The opinion of the court was delivered by: Herndon, District Judge
In this case, Plaintiff has filed a suit for damages to its warehouse allegedly caused by mine subsidence. Pending before the Court are summary judgment motions, filed by the parties. Plaintiff Wilke Window & Door Company ("Wilke") moves for a partial summary judgment (Doc. 42) in its favor on liability regarding Count I of its Complaint (Doc. 2), which states a claim of negligence. Intervening plaintiff Illinois Mine Subsidence Insurance Fund (the "Fund"), moves for summary judgment (Doc. 42) in its favor regarding its Intervening Complaint (Doc. 23) on both liability and damages. Defendant Peabody Coal Company ("Peabody"), has also moved for summary judgment (Doc. 40) in its favor on the grounds that Plaintiffs' claims are barred. Thus, the Court must first look at the issue of whether any or all of Plaintiffs' claims are barred. If so, the Court need not delve further. However, if Peabody's affirmative defenses do not prevail, the Court must then turn to the issue of liability and finally, damages.
Wilke owns property in St. Clair County, Illinois (the "Wilke Property") and on this property, it built a large warehouse to use for its business. It is undisputed that the Wilke Property is located above the St. Ellen mine, which is an underground coal mine encompassing more than 3800 acres. The parties do not dispute that the St. Ellen mine is what is known as a "room and pillar" mine. As explained by the briefs, room and pillar mining is a method of removing coal from underground; the mined out areas thus become the "rooms." Yet, this mining methodology requires some of the coal to remain. "Pillars" must be formed from remaining coal and rock in order to provide the primary and permanent support for these rooms and ultimately, the overlying strata, including the surface of the earth above the mine. Generally, these pillars are quite large, measuring at least 30 feet square. The ultimate design of a room and pillar mine, therefore, depends substantially upon the number, size and placement of the pillars. Secondary support, such as timber, cribbing, bolts, blocking and backfill material, was also likely installed in the St. Ellen mine.
Mine subsidence is the effect resulting from the failure of a pillar or series of pillars over time, caused by factors such as deterioration of pillars, design defects or certain geologic occurrences. When the overlying strata collapses due to mine subsidence, the surface realty above the mine can also subside, causing damages. Also undisputed by the parties is the fact that the mining affecting the Wilke property took place no later than 1960, as that is the year Peabody ceased mining the St. Ellen mine. The mine was then closed and abandoned.
Wilke alleges it first noticed its warehouse seemed to have structural damage in late November 2000. Wilke filed a claim with its insurance company, Federated, for this suspected mine subsidence damage. The Fund, created by the State of Illinois to provide reinsurance for certain mine subsidence losses to properties located in-state, received Wilke's claim, forwarded by Federated. During its investigation of Wilke's claim, the Fund geologist concluded that mine subsidence of the St. Ellen mine caused damage to the Wilke Property and warehouse. Due to this finding, the Fund paid the maximum amount of reinsurance for Wilke's claim: $350,000.00. However, Plaintiffs assert that the actual damage substantially exceeds this amount.
Wilke then filed suit against Peabody in state court, on April 21, 2005, alleging two Counts: Count I for negligence for Peabody's failure to provide adequate support for the land surface above the St. Ellen mine and Count II pursuant to the Illinois Surface Coal Mining Land Conservation and Reclamation Act ("SCMLCRA"), 225ILL.COMP.STAT.720/4.02.*fn1 On the basis of diversity jurisdiction, 28 U.S.C. § 1332, Defendant timely removed Wilke's suit; Wilke did not pursue a remand. In October 2005, the Fund moved to intervene (Doc. 14) as an additional plaintiff in this matter, pursuant to 215 ILL.COMP.STAT. 5/815.1, claiming it is "subrogated to the right of Wilke against Defendant and has the legal right to sue in its own name for its loss it paid relating to mine subsidence damage to the warehouse . . ." (Doc. 23, ¶ 14). In other words, the Fund seeks to recover from Peabody the $350,000.00 it paid to Wilke for its mine subsidence claim, pursuant to the Fund's reinsurance agreement with Wilke's insurer, Federated.
As previously stated in this Order, Wilke and the Fund have filed a joint Motion for Summary Judgment (Doc. 42) and Peabody has filed its own Motion for Summary Judgment (Doc. 40). Both Motions have been fully briefed and are ripe for resolution.
Summary judgment is appropriate under the Federal Rules of Civil Procedure when "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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The movant bears the burden of establishing the absence of factual issues and entitlement to judgment as a matter of law. Wollin v. Gondert, 192 F.3d 616, 621-22 (7th Cir. 1999). The Court must consider the entire record, drawing reasonable inferences and resolving factual disputes in favor of the non-movant. Schneiker v. Fortis Ins. Co., 200 F.3d 1055, 1057 (7th Cir. 2000); Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999).
Both summary judgment motions, although premised upon different legal grounds, interconnect such that an argument advanced by one side in favor of its motion becomes its defense against granting the other side's motion and vice-versa (i.e., Peabody, in its Response, also adopts its own Motion for Summary Judgment and supporting memorandum as its opposition to Plaintiffs' Motion for Summary Judgment). Yet, because Peabody's asserted grounds for summary judgment are largely affirmative defenses which, if ...