Turubchuk et al v. E.T. Simonds Construction Company et al
Filing
200
ORDER DENYING Motion for Summary Judgment filed by Southern Illinois Asphalt Company, Inc. (Doc. 101 ). Signed by Judge Staci M. Yandle on 2/3/2017. (mah).
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LILIYA TURUBCHUK, et al.,
)
)
)
)
)
)
)
)
)
)
Plaintiffs,
vs.
E.T. SIMONDS CONSTRUCTION
COMPANY, et al.,
Defendants.
Case No. 12-CV-594-SMY-SCW
MEMORANDUM AND ORDER
Pending before the Court is Defendant Southern Illinois Asphalt Company’s Motion for
Summary Judgment (Doc. 101). Plaintiffs filed a response (Doc. 129). For the following
reasons, the motion is DENIED.
Background
In 2007, Plaintiffs filed a negligence action in this court seeking to recover for injuries
resulting from a single vehicle accident which occurred on August 21, 2005 (“the underlying
action”) (see Doc. 106-1; see also Turubchuk v. E.T. Simonds Const. Co., 07-CV-216-WDS).
Plaintiffs sued Defendants E.T. Simonds Construction Company (“ETS”) and Southern Illinois
Asphalt Company, Inc. (“SIAC”). Defendants were contractors on a State of Illinois road
construction project (the “Project”) who were involved in repaving a stretch of Interstate 24. At
the time of the accident, Plaintiffs’ vehicle was travelling eastbound on Interstate 24.
Plaintiffs alleged that the fog-line and yellow solid lines on the interstate had not been
repainted after the repaving. In addition, a guardrail, which was in place to construction had
been removed and that the vehicle in which they were riding left the paved road in the
1
construction zone, slipped off of a severe edge drop-off and rolled. Plaintiffs further alleged that
Defendants were negligent by creating an unreasonably dangerous condition, failing to erect
appropriate barricades and failing to warn vehicle operators of these hazards.
In 2004, the Illinois Department of Transportation (“IDOT”) opened the bidding process
for the Project. ETS and SIAC bid on the Project as a joint venture (Doc. 102-1) and were
awarded the Project in July 2004 (Doc. 102-2). On August 23, 2004, ETS and SIAC executed a
Joint Venture Agreement (the “Agreement”) (Doc. 102-3). Under the terms of the Agreement,
ETS was named the overall Project Manager with responsibility for the proper coordination,
accounting and management of the Project. Each contractor presented their respective bids for
the Project, assumed all responsibility for the accuracy of their respective bids and was
responsible for the costs of its portion of the Project. Additionally, each contractor “severally
assume[d] all obligations and responsibilities to IDOT” and agreed to indemnify and hold the
other harmless for any breach of their respective obligations under the Project.
The Agreement further provides that ETS was “solely responsible” for the westbound
lanes of the Project, while SIAC was “solely responsible” for the eastbound lanes; including
testing, incentive payments/deductions, and any required corrective actions that may be imposed
by IDOT. Each contractor was “free to conduct its respective business in whatever manner it
[saw] fit” and neither contractor was “entitled to make nor be bound by any representations,
actions, or liabilities whatsoever done by the other party.”
The “joint venture” was responsible for obtaining general liability insurance required by
the IDOT:
“Such insurance shall be in the name of the joint venture, with ETS and SIAC
as additional insured…Each respective Contractor shall indemnify and hold
harmless the Joint Venture and their agents from and against all claims,
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damages, losses, and expenses including attorney's fees arising out of or
resulting from the performance of that Contractor's work (Doc. 102-3, p. 2).
On September 8, 2004, ETS and SIAC obtained general liability insurance on behalf of
the “joint venture” , issued by Bituminous Insurance Company, Policy CLP3216156 (Doc. 1065). At the time of the accident, ETS and SIAC were also insured by several individual policies in
addition to the Bituminous policy.
ETS was individually insured by Zurich Commercial
Umbrella Liability, Policy AUC 930332403 (policy limits $10,000,000) and another Bituminous
policy, Policy CLP320823B (policy limits $1,000,000) (Docs. 106-8, 106-9). Similarly, SIAC
was insured by: Liberty Mutual Insurance Company, Policy RG-2-631-004090-605 (policy
limits $2,000,000); Clarendon National Insurance Company Excess (Umbrella) Liability Policy
XLB00411049 (policy limits $2,000,000); Liberty International Underwriters Insurance
Company, Excess Liability Policy LQ1-B71-073-091-051 (policy limits $25,000,000); and ACE
American Insurance Company, Excess Liability Policy XCP G22082589 (policy limits
$25,000,000) (Docs. 106-21 to 106-24). Following the 2005 accident, SIAC notified Bituminous
and Liberty Mutual Insurance Company of the underlying action (Doc. 106-12, pp. 25-31).
