The opinion of the court was delivered by: SHADUR
Guest Quarters Suite Hotels ("Guest Quarters"), the original defendant in this action stemming from the fatal shooting of Rhoderick Rountree ("Rountree"), brought a third-party claim seeking contribution (in its Count I) and indemnification (in its Count II) from Standard Parking Corporation ("Standard"). Plaintiff Vivian DeMyrick ("DeMyrick," Rountree's mother and the representative of his estate) later added Standard as a direct defendant in her Amended Complaint. This Court's November 5, 1996 opinion (the "Opinion," 944 F. Supp. 661)
granted Standard's Fed. R. Civ. P. ("Rule") 56 motion for summary judgment against DeMyrick and also dismissed Count I of Guest Quarters' third-party claim against Standard. Because the Opinion denied Guest Quarters' simultaneous Rule 56 motion against DeMyrick, the question of Guest Quarters' negligence in connection with Rountree's death remains to be determined at trial.
Now Standard and Guest Quarters have filed cross-motions for summary judgment on Guest Quarters' Count II. Both parties have complied with this District Court's General Rule ("GR") 12(M) and 12(N),
and the cross-motions are fully briefed and ready for decision. For the reasons stated in this Opinion, Standard's motion is granted and Guest Quarters' motion is denied, so that its Count II is dismissed.
Summary Judgment Principles
Familiar Rule 56 principles impose on a party seeking summary judgment the burden of establishing the lack of a genuine issue of material fact ( Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). For that purpose this Court is "not required to draw every conceivable inference from the record--only those inferences that are reasonable"--in the light most favorable to the non-moving party ( Bank-Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991) and cases cited there). Where as here cross-motions for summary judgment are involved, those principles require the Court to take a dual perspective--one that this Court has frequently described as Janus-like and that may on occasion cause the denial of both motions. But there is no need to engage in that exercise here: As will be seen, Standard's motion is successful, mooting any need to look at the record through a lens that favors its factual contentions. What follows, then, is a version of the facts culled from the parties' submissions, with any differences between them resolved in Guest Quarters' favor.
In the early morning of May 25, 1992 Rountree, the road manager for Boyz II Men, was shot and killed in the Guest Quarters hotel located in downtown Chicago (S. 12(M) P1). Christopher Babbington ("Babbington"), an off-duty Standard employee who worked at the garage located on Guest Quarters' premises, was the shooter (S. 12(M) PP2, 4, 5). Accompanying Babbington at the time of the shooting were two friends from high school days, Christopher Foley ("Foley") and Kenneth Copeland ("Copeland") (S. 12(M) PP3, 13). Foley was also an off-duty Standard employee, but he was stationed at a different Standard garage (S. 12(M) PP7, 8), one a few blocks away that was designated for overflow parking if the Guest Quarters lot was full (G.Q. 12(N)(3)(b) P7
). Copeland, who was not employed by Standard, gave Babbington the gun that was then used in the shooting (S. 12(M) PP11, 12).
At issue for present purposes is whether in Standard's Garage Management and License Agreement ("Agreement," S. Ex. K) it had promised to indemnify Guest Quarters for any liability incurred as the result of Rountree's murder. Here is Agreement P10(e)(part of the Agreement's "Insurance; Indemnification" paragraph):
Operator [Standard] will defend, with counsel reasonably acceptable to Owner [Guest Quarters], hold Owner harmless, and indemnify Owner from and against any loss, cost, damage or liability including reasonable attorneys fees (collectively "Claim") arising out of Operator's operation of the Parking Facility, unless such Claim arises from the sole negligence or willful misconduct of Owner or from a latent defect in the Parking Facility. This paragraph shall survive the expiration or any sooner termination of this Agreement.
Guest Quarters claims that it is entitled to indemnification because Rountree's death "arose out of" the operation of the garage. In that respect Guest Quarters Mem. 14 argues that Standard (1) failed to screen Babbington and Foley properly when hiring them as employees and (2) failed to train and supervise its employees to prevent Foley and Babbington from coming to the premises while off-duty. Standard R. Mem. 9 counters that its hiring of Babbington and Foley and its training and supervision of its employees were not sufficiently causally linked to warrant a finding that Rountree's death "arose out of" Standard's operation of the garage. This opinion turns to Standard's Rule 56 motion in those terms.
Guest Quarters would have the Contract's indemnification provision interpreted in the broadest possible sense, under which any arguable connection--however remote--between Standard's actions and Rountree's death would be enough to trigger the indemnity clause irrespective of any proximate causal relationship or of any claimed fault on Standard's own part. But in so arguing, Guest Quarters Mem. 13 mistakenly relies on a series of cases that define the duty to defend rather than the duty to indemnify.
As taught by a host of Illinois cases, including the Guest-Quarters-cited decision in Aetna Cas. & Sur. Co. v. Prestige Cas. Co., 195 Ill. App. 3d 660, 664, 553 N.E.2d 39, 41, 142 Ill. Dec. 689 (1st Dist. 1990)(citations omitted):
It is settled law in Illinois that an insurer has two duties to an insured that may trigger the insurer's policy coverage: the duty to defend and the duty to indemnify. These are separate and distinct duties and the duty to defend is broader than the duty to indemnify.
By contrast, the actually relevant case law of indemnification reveals that Illinois permits indemnification against the indemnitee's own negligence only when there is "clear and explicit language of the contract [citations], or such intention is expressed in unequivocal terms" ( Tatar v. Maxon Constr. Co., 54 Ill. 2d 64, 67, 294 N.E.2d 272, 273 (1973), quoting Westinghouse Elec. Elevator Co. v. LaSalle Monroe Bldg. Corp., 395 Ill. 429, 432, 70 N.E.2d 604, 606 ...