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Russum v. ISG Riverdale

August 30, 2006


The opinion of the court was delivered by: Judge James B. Zagel


Plaintiff Shawn Russum has filed a claim against ISG Riverdale, Inc. ("ISG") for negligence which resulted in his injury while working on its premises. ISG has, in turn, filed a third-party complaint against Eagle Services Corp. ("Eagle"), Russum's employer. Eagle now files for summary judgment on the claims alleged against it. For the reasons below, Eagle's motion is denied.

I. Facts

Russum was employed by Eagle under a contract with ISG to clean hot ash material from the hoppers in an ISG facility in Riverdale, Illinois. On March 3, 2004, hot ash fell on top of him and buried him while he was working in a hopper. He claims that the accident occurred due to the negligence of ISG. After Russum filed suit alleging negligence against ISG, ISG filed a three-count third-party claim against Eagle.

In Count I, ISG claims that under the terms of its contract with Eagle, Eagle is required to indemnify ISG for costs, expenses, and attorneys' fees. Count II seeks contribution from Eagle under the Illinois Joint Tortfeasor Contribution Act for the amount equal to its pro rata share of liability. ISG claims this share should be one hundred percent, because all of the activities engaged in by Russum were under Eagle's complete control and direction. Count III alleges that Eagle failed to obtain the proper insurance agreed upon in the contract and, as a result, Eagle must compensate ISG for any and all attorneys' fees, costs, expenses, and any judgment entered against ISG.

Eagle has now filed a motion for summary judgment on the grounds that ISG is seeking indemnity for its own negligent acts, which is barred under Illinois law. Eagle also claims that it purchased the appropriate insurance coverage, as required by the contract. Both parties agree that Illinois Law governs this case.

Summary Judgment Standard

Summary judgment is proper if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-33 (1986). A genuine issue of material fact exists when there is evidence on the basis of which a reasonable jury could find in the plaintiff's favor, allowing for all reasonable inferences drawn in a light most favorable to the plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The movant must offer more than "[c]onclusory allegations, unsupported by specific facts" in order to establish a genuine issue of material fact. Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990)).



Eagle first claims that Count I of the Third-Party Complaint is invalid because the Construction Contract Indemnification for Negligence Act (the "Indemnity Act,"), 740 ILCS 35/1, applies to this case and bars ISG from forcing Eagle to indemnify it for any expenses and losses associated with Russum's suit. The Indemnity Act states:

With respect to contracts or agreements, either public or private, for the construction, alteration, repair or maintenance of a building, structure, highway bridge, viaducts or other work dealing with construction, or for any moving, demolition or excavation connected therewith, every covenant, promise or agreement to indemnify or hold harmless another person from that person's own negligence is void as against public policy and wholly unenforceable. 740 ILCS 35/1. The policy behind this clause is to motivate contractors to take all necessary precautions for the safety of construction workers and the general public. See Davis v. Commonwealth Edison Co., 336 N.E.2d 881, 884 (Ill. 1975).

ISG initially counters by arguing that Eagle has not met the two prerequisites in order to bar an agreement under the Indemnity Act. First, it claims that the Indemnification Act enumerates the activities that fall under its jurisdiction, and Eagle has not established that the contract between the two parties or the work Russum was performing involved any of those activities. Second, even if the Indemnity Act were to apply, the contract must express its intention to relieve ISG of its liability in unequivocal terms.

ISG has not supplied any facts that contradict Eagle's contention that Russum was cleaning ash out of a hopper at the time of the accident. That activity seems to clearly fall within the bounds of maintaining a structure. See, e.g., Doran v. Corn Products-U.S., Div. of CPC, Int'l, Inc., 776 F. Supp. 368, 374 (N.D. Ill. 1991) (cleaning a precipitator qualified as maintenance of a structure); Liccardi v. Stolt Terminals, ...

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