from the Seventh
Circuit’s interpretation.”). The Court pays special heed to the Seventh Circuit’s decision in Winston
Network, which focused on the statutory text. See Winston Network, 944 F.2d at 1359 (“The statute, after
all, applies to contracts ‘for the construction, alteration, repair or maintenance’ of a structure, not to
contracts ‘having some connection with the construction, alteration, repair or maintenance’ of a
structure.”) (emphasis in original).
50
E.
Contribution
Area Erectors makes a smattering of other arguments in its brief.16 Along the way, Area
Erectors drops a few paragraphs about contribution. It recounts how it settled with Wilda’s
estate in the state court case. And it claims that the Illinois Joint Tortfeasor Contribution Act,
740 ILCS 100/2, prevents a tortfeasor from recovering contribution from another tortfeasor who
settled with the plaintiff in good faith. See Area Erectors’s S.J. Brf., at 3–5 (Dckt. No. 149).
The argument by Area Erectors is fairly cursory. And Illini Hi-Reach responds with even
less. See Illini Hi-Reach’s S.J. Brf. (Dckt. No. 220). In fact, Illini Hi-Reach does not respond to
the contribution argument at all. Maybe the omission was intentional. Based on the Court’s
review of the Third-Party Complaint, it appears that Illini Hi-Reach is not advancing a
contribution claim against Area Erectors. See Illini Hi-Reach’s Third-Party Cplt. (Dckt. No.
137).
So Area Erectors makes a thin argument, with no response from Illini Hi-Reach, about a
claim that does not appear in the pleading. This Court sees no live issue, and won’t address an
argument about an illusory claim. If there is a live issue, the parties can raise it down the road.
Conclusion
The Court grants JLG’s motion for summary judgment (Dckt. No. 217) on Count I (the
indemnification claim) of its Third-Party Complaint against Illini Hi-Reach. The Court denies
JLG’s motion for summary judgment on Count II (the contribution claim) of its Third-Party
Complaint. The Court also dismisses Count II of JLG’s Third-Party Complaint against Illini Hi-
16
The parties debate at great length the issue of insurance coverage, that is, whether Area Erectors
complied with a contractual obligation to obtain insurance. See Area Erectors’s S.J. Brf., at 22–24 (Dckt.
No. 149); Illini Hi-Reach’s S.J. Brf., at 14–18, 26–30 (Dckt. No. 220); Area Erectors’s Resp., at 20–22,
26–27, 31–35 (Dckt. No. 232); Illini Hi-Reach’s Reply, at 6–8 (Dckt. No. 250). Respectfully, the briefs
are too jumbled for the Court to resolve that issue at this juncture.
51
Reach. The Court denies Illini Hi-Reach’s motion for summary judgment against JLG (Dckt.
No. 178). The Court denies the motion for summary judgment filed by Illini Hi-Reach against
Area Erectors (Dckt. No. 202), and denies the motion for summary judgment filed by Area
Erectors against Illini Hi-Reach (Dckt. No. 147).
Date: July 2, 2020
Steven C. Seeger
United States District Judge
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