The opinion of the court was delivered by: David G. Bernthal U.S. Magistrate Judge
In June 2006, Plaintiff Joseph Beavers, deceased, by his Administrator, Roman Dalton, filed a Complaint (#1) against Defendant Dan Walsh in his official capacity as the Champaign County Sheriff (hereinafter "CCS"), alleging a violation of Beavers' civil rights pursuant to 42 U.S.C. § 1983. In April 2007, CCS filed a Third Party Complaint (#20) against Evercom Systems, Inc. (hereinafter "Evercom"), alleging negligence, breach of contract, indemnification, and contribution. Federal jurisdiction over CCS's third-party claims is based on supplemental jurisdiction pursuant to 28 U.S.C. § 1367. The parties have consented to the exercise of jurisdiction by a United States Magistrate Judge.
In May 2007, Evercom filed a Motion To Dismiss (#25). After reviewing the pleadings and memoranda, this Court GRANTS Evercom's Motion To Dismiss (#25) in part and DENIES it in part.
CCS alleged the following factual information in its third-party complaint against Evercom. On January 17, 2003, Evercom entered into an exclusive contract with CCS to install and maintain an inmate telecommunication system in all of its jail and detention facilities. (#20-2, ¶ 1-2.) The contract is in the form of CCS's request for proposal with Evercom having provided a written response to each paragraph of the proposal. In the contract, Evercom agreed to install and maintain telephones with six-inch-long phone cords "in order to deter suicide attempts" in the jails. (#20-2, ¶ 3; A Proposal to Provide Public and Inmate Phone Service, #28-2, p. 36.) Also as part of the contract, Evercom agreed to:
[I]ndemnify, hold harmless and defend the Champaign County Board, Sheriff, Correctional employees, and County employees against all liability, claims and costs of whatever kind and nature of injury or death of any person or persons . . . occurring in conjunction with, or in any way incident to, or arising out of the occupancy, use, service, operations, or work in conjunction with this agreement, resulting in whole or in part from the negligent acts or omissions of the offeror, its employees, agents, or representatives. (#28-2, p. 34.) In addition, Evercom agreed to maintain comprehensive general liability insurance coverage naming CCS as an additional party on that insurance policy. (#20-2, ¶ 22.)
On June 26, 2004, Beavers committed suicide by hanging himself with one of the phone cords maintained by Evercom. (#20-2, ¶ 4.) The cord used in the apparent suicide was over six inches in length. (#20-2, ¶ 5.) The County had not been notified or warned that Evercom had failed to maintain the telephone cords at six inches or less. (#20-2, ¶ 11(b).)
In March 2007, CCS filed a third-party complaint (#20-2) against Evercom alleging negligence, breach of contract, indemnification, and contribution. In May 2007, Evercom filed a motion to dismiss CCS's breach of contract and indemnification claims based on failure to state a claim.
When considering a motion to dismiss, the Court must accept all well-pleaded factual allegations in the claim as true, and draw all reasonable inferences in favor of the nonmoving party. Gutierrez v. Peters, 111 F.3d 1364, 1368-69 (7th Cir. 1997). Further, the Court should dismiss the claim only if the nonmoving party cannot prove any set of facts consistent with the allegations of the complaint that would entitle him to relief. Bennett v. Schmidt, 153 F.3d 516, 518-19 (7th Cir. 1998).
Evercom argues that the Court should dismiss both the indemnification claim and the breach of contract claim because they both fail to state a claim.
A. CCS's Indemnification Claim
Evercom first argues that the Court should dismiss CCS's indemnification claim because Beavers' suicide did not arise out of or in connection with Evercom's performance of its duties; Illinois law requires a clear, explicit, or unequivocal expression of intent to indemnify a party for its own wrongful acts; and agreements to indemnify a party against its own willful misconduct are void as against public policy under Illinois law. Evercom also argues that the Court should dismiss any separate theory of indemnity CCS may be attempting to make regarding a breach of the agreement "to maintain comprehensive general liability insurance coverage with [CCS] being named as an additional insured party." (#20-2, ¶ 22.)
Evercom first argues that the contract does not provide CSS a remedy for CCS's conduct because Beavers' suicide did not arise out of or in connection with Evercom's performance of its duties. Specifically, Evercom contends that Beavers' suicide was a voluntary, intentional act that cut off any chain of causation leading to Evercom. In support, Evercom relies on Little v. Chicago Hoist & Body Co., 32 Ill.2d 156, 158-59 (Ill. 1965) (stating that "[t]he universal rule followed by most jurisdictions is that the victim's act of suicide is a new and independent agency breaking the chain of causation from the negligent act and is not reasonably foreseeable"), and Cleveland v. Rotman, 297 F.3d 569, 572-73 (7th Cir. 2002) (stating that suicide breaks the chain of causation between alleged attorney malpractice and the client's death).
Illinois courts have held that:
Where it is reasonably foreseeable that a patient by reason of his mental or emotional illness may attempt to injure himself, those in charge of his care owe a duty to safeguard him from his self-damaging potential. This duty contemplates the reasonably foreseeable occurrence of self-inflicted injury ...