Zaidi v. 1-800-Pack-Rat, LLC

Filing 29

MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 3/8/2025: For the reasons stated in the accompanying Memorandum Opinion and Order, the Court denies plaintiff's motion to strike Pack-Rat's first affirmative defense [dkt. no. 17]. (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SYED ZAIDI,
Plaintiff,
vs.
1-800-PACK-RAT, LLC,
Defendant.

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Case No. 24 C 9857

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Plaintiff Syed Zaidi has filed a negligence action against Defendant 1-800-PACKRAT (Pack-Rat). Zaidi entered into a contractual agreement with Pack-Rat to lease a
warehouse that Pack-Rat owns and operates in Bartlett, Illinois. On July 18, 2024,
while Zaidi was at the warehouse, a side of a modular home attached to a forklift fell on
him. Zaidi alleges that Pack-Rat employees failed to properly secure the modular home
to the forklift and that the accident was a result of the employees' and thus Pack-Rat's
negligence. Zaidi says he suffered serious injuries from this accident, including bilateral
ankle fractures, a skull fracture, and a traumatic brain injury that required an extensive
course of treatment.
In response to Zaidi's suit, Pack-Rat has asserted defenses including contractual
indemnification, waiver and assumption of risk, and contributory negligence. Zaidi
initially moved to strike the contractual indemnification defense via a motion for
summary judgment. Because the motion relied solely on the pleadings, however, the

Court ruled that it would consider the motion as a motion for judgment on the pleadings
or a motion to strike the defense. See dkt. 20. In his reply brief, Zaidi retitled his motion
as a motion to strike. The Court thus considers the motion as a motion to strike an
affirmative defense.
For the reasons below, the Court denies Zaidi's motion.
Discussion
Federal Rule of Civil Procedure 12(f) permits the court to strike an insufficient
defense. Fed. R. Civ. P. 12(f). A motion to strike a defense will be granted only if "it
appears to a certainty that plaintiffs would succeed despite any state of the facts which
could be proved in support of the defense . . . and are inferable from the pleadings."
Williams v. Jader Fuel Co., 944 F.2d 1388, 1400 (7th Cir. 1991) (internal quotation
marks and citations omitted).
On July 8, 2024, Zaidi agreed to Pack-Rat's Warehouse Use and License
Agreement and Terms of Service. The Terms of Service's indemnification provision, in
relevant part, reads:
10. Indemnity: . . . [Zaidi] hereby agrees to indemnify, defend and hold
[Pack-Rat], Warehouse Exchange and their respective members,
shareholders, partners, officers, directors, employees, agents and
representatives harmless from any and all claims or assertions of every
kind and nature arising from or in connection with [Zaidi's] use and/or
occupancy of the Licensed area, including but not limited to personal
injury, loss of life or limb . . . provided, however that the foregoing
indemnity shall not apply to claims arising out of the gross negligence or
willful misconduct of the [Pack-Rat]. [Pack-Rat] hereby agrees to
indemnify, defend and hold [Zaidi] harmless from any and all claims or
assertions of every kind and nature arising from or in connection with
[Pack-Rat's] gross negligence or willful misconduct; provided however that
such indemnification shall not apply to damage or loss of [Zaidi's] personal
property. . . .
Answer, Ex. A ¶ 10. Pack-Rat argues that under this provision, it is indemnified against
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Zaidi's negligence claim. Zaidi disagrees; he argues that "Pack-Rat cannot be
indemnified for its own negligence because the provision does not express that at all, let
alone to [satisfy] the 'clear and explicit' standard." Pl.'s Mem. at 6. According to Zaidi,
the indemnification provision's silence on claims arising from Pack-Rat's negligence
defeats Pack-Rat's interpretation of the provision.
A.

Indemnification agreements under Illinois law
Indemnification agreements are contracts and are therefore analyzed using

contract interpretation rules. See Va. Sur. Co. v. N. Ins. Co. of N.Y., 224 Ill. 2d 550, 556,
866 N.E.2d 149, 153 (2007). Under Illinois law, "indemnity contracts are strictly
construed," and are not "construed as indemnifying against a party's own negligence
unless such a construction is required by clear and explicit language of the contract, or
such an intention is expressed in unequivocal terms." McNiff v. Millard Maint. Serv. Co.,
303 Ill. App. 3d 1074, 1077, 715 N.E.2d 247, 249 (1999). Still, "Illinois law generally
provides that contracts of indemnity against one's own negligence are valid and
enforceable." Nicor Gas Co. v. Village of Wilmette, 379 Ill. App. 3d 925, 929, 884
N.E.2d 816, 820 (2008).
In arguing that the agreement fails to indemnify Pack-Rat for claims arising from
its own negligence, Zaidi cites several cases in which courts found that an indemnitee
was not indemnified for its own negligence in situations where the pertinent agreement
that lacked language stating—in so many words—that the indemnitor would be liable for
such claims. He also cites cases in which courts found that an indemnitee was
indemnified for its own negligence where there was an agreement that included express
language saying as much See e.g., Zadak v. Cannon, 59 Ill. 2d 118, 119 319 N.E.2d

