The opinion of the court was delivered by: Judge James B. Zagel
MEMORANDUM OPINION AND ORDER
AirTran Airways, Inc. ("AirTran") and the City of Chicago entered into a lease agreement permitting AirTran to use the airfield at Midway Airport. On June 6, 2002, an AirTran Boeing 727 operated by Sharp Aviation, Inc. ("Sharp") collided with a tug operated by AirTran and escorted by the City. AirTran filed suit against Sharp and the City for property damage and lost profits.
In 2003, the City moved to dismiss both of AirTran's claims. I granted the City's motion to dismiss the negligence claim, finding that Section 13.01(a) of the parties' agreement indemnified the City against "any and all loss" arising from the City's negligence with respect to AirTran's use of Midway. I denied the motion to dismiss the breach of contract claim without prejudice, as it was unclear whether the indemnification clause could be applied to a breach of contract claim in a two-party suit.
The City subsequently filed a four-count counterclaim alleging AirTran's breach of the contract. Count I alleges that AirTran failed to require its subcontractor, Sharp Aviation, to carry insurance naming the City as an additional insured. Count II alleges AirTran's failure to name the City as an additional insured on a certain insurance policy. Count III alleges AirTran's failure to comply with the indemnity provisions of the agreement. Count IV alleges AirTran's failure to properly train, instruct and supervise its agents and employees in towing aircraft. AirTran moved to dismiss the counterclaim pursuant to Fed. R. Civ. P. 12(b)(6). That motion was stayed pending the parties' efforts to resolve their dispute with the guidance of the magistrate judge; having failed to do so, they asked for a ruling on AirTran's motion.
A motion to dismiss tests the sufficiency of a claim, not the merits of the case. See Autry v. Northwest Premium Servs. Inc., 144 F.3d 1037, 1039 (7th Cir. 1998). I should grant AirTran's motion only if the City cannot prove any set of facts in support of its claims that would entitle it to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In reviewing AirTran's motion, I must construe all allegations in the counterclaim in the light most favorable to the City and accept all well-pleaded facts and allegations as true. See, e.g., Bontkowski v. First Nat'l Bank, 998 F.2d 459, 461 (7th Cir. 1993). I may only grant AirTran's motion if "no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).
AirTran raises two arguments in its motion. First, it argues that the counterclaim is improper because the only damages alleged are attorneys' fees, which the City is not entitled to seek. Under Illinois law, a party cannot recover attorneys fees for a breach of contract action unless a prior agreement of the parties requires otherwise. See, e.g., West Lafayette Corp. v. Taft Contr. Co., 178 F.3d 840, 842 (7th Cir. 1999). The City claims that the lease agreement's indemnification provision imposes on AirTran an obligation to bear the City's costs in defending against any claims of negligence, including against a claim of negligence brought by AirTran. This leads to AirTran's second and fundamental objection to the City's counterclaims: that all of the City's counterclaims are based on the indemnification provision, which AirTran contends is inapplicable to disputes between the two parties to the agreement.*fn1
The heart of the matter is the City's allegation that AirTran violated the terms of the indemnity provision of the agreement when it filed suit against the City. Indemnity agreements are enforceable contracts, and I must interpret them to give effect to the parties' intent. See Higgins v. Kleronomos, 459 N.E.2d 1048 (Ill. App. Ct. 1984). However, indemnification agreements are not favored in Illinois, and their provisions are construed strictly against the indemnitees. See Church v. General Motors Corp., 74 F.3d 795 (7th Cir. 1996). The relevant provisions of this contract are found in section 13.01, which states in part:
(a) [AirTran] agrees to defend, indemnify and hold harmless the City, its . . . agents and employees from and against any and all loss, liability, penalties, damages of whatever nature, causes of action, suits, claims, demands, judgments, injunctive relief, awards and settlements, including, without limitation, payments of claims of liability resulting from any injury or death of any person or damage to or destruction of any property, arising out of:
(I) the willful misconduct, negligent or tortious act or omission of [AirTran], its Agents, employees, licensees, Contractors;
(ii) [Airtran]'s use or occupancy of the Airport and the Leased Premises;
(iii) the violation by [AirTran] of any agreement, warranty, covenant or condition of this Agreement, of any other contract, agreement, law, ordinance, regulation or court order affecting the Airport; and
(iv) suits alleging violations of any federal or state laws as a result of any actions taken by the Airline or the City . . .
(g) Without limiting the generality of any other provision hereof, the Airline shall reimburse the City for the cost of any and all reasonable attorneys' fees and investigation expenses and any other costs incurred by the City in the defense and handling of said suits and claims and in enforcing the provisions of this Agreement.
AirTran suggests that the indemnification provision is not triggered absent the involvement of a third-party. I have already ruled that there is no such prohibition on the use of an indemnity provision in a two-party suit. AirTran Airways, Inc. v. City of Chicago, No. 03 C 4685, 2003 U.S. Dist. LEXIS 26939 (N.D. Ill. Dec. 16, 2003) (citing Modern Steel Treating Co. v. Liquid Carbonic Industrial/Medical Corp., 698 N.E.2d 710, 713 (Ill. App. Ct. 1998)). See also Balcor Real Estate Holdings, Inc. v. Walentas-Phoenix Corp., 73 F.3d 150, 153 (7th Cir. 1996) (holding that a third-party was not required to invoke the indemnification provision and observing that "[r]estitution, insurance, and general ...