Plaintiffs were represented in the underlying case by Komron Allahyari. On April 25,
2007, Richard Green entered his appearance for “Defendants E.T. Simonds Construction and
Southern Illinois Asphalt Company, Inc., joint venture” (Doc. 118-37). On May 13 or 14, 2007,
Allahyari and Green discussed the underlying action via telephone (Doc. 106-4). According to
Allahyari, during this conversation, Green affirmatively represented that Defendants were
performing the repaving as a joint venture and that there was only one insurance policy, the
Bituminous policy, with policy limits in the amount of $1,000,000 per occurrence. Id. Again,
according to Allahyari, on May 14, 2007, he made a policy-limit settlement demand based on
Green’s representation that $1,000,000 represented the limits of all insurance policies applicable
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to the claims raised by Plaintiffs in the underlying action (Docs. 106-4, Doc. 106-15, 106-16, pp.
37-38).
Green emailed Allahyari Defendants’ Rule 26(a)(1) disclosures on May 15, 2007 (Doc.
106-13). Section C of the disclosures state: “At the time of the occurrence the joint venture was
insured by Bituminous Casualty Insurance Company with policy limits of $1,000,000, a copy of
Certificate of Insurance is attached” (Doc. 106-5). No other insurance policies were identified
and Defendants never amended their initial disclosures or provided any of their other insurance
policies to the Plaintiffs in the underlying action (Doc. 106-14, 106-17).
In his deposition taken in this case, Green testified that he spoke with individuals from
SIAC, although he could not recall their names (Doc. 106-13, p. 33). However, he did not
inquire whether SIAC or ETS had any additional insurance policies (Doc. 106-14, pp. 27-28).
His general practice was to identify all available insurance policies later in the discovery process
after receiving interrogatories and a request to produce (Doc. 106-13, pp. 42-43). At some point
however, Green became aware that SIAC had notified Liberty Mutual of the underlying action
and he obtained the contact information for Liberty Mutual’s representative Catherine Kuczynski
(Doc. 106-12, pp. 55-57, 61). Gerald Neels, Richard Neubert, and James McPhail, Jr.,
representatives of SIAC, testified during their depositions that they could not remember
providing any information for the initial disclosures or having spoken to Green (Doc. 118-18, p.
41, Doc. 118-14, pp. 60-61, Doc. 118-19, p. 44).
Plaintiffs’ settled their claims for the Bituminous joint venture $1,000,000 policy limits
(Doc. 106-17) 1 and the case was dismissed at the parties’ request following the Court’s approval
of the minor settlement in February 2008 (see Turubchuk v. E.T. Simonds Const.Co., 07-CV1
In the email accepting the settlement demand, Green courtesy copied Kuczynski at Liberty Mutual (Doc.
106-17).
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216-WDS). During his deposition, Allahyari testified that he would have withdrawn the May 14,
2007 settlement demand had he known about the additional policies (Doc. 106-4, 106-16, p. 38).
Plaintiffs filed this action nearly six years later, seeking damages for Defendants’ failure
to disclose their individual policies. Plaintiffs maintain that if Defendants had disclosed the
individual policies, they would not have settled for the “policy limits” of the only policy
disclosed to them. Plaintiffs assert claims for intentional misrepresentation, fraudulent
concealment, negligent misrepresentation and constructive fraud.
Discussion
SIAC contends that summary judgment is warranted on several grounds: (1) Plaintiffs’
claims are barred pursuant to the Illinois litigation privilege; (2) Illinois does not recognize a
cause of action for misconduct which occurred in prior litigation; (3) it is not liable for Richard
Green’s actions; (4) Plaintiffs’ claims are barred by the effect of the release in the underlying
action; (5) Plaintiffs cannot establish the necessary elements of their misrepresentation claims;
and (6) its individual insurance policies would not have provided coverage in the underlying
action.
Summary judgment is proper only if the moving party can demonstrate that there is no
genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also
RuffinThompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005).
The moving party bears the burden of establishing that no material facts are in genuine dispute;
any doubt as to the existence of a genuine issue must be resolved against the moving party.
