public policy dictates that we should not enforce the contractual provision. Because we find that it may be possible for Hartford to prove facts that would entitle it to enforce the indemnity provision, we deny the motion to dismiss.
Under Illinois law parties may execute an indemnity agreement that encompasses the indemnitee's own negligence, as long as the agreement's language is clear and unequivocal. Native American Arts, Inc. v. Adobe Moon Arts, Inc., 2001 WL 55544, *3 (N.D. Ill. 2001); see also Allen v. International Harvester Co., 212 Ill. App.3d 655, 658-59, 571 N.E.2d 773, 776, 156 Ill. Dec. 793, 796 (Ill.App. 1st Dist. 1991). This does not mean that a contract must contain an express provision providing for coverage of the indemnitee's own negligence, only that an indemnity provision, if ambiguous, will not be interpreted in this way. Freislinger v. Emro Propane Co., 99 F.3d 1412, 1420 (7th Cir. 1996). To determine whether the contract at issue covers the indemnitee's own negligence, we must look at the particular language and the facts surrounding the execution of the contract. Native American Arts, 2001 WL 55544 at *3, citing Zadak v. Cannon, 59 Ill.2d 118, 121, 319 N.E.2d 469, 471-42 (Ill. 1974). The Illinois Supreme Court has stated that it serves "no useful purpose to attempt to analyze or reconcile the numerous cases interpreting indemnity clauses." Zadak, 319 N.E.2d at 472.
The current contract states that Mason will indemnify Hartford for "any and all loss" arising from the inspections. In looking at the case law cited by the parties, most cases dealing with similar "any and all" language have determined that this is sufficient to provide coverage for the indemnitee's own negligence. See Freislinger, 99 F.3d at 1420; Economy Mechanical Industries, Inc. v. T.J. Higgins Co., 294 Ill. App.3d 150, 155-56, 689 N.E.2d 199, 202-03, 228 Ill. Dec. 327, 330-31 (Ill.App. 1st Dist. 1997); Ahlvers v. Terminal R.R. Ass'n of St. Louis, 31 Ill. App.3d 166, 171, 334 N.E.2d 329, 333 (Ill.App. 5th Dist. 1975). Mason does direct our attention to one case that held that such language was insufficient. See Karsner v. Lechters Illinois, Inc., 331 Ill. App.3d 474, 476-77, 771 N.E.2d 606, 608, 264 Ill. Dec. 902, 904 (111. App, 3rd Dist. 2002). Based on the circumstances surrounding this contract, we believe, for the purposes of a motion to dismiss, that the former interpretation is correct. In agreeing to perform inspections, Hartford sought to protect itself from potentially large liability due to Mason's sales of the vessels to a third party.
This result is neither unfair nor unreasonable. Mason had the right to bargain with Lumbermens when signing the contract and later with Hartford to find the best deal available for the performance of the inspections. We must assume that Mason's representatives read and understood the contract and that it was willing to bear the costs as allocated by the contract terms. It cannot now determine that it is unhappy with the bargain and ask us not to enforce the contract.
Finally, it is not our place to determine whether a contract of this nature is in violation of public policy. Illinois has adopted statutes in other areas that prevent indemnitees from contracting to cover their own negligence. See, e.g., Construction Contract Indemnification for Negligence Act, 740 ILCS § 35/1; Managed Care Reform and Patient Rights Act, 215 ILCS § 134/95. While inspections of these vessels are required by the Boiler and Pressure Vessel Safety Act, 430 § ILCS 75/1 et seq., there is no analogous section in that act which serves to prevent coverage for the indemnitee's own negligence. It is not our place to expand this statute and determine that a contract of this nature violates public policy.
For the foregoing reasons, defendant Mason's motion to dismiss co-defendant Hartford's cross-claim for indemnity is denied.
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