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469, 471 (1974) (clause covering claims "arising out of any such work" limited the
indemnity provision to the work performed only by the indemnitor's employees under
the contract and did not cover indemnitee's negligence); McNiff, 303 Ill. App. 3d at 1076,
715 N.E.2d at 248 (no coverage of indemnitee's negligence because provision limited
claims to those "arising out of or incidental to the Work, including, without limiting the
foregoing, all acts and omissions of the officers, employees and agents of [the
indemnitor] or any of its subcontractors"); Westinghouse Elec. Elevator Co. v. LaSalle
Monroe Bldg. Corp., 395 Ill. 429, 432, 70 N.E.2d 604, 606 (1946) (no indemnification
for claims arising from indemnitee's negligence because contract covered claims only
"arising out of any acts or omissions by the [indemnitor]"); Schek v. Chi. Transit Auth.,
42 Ill. 2d 362, 363, 247 N.E.2d 886, 887 (1969) (finding indemnity for indemnitee's
negligence because contract expressly stated "caused by the negligence of Licensor.");
Allen v. Int'l Harvester Co., 212 Ill. App. 3d 655, 660, 571 N.E.2d 773, 777 (1991)
(provision included language expressly covering claims arising from negligence of
indemnitee).
Zaidi correctly contends that these cases reflect that an indemnification
agreement's language must clearly indicate that claims arising from an indemnitee's
negligence is covered. But his contention that these cases indicate that to do so, an
agreement must refer expressly to the indemnitee's negligence is incorrect. As the
Seventh Circuit has stated, "Illinois law does not require indemnity contracts to contain
an express provision providing for the coverage of the indemnitee's own negligence in
order for them to be enforceable. Instead, it contains only the more commonplace rule
that indemnity provisions, when ambiguous, will not be interpreted in this way."

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Freislinger v. Emro Propane Co., 99 F.3d 1412, 1420 (7th Cir. 1996).
Zaidi's additional argument in the same vein—that the use of the phrase "any
and all claims" in an indemnification agreement (the terminology used in the present
agreement) is insufficient on its own to provide indemnity for claims arising from an
indemnitee's negligence—likewise misconstrues Illinois law. This very argument was
rejected by the Illinois Supreme Court in Buenz v. Frontline Transportation Co., 227 Ill.
2d 302, 310, 315, 882 N.E.2d 525, 533 (2008). In Buenz, the court explained that past
cases in which courts had found an indemnitee's negligence was not covered by an
indemnification agreement despite the agreement's use of the phrase "any and all
claims" did not represent a rule that "any and all" language is insufficient to provide
indemnity. Rather, those decisions resulted from the fact that the contracts at issue
"contained express clauses limiting indemnification to negligence occasioned by the
indemnitor." Id. at 315, 882 N.E.2d at 533. The court stated that in cases involving
agreements with such limiting language, "courts will not strain, simply because the
contract also contains 'any and all' language, to read into that contract indemnification
for an indemnitee's own negligence." Id. at 315-16, 882 N.E.2d at 533. But the court
disagreed with the proposition that this reasoning in any way implied that "the inclusion
of the phrase 'any and all' within an indemnification clause is insufficient to indemnify an
indemnitee for its own negligence." Id. That is the very argument that Zaidi makes
here.
The agreement in Buenz provided, in relevant part, that "[indemnitor] shall
indemnify [indemnitee] against, and hold [indemnitee] harmless for any and all claims * *
* arising out of, [in] connection with, or resulting from the possession, use, operation or

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returning of the equipment during all periods when the equipment shall be out of the
possession of [indemnitee]." Id. at 317-18, 882 N.E.2d at 534 (internal quotation marks
omitted). The court concluded that this clause contained no limiting language to
"suggest that the indemnity provided is not intended to cover claims resulting from
[indemnitee's] own negligence." Id. at 318, 882 N.E.2d at 534. Rather, the lack of
limiting language and the inclusion of "any and all claims" was enough for the court to
conclude that the agreement "clearly and explicitly provides indemnification for
[indemnitee's] own negligence pursuant to the rest of the contract terms." Id.
In sum, the Court overrules Zaidi's contention that an indemnification agreement
must specifically refer to a party's negligence in order to provide indemnity for the
party's negligence.
B.