Lawrence v. Kenosha County, 391 F.3d 837, 841 (7th Cir. 2004). A moving party is entitled to
judgment as a matter of law where the non-moving party “has failed to make a sufficient
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showing on an essential element of her case with respect to which she has the burden of proof.”
Celotex, 477 U.S. at 323.
Absolute Litigation Privilege
In Illinois, “[a]n attorney at law is absolutely privileged to publish defamatory matter
concerning another in communications preliminary to a proposed judicial proceeding, or in the
institution of, or during the course and as a part of, a judicial proceeding in which he participates
as counsel, if it has some relation to the proceeding.” Atkinson v. Affronti, 861 N.E.2d 251, 255
(2006). The absolute litigation privilege applies “only when the following conditions have been
met: the publication was made in a judicial proceeding; had some connection or logical relation
to the action; was made to achieve the objects of the litigation; and involved litigants or other
participants authorized by law.” Kurczaba v. Pollock, 742 N.E.2d 425, 438 (2000).
This privilege is limited to protection against defamation and false light actions, neither
of which do Plaintiffs assert in the instant action. See Zdeb v. Baxter Int'l, Inc., 697 N.E.2d 425,
429-30 (1998); Scheib v. Grant, 22 F.3d 149, 156 (7th Cir. 1994). SIAC has cited no authority in
support of its effort to utilize the litigation privilege as a shield to allegations of
misrepresentation, fraud and concealment, and the Court is aware on none. The privilege does
not apply and summary judgment is denied as to this point.
Misconduct in Prior Litigation
Relying on Harris Trust and Savings Bank v. Phillips, 506 N.E.2d 1370 (1987), SIAC
asserts that there is no civil cause of action for the alleged “misconduct” that occurred in prior
litigation. In Harris Trust, the plaintiff brought an action to recover costs and fees incurred in
the retrial of an underlying action, alleging slander, defamation and intentional interference with
the judicial process. Id. at 1370. The court noted that the re-litigation expenses claimed did not
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constitute special damages within the law of defamation per quod because the plaintiff would
have incurred the same expenses even if the defendant’s words were not defamatory. The court
further held that the expenses incurred in litigating the underlying action should not be the basis
for the subsequent litigation because there is no civil cause of action for misconduct which
occurred in the underlying case.
The Harris Trust holding is narrow and limited to claims for re-litigation expenses in
instances where a plaintiff alleges defamation in an underlying case. There is no support for
SIAC’s contention that Plaintiffs claims are likewise precluded. On the other hand, courts have
recognized a cause of action alleging fraud and misrepresentation for the concealment of
evidence in underlying actions. See, e.g., Williams v. BASF Catalysts LLC, 765 F.3d 306 (3rd
Cir. 2014); Matsuura v. E.I. Dupont de Nemours & Co., 73 P.3d 687 (Haw. 2003). Accordingly,
SIAC’s motion for summary judgment on this issue is also denied.
Defendant’s Liability for Attorney Richard Green’s Actions
Next, SIAC argues that it is not bound by Green’s actions. Generally, a party is bound
by his or her attorney’s actions or omissions during the course of the legal representation,
including the attorneys’ mistakes or negligence. See Horwitz v. Holabird & Root, 816 N.E.2d
272, 277 (2004); Ameritech Publishing of Illinois, Inc. v. Hadyeh, 839 N.E.2d 625 (2005). A
litigant has a duty to follow his or her own case. Id. However, when an attorney acts pursuant to
the exercise of independent professional judgment, he or she acts presumptively as an
independent contractor whose intentional misconduct may generally not be imputed to the client,
subject to factual exceptions. Horwitz, 816 N.E.2d at 278.
Where a plaintiff seeks to hold a client vicariously liable for the attorney's allegedly
intentional tortious conduct, they must prove facts demonstrating either that (1) that the client
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specifically directed, controlled or authorized the attorney's precise method of performing the
work or (2) that the client subsequently ratified acts performed in the exercise of the attorney's
independent judgment.
Id. at 279.
“A client ratifies the actions of his attorney by not
repudiating the acts once he has knowledge of them, or by accepting the benefits of those acts.
Ratification need not be express; it may be inferred from surrounding circumstances, including
long-term acquiescence, after notice, to the benefits of an allegedly unauthorized transaction.”
Kulchawik v. Durabla Mfg. Co., 864 N.E.2d 744, 750 (2007) (internal citations and quotation
marks omitted).
Here, Plaintiffs have alleged both intentional and negligent misrepresentation. Thus,
SIAC would be bound by any negligent conduct by Green in the underlying action. As to
alleged intentional misrepresentations, there are material disputed facts preventing a summary
determination.
