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United States District Court, Northern District of Illinois, E.D

May 28, 1985


The opinion of the court was delivered by: Shadur, District Judge.

                             MEMORANDUM OPINION
                                 AND ORDER

U.S. Home Corporation ("U.S. Home") has moved under Fed.R.Civ.P. ("Rule") 12(f) to strike the three affirmative defenses added by the Amendment to Answer (the "Amendment") filed by George W. Kennedy Construction Company, Inc. ("Kennedy"). For the reasons stated in this memorandum opinion and order, U.S. Home's motion is granted as to two of those defenses and denied as to the third.*fn1


Given the narrow scope of the current motion, only a skeletal outline of the relevant facts and a summary of the three defenses are called for. This outline and summary are drawn from the pleadings (U.S. Home's Complaint and the Amendment), of course with no implication of any findings either way.

Real estate developer U.S. Home suffered more than $450,000 in damages when the sanitary sewer installation for its major single family residence development in Lindenhurst, Illinois proved defective and actually collapsed in part Kennedy had installed the system under contract from U.S. Home.

U.S. Home sues Kennedy on four theories:

    1. for breach of contract (including Kennedy's
  nonconformity to the plans and specifications prepared
  by codefendant Mackie Consultants, Inc. ["Mackie"])
  (Complaint Count I);

    2. for breach of warranty of workmanship (Complaint
  Count II);

    3. for negligence (including Kennedy's (a)
  nonconformity to Mackie's plans and specifications and
  (b) faulty workmanship) (Complaint Count III); and

    4. for another, much smaller and separate breach of
  contract claim (Complaint Count IV).

Kennedy's Amendment responds with three affirmative defenses:

    1. Estoppel. Because U.S. Home inspected and
  accepted Kennedy's work at all stages of construction
  and Kennedy reasonably relied on those acceptances,
  U.S. Home is now estopped from claiming a breach of
  contract or warranty by Kennedy.

    2. Impossibility. Kennedy was bound to and did
  construct the sewers in conformity with Mackie's
  plans, which U.S. Home had accepted. But those plans
  were so defective as to make it impossible for a sewer
  system conforming to them to function properly. Any
  breach of contract or warranty is therefore excused
  for impossibility.

    3. Comparative fault. U.S. Home contributed to any
  defects in the sewer system by (a) providing faulty
  plans and specifications and (b) failing properly to
  supervise Kennedy's work to ensure compliance with the

Rule 12(f) Standards

United States v. 418.81 Acres of Land, 514 F.2d 627, 630-31 (7th Cir. 1975) cast the criteria for Rule 12(f) motions in terms strikingly similar to those under Rule 12(b)(6). For Rule 12(f) purposes well-pleaded factual allegations in an affirmative defense are accepted as true, and the defense cannot be stricken if it presents a substantial question of law or fact or if there is any possibility the defense could succeed after a full hearing on the merits (id.). Even under that lenient standard, Kennedy's estoppel and impossibility defenses must be stricken.


U.S. Home's Memorandum asserts several grounds for striking the estoppel defense. Because one of them clearly has merit, the others need not be discussed.*fn2

U.S. Home urges Kennedy expressly waived its right to raise the estoppel defense via its contract with U.S. Home. In relevant part Paragraph 27B of that contract reads:

  [U.S. Home] shall not be precluded or estopped by . .
  . acceptance of the work and payment therefor . . .
  for [sic] recovering from [Kennedy] . . . such damage
  as it may sustain by reason of [Kennedy's] failure to
  comply with the terms of the contract. Neither the
  acceptance by [U.S. Home] or its representative, nor
  any payment for or acceptance of the whole or any part
  of the work . . . shall operate as a waiver of any
  portion of the contract . . . or of any right to
  damages herein provided.

That language admits of only one meaning: It is an unequivocal agreement U.S. Home's acceptance of the sewer work would not bar U.S. Home from claiming faulty workmanship and recovering damages. Having so agreed, Kennedy must be held to its bargain. Brownell Improvement. Co. v. Critchfield, 197 Ill. 61, 69-70, 64 N.E. 332, 334 (1902); Ramonas v. Kerelis, 102 Ill. App.2d 262, 270-71, 243 N.E.2d 711, 715 (1st Dist. 1968).*fn3


U.S. Home argues with considerable force that Kennedy's impossibility defense is insufficient as a matter of law.*fn4 This Court need not decide that issue, however, because in any event that defense seeks to controvert (or misses the whole point of) the Complaint. By definition an affirmative defense conforms to what, in the days of common-law pleading, was termed a plea in confession and avoidance: one that admits the truth of the complaint's allegations but states new matter that exculpates the defendant. See Rule 8(c); Institution Nacional de Comercializacion Agricola v. Continental Illinois National Bank and Trust Company of Chicago, 576 F. Supp. 985, 988 (N.D.Ill. 1983).

Here U.S. Home has not sought to make Kennedy a guarantor of the proper functioning of the sewer system. Rather the Complaint charges Kennedy only with (1) faulty workmanship and (2) failure to conform its work to U.S. Home's plans.

Kennedy's purported affirmative defense does not contend the defective plans rendered impossible its performance of those two obligations. On the contrary, Kennedy's position at every turn has been that its construction was both workmanlike and in strict compliance with the plans. Its contention that the system could not possibly have functioned properly in spite of Kennedy's performance of its obligations is simply not an affirmative defense to U.S. Home's claims as stated in the Complaint.*fn5

Comparative Fault

Kennedy's comparative fault defense charges U.S. Home (1) provided faulty plans and (2) failed to supervise the construction work. U.S. Home states two baseless objections in support of its motion to strike.

First U.S. Home argues—without citation of authority—Kennedy's failure-of-supervision defense must be stricken for its failure to allege U.S. Home was aware of Kennedy's defective performance. U.S. Home apparently believes it cannot be held liable for a failure to direct Kennedy to repair Kennedy's mistakes unless U.S. Home actually knew of those mistakes.

That position defies common sense. If U.S. Home were—as Kennedy alleges— under a duty to "oversee or supervise" Kennedy's work, then U.S. Home had an obligation to inspect and investigate that work to ensure it was performed properly.*fn6 U.S. Home's ignorance of defects may therefore be a result of its negligence in supervision. Under that scenario U.S. Home's ignorance-far from exonerating it—becomes a cornerstone of its liability.

U.S. Home's second attack on the supervision defense-as groundless as the first—is that U.S. Home had no power to supervise Kennedy because Kennedy was an independent contractor. U.S. Home argues Kennedy's independent status derives from Article 11 of the U.S. Home-Kennedy contract:

  The status of [Kennedy] is that of independent
  contractor and an employing unit subject as an
  employer to all applicable unemployment compensation
  statutes so as to relieve [U.S. Home] from any and
  [sic] responsibilities thereunder toward employees of

But that provision is obviously aimed toward rebutting any possible argument people on Kennedy's payroll are employees of U.S. Home for unemployment compensation purposes. It does not by any stretch convey a general independent contractor status on Kennedy in all respects and for all purposes. Indeed, Kennedy's independent contractor status (if it were to exist) is not mutually exclusive of a supervisory right and duty on U.S. Home's part.*fn7 Discernment of such status and its legal consequences are also matters best left for another day.


Kennedy's First and Second Additional Defenses are insufficient as a matter. of law and are stricken from the Amendment. Kennedy's Third Additional Defense remains intact.

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