Zaidi and Pack-Rat's indemnity agreement
The phrase "any and all," as used in agreement at issue in this case, is broad

nad all inclusive. See Haynes v. Montgomery Ward & Co., 47 Ill. App. 2d 340, 346, 198
N.E.2d 548, 551 (1964); see also Buenz, 227 Ill. 2d at 316, 882 N.E.2d at 533 ("[T]he
use of the phrase 'any and all' may indicate . . . that the parties intended an indemnitee
be indemnified, even for the indemnitee's own negligence"). It is worth noting that the
Illinois Supreme Court—albeit years before Buenz—stated that "it serve[s] no useful
purpose to attempt to analyze or reconcile the numerous cases interpreting indemnity
clauses." Zadak, 59 Ill. 2d at 121, 319 N.E.2d at 471. Rather, it concluded, interpreting
indemnity clauses is case-specific and depends primarily on the particular language of
the specific agreement in question. Id.
The decisive language in the agreement at issue in this case is the clause stating

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that the indemnification covers "any and all claims or assertions of every kind and
nature arising from or in connection with Licensee’s use and/or occupancy of the
Licensed area." The agreement describes the licensed area as the warehouse area,
parking spaces, and common areas. See Pl.'s Ex. C. "Any and all" means what it says:
it includes indemnity for claims arising from Pack-Rat's negligence, but not for claims
arising from its gross negligence or willful conduct, which are specifically carved out
later in the same paragraph of the agreement. The Court sees no ambiguity and no
limiting language that could be construed as excluding claims arising from Pack-Rat's
negligence. See Freislinger, 99 F.3d at 1420 (indemnity agreements lacking ambiguity
can be found to cover indemnitee's negligence without the agreement expressly stating
as much).
Zaidi argues that the agreement's carve out indemnifying Zaidi from Pack-Rat's
gross negligence and willful misconduct indicates that he did not indemnify Pack-Rat for
its negligence. To the contrary, however, this subsequent provision cuts against Zaidi's
argument. Consistent with the principle "expressio unius est exclusio alterius"—the
expression of one thing is the exclusion of the other—Pack-Rat's inclusion of language
making it clear that it would not be indemnified for gross negligence or willful
misconduct implies that the clause indemnifying Pack-Rat was intended to cover
ordinary negligence, which is all that Zaidi alleges in his current complaint. See, e.g.,
Delta Min. Corp. v. Big Rivers Elec. Corp., 18 F.3d 1398, 1405 (7th Cir. 1994); Rickher v.
Home Depot, Inc., 535 F.3d 661, 668 (7th Cir. 2008); Am. Bankers Ins. Co. of Fla. v.
Shockley, 3 F.4th 322, 331 (7th Cir. 2021) (all applying expressio unius principle in the
context of contract interpretation).

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Zaidi alleges in his complaint that his injuries occurred due to Pack-Rat's
negligence; he does not allege gross negligence, at least not in the current version of
his complaint. The agreement covers claims "of every kind and nature arising from or in
connection with [Zaidi's] use and/or occupancy of the Licensed area." As the Court has
stated, this covers claims arising out of Pack-Rat's negligence. Thus, the only question
remaining for purposes of the motion to strike is whether the claim arose from Zaidi's
use or occupancy of the licensed area. At this point at least, that appears to be
undisputed. Though the parties appear to dispute who was operating the forklift and
caused the modular home piece to fall on top of Zaidi, this is beside the point; the
agreement covers claims arising from Zaidi's occupancy of the licensed area even if he
was not using that area. Zaidi does not appear to contend that his injuries occurred at a
point when he was outside of the licensed area. So even if a Pack-Rat employee was
operating the forklift, the agreement covers claims relating to injuries that Zaidi suffered
while he was physically located in the licensed area.
For these reasons, the Court denies Zaidi's motion to strike the affirmative
defense. It will be up to Zaidi to decide whether he can, consistent with Rule 11, amend
his complaint to assert a claim of gross negligence on the part of Pack-Rat.
Conclusion
For the foregoing reasons, the Court denies plaintiff's motion to strike Pack-Rat's
first affirmative defense [dkt. no. 17].
Date: March 8, 2025
_______________________________
MATTHEW F. KENNELLY
United States District Judge

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