SIAC representatives testified that they did not see the Rule 26 initial disclosures prior
them being sent to Allahyari nor did they meet with Green prior to either his telephone
conversation with Allahyari or preparation of the disclosures. However, Green testified that he
met with SIAC representatives regarding the disclosures. There are also questions of fact
regarding whether SIAC ratified Green’s actions by failing to disclose its additional policies
during the prolonged settlement period. The release in the underlying action was not executed
until February 2009. Further, Plaintiffs assert that SIAC, its insurance carriers and Green were
aware of the proposed settlement and did not disclose the individual policies – even after SIAC
put its individual carrier on notice of the underlying action. Given the factual disputes regarding
whether SIAC knew and/or ratified Green’s actions, summary judgment cannot be granted on
this issue.
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Release in the Underlying Action
SIAC also argues that the Release in the underlying action bars Plaintiffs’ lawsuit, citing
Adler v. William Blair & Co., 648 N.E.2d 226, 232 (1995).
Specifically, SIAC asserts that,
pursuant to the terms of the Release, the parties agreed that they were not relying on any
representations made by counsel, the other parties or their agents and were relying solely upon
their own judgment and the advice of their own attorney.
In Adler, the plaintiffs brought suit against the defendant for common law and statutory
fraud after they lost their investments in limited partnership interests in the defendant company.
Adler, 648 N.E.2d at 228. The plaintiffs argued that they relied on oral misrepresentations that
differed from the written representations provided to them. Id. at 231. The defendant filed a
motion to dismiss the complaint for failure to state a cause of action, which was granted. Id.
The appellate court affirmed, based on non-reliance language present in the private placement
memorandum (PPM) that was given to prospective investors. Adler, 648 N.E.2d 234. The court
noted that the plaintiffs were given PPMs that contained detailed information, including
warnings that the investment carried a high degree of risk. Id. The plaintiffs were also required
to sign subscription agreements that warranted that they had read the PPM and made the decision
to invest based solely on the PPM and not in reliance on any other information. Id. The court
held that under these circumstances, it was unreasonable for the plaintiffs to rely on oral
representations that were directly contrary to statements in the written agreement. Id.
Here, the representations Plaintiffs allegedly relied on in agreeing to settle their claims
were not contrary to any statements or disclosures they had been provided prior to settlement –
Plaintiffs specifically claim that they relied on Green’s oral representations and Defendants’ Rule
26 initial disclosures.
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Rule 26 required SIAC to disclose any insurance agreement that might cover all or a part
of the judgment entered in the underlying case. Rule 26(a)(1)(A)(iv) provides in relevant part:
…a party must, without awaiting a discovery request, provide to the other parties:
(iv) …[A]ny insurance agreement under which any person carrying on an
insurance business may be liable to satisfy all or part of a possible judgment in the
action or to indemnify or reimburse for payments made to satisfy the judgement.
See Fed.R.Civ.P. 26(a)(1)(A)(iv).
Rule 26 was amended in 1970 to require the disclosure of insurance policies. The Advisory
Committee Notes to the 1970 Amendments point out that “[d]isclosure of insurance coverage
will enable counsel for both sides to make the same realistic appraisal of the case, so that
settlement and litigation strategy are based on knowledge and not speculation.” Fed.R.Civ.P. 26,
1970 adv. com. notes, subd. b(2) (the former location of current Rule 26(a)(1)(A)(iv)). The
purpose of the inclusion of insurance policies is to “conduce settlement and avoid protracted
litigation.” Id. The Advisory Committee notes further observe that “information about coverage
is available only from defendant or his insurer.” Id. Disclosure is required when the insurer
“may be liable” on part or all of the judgment. Similarly, the Advisory Committee's Notes to the
1993 Amendments to Rule 26 state that the initial disclosures serve to provide parties with
certain “basic information,” including the existence of insurance, which “is needed in most cases
to prepare for trial or to make an informed decision about settlement.” Fed.R.Civ.P. 26, 1993
adv. com. notes (emphasis added).
Plaintiffs were entitled to rely on the truthfulness and accuracy of Defendants’ legally
required initial disclosures and the non-reliance language in the Release cannot be a defense to
Plaintiffs’ claims for misrepresentation, concealment or fraud. Accordingly, SIAC’s motion is
denied on this point.
