United States District Court, Northern District of Illinois, E.D
May 28, 1985
U.S. HOME CORPORATION, PLAINTIFF,
GEORGE W. KENNEDY CONSTRUCTION COMPANY, DEFENDANT.
The opinion of the court was delivered by: Shadur, District Judge.
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
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
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
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
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.
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
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
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.