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Misrepresentations
The elements of a cause of action for intentional or fraudulent misrepresentation are: (1) a
false statement of material fact; (2) known or believed to be false by the party making it; (3)
intent to induce the other party to act; (4) action by the other party in reliance on the truth of the
statement; and (5) damage to the other party resulting from such reliance. Soules v. General
Motors Corp., 402 N.E.2d 599 (1980).
The elements of a cause of action for negligent
misrepresentation are: (1) a false statement of material fact, (2) carelessness or negligence in
ascertaining the truth of the statement by the party making it, (3) an intention to induce the other
party to act, (4) action by the other party in reliance on the truth of the statement, and (5) damage
to the other party resulting from such reliance, (6) when the party making the statement is under
a duty to communicate accurate information. Fox Associates Inc. v. Robert Half International,
Inc., 777 N.E.2d 603 (2002). The two claims differ only in the mental state required; for
fraudulent misrepresentation, the defendant must know that the statement is false, while for
negligent misrepresentation, the defendant need only be negligent in ascertaining the truth of the
statement. City of Chicago v. Michigan Beach Housing Co-op., 696 N.E.2d 804 (1998).
Plaintiffs argue that based on the undisputed material facts, Defendants’ failure to
disclose all insurance policies which may have been applicable to the underlying action
constitutes negligent and/or intentional misrepresentation as a matter of the law. The Court
disagrees.
Although Defendants failed to comply with the disclosure requirements of Rule 26, 2 there
remain material issues of fact as to whether that failure constituted either intentional or negligent
misrepresentation. Absent an admission by Defendants or direct evidence, whether in failing to
2
See the Court’s Order at Doc. 199.
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disclose the individual insurance policies, Defendants intended to induce Plaintiffs to act –
specifically, to settle for the $1,000,000 Bituminous policy limits -- is a disputed fact for
determination by the jury which may be established by circumstantial evidence. There are also
disputed questions of fact regarding whether Plaintiffs acted in reliance on the misrepresentations
in the Rule 26 disclosures. Plaintiffs contend that they acted in reliance on the false information
in Defendants’ disclosures and settled their claims for the policy limits of the only policy
disclosed. For their part, Defendants argue that there are inconsistencies in the record regarding
the timing of the settlement demand and the production of the initial disclosures which create a
material issue of fact.
Defendants also challenge whether Plaintiffs’ alleged reliance was
justifiable.
At the summary judgment stage, the Court’s function is not to weigh the evidence and
determine the truth of the matter, but to determine whether there is a genuine issue for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Credibility determinations, the
weighing of evidence and the drawing of legitimate inferences from facts are jury functions.
Finally, whether and to what extent Plaintiffs were damaged due to Defendants’ failure to
disclose the additional policies is also a question of fact for the jury’s determination. Therefore,
a summary determination as to this issue cannot be made by the Court.
SIAC’s Individual Policies
Finally, SIAC asserts that its individual policies would not have been applicable to
Plaintiffs’ claims in the underlying action because each policy contained “joint venture”
exclusions. The policies in question include the following provisions:
Liberty Mutual Primary Policy
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A. Amendment – Named Insured
1. The term “Named Insured” includes in addition to the person or organization
designated in the Declarations as the “First Named Insured”:
a. See Attached Schedule [SIAC is a Named Insured]…
b. subject to 1.a. above, any other organization (except for a partnership,
joint venture or limited liability company) incorporated or organized under the
laws of the United States of America…
A partnership, joint venture or limited liability company is not a Named
Insured unless it is shown in 1.a. above. No person or organization is an insured
with respect to the conduct of any current or past partnership, joint venture or
limited liability company that is not shown as a Named Insured in 1.a. above.
****
Blanket Completed Operations Coverage for Past Joint Ventures
The following is added to Section II, “Who is an Insured:” With respect to
the “the product completed operations hazard of your work” you are an insured
for your bodily injury or property damage liability arising out of the conduct of
any joint venture(s) of which you were a member, even though the joint venture is
not shown as a Named Insured in the Declarations, This coverage will not insure
to the benefit of any other party except you.
(Doc. 102-10).
Clarendon National Policy
A.
Persons Insured
1.b. Any organization(s) you newly acquire or form, other than a
partnership or joint venture, and over which you maintain ownership or majority
interest will be deemed to be an insured…notwithstanding anything to the
contrary contained above, this policy does not apply to any liability arising out of
conduct of any current, past, or newly acquired or formed partnership or joint
venture that is not state in the Declarations of this policy as an Insured.
(Doc. 102-11).
Under Illinois law, a “joint venture” is simply defined as “an association of two or more
persons to carry out a single enterprise for profit.” Groark v. Thorleif Larsen & Son, Inc., 596
N.E.2d 78, 81 (1992). To determine the parties' intent to form a joint venture, the court must
find each of the following factors: (1) an express or implied agreement to carry on some
enterprise; (2) a manifestation of intent by the parties to be associated as joint ventures; (3) a
joint interest as shown by the contribution of property, financial resources, effort, skill or
knowledge; (4) a degree of joint proprietorship or mutual right to the exercise of control over the
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enterprise; and (5) provision for joint sharing of profit and losses.” Trustmark Ins. Co. v. Gen. &
Cologne Life Re of America, 424 F.3d 542, 547 (7th Cir. 2005) (citing Minyo v. Minyo, 581
N.E.2d 170, 173 (1991)). In the absence of any of the five elements, no joint venture exists.
O'Brien v. Cacciatore, 591 N.E.2d 1384, 1389 (1992). The burden of proving the existence of a
joint venture is on the person who claims such a relationship exists. Id. Ordinarily, the question
of whether a joint venture exists is a question for the trier of fact. Id. But, if there are no
material issues of fact appropriate for jury determination, the issue, is subject to summary
disposition.
Defendants, relying almost exclusively on the language of the Joint Venture Agreement,
assert that the undisputed material facts establish as a matter of law that they formed a joint
venture to complete the Project. First, Defendants point out that they bid on the Project as a joint
venture, were awarded the project as a joint venture and entered into a Joint Venture Agreement
to establish the parameters of their respective work. Defendants maintain that they both
contributed resources, skill and manpower necessary for completion of the Project.
Notwithstanding these facts and an express agreement between ETS and SIAC to carry
on “an enterprise with a common interest,” the evidence relating to the degree of joint
proprietorship and mutual right to exercise control over the enterprise does not support the
existence of a joint venture under Illinois law.
The right to control requires some right by the parties to direct and govern the conduct of
each other in connection with the joint venture. Edward Hines Lumber Co. v. Vulcan Materials
Co., 861 F.2d 155, 158 (7th Cir. 1988). When examining this element, Courts consider “whether
the parties manage their own affairs separately, whether they appoint persons to management
positions within the joint venture, whether they control the methods or policies used by each
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other, whether they exert or attempt to exert control over the work of the joint venture, and
whether any right to control is one-sided rather than mutual.” Quadro Enter., Inc. v. Avery
Dennison Corp., 2000 WL 1029176, at *7 (N.D. Ill. 2000); see also, Barton v. Evanston Hosp.,
513 N.E.2d 65, 67 (1987) (determining whether the parties exerted a “right to direct and govern
the policy and the conduct of the other in connection with the joint venture” is paramount to a
joint venture analysis); O'Brien, 591 N.E.2d at 1388–89; Clapp v. JMK.Skewer, Inc., 484 N.E.2d
918, 920–21 (1985)
In this case, the Joint Venture Agreement specifically states that each contractor “shall be
free to conduct its respective business in whatever manner it sees fit and that neither shall be
entitled to make nor be bound by any representations, actions or liabilities whatsoever done by
the other party.” It further provides that each contractor was responsible for a set of lanes – ETS
was “solely responsible” for the westbound lanes, while SIAC was “solely responsible” for the
eastbound lanes. Both contractors were “solely responsible” for the mainline pavement that each
installed on the Project, including “testing, incentive payments/deductions, and any required
corrective actions that maybe imposed by the Illinois Department of Transportation.” Finally,
each contractor “severally assume[d] all obligations and responsibilities to the Illinois
Department of Transportation.”
In spite of Defendants’ contentions to the contrary, in the absence of any other facts in
the record that would demonstrate that they conducted themselves inconsistent with the terms of
the Agreement, Defendants managed their Project related affairs separately, had no control over
the methods or policies used by the other in performing their portion of the Project and did not
have the ability to exert control over the work of the other. As such, the Court concludes that as
a matter of law, a joint venture did not exist between ETS and SIAC with respect to the Project
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and the aforementioned individual policies would have afforded coverage for the claims in the
underlying action. Defendant’s motion is denied on this point. 3
Conclusion
For the foregoing reasons, Defendant Southern Illinois Asphalt Company, Inc.’s motion
for summary judgment is denied in its entirety.
IT IS SO ORDERED.
DATED: February 3, 2017
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge
3
The Court granted summary judgment in Plaintiff’s favor on this issue on January 31, 2017 (Doc. 199).
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