The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
Tuesday, 25 October, 2011 10:39:03 AM
Clerk, U.S. District Court, ILCD
Defendant, Bodine Environmental Services, Inc., filed an Amended Motion for Summary Judgment (#23) on February 24, 2011. After the Defendant's Motion for Summary Judgment was fully briefed by both parties, this Court denied the Motion for Summary Judgment in part and reserved ruling on the issue of willful and wanton negligence. This court instructed both parties to file supplemental briefs solely on the issue of willful and wanton negligence. Defendant filed its Supplemental Brief (#28) on June 27, 2011. Plaintiff, Cat Iron, Inc., filed its Supplemental Brief (#37) on October 7, 2011. Defendant filed a Reply (#40) on October 14, 2011. For the following reasons, Defendant's Amended Motion for Summary Judgment (#23) with regards to the willful and wanton negligence claim is GRANTED.
Plaintiff and Defendant entered into a contract whereby Defendant would inspect the Plaintiff's Intermet Facility in Decatur, Illinois, for asbestos containing materials ("ACMs") and issue a written report to the Plaintiff. Defendant, an Illinois corporation, submitted a proposal for a complete National Emission Standards for Hazardous Air Pollutants (NESHAPS) asbestos inspection and a comprehensive report of the findings of the inspection of the Intermet Facility with the cost not to exceed $6,100. On May 30, 2008, Robb Davis ("Davis"), Plaintiff's co-owner, on behalf of Plaintiff, a Pennsylvania corporation, accepted and signed the proposal. Item 5 of the Standard Terms and Conditions in the parties' contract states:
Item 5. Limitations of Liability. The CLIENT [Plaintiff Cat Iron, Inc.] agrees to limit Bodine's liability to the CLIENT and all parties claiming through the client or otherwise claiming reliance on Bodine's services, allegedly arising from Bodine's professional acts or errors or omissions, to a sum not to exceed Bodine's fees for the services performed on the project, provided that such claims are not attributable to Bodine's gross negligence or intentional misconduct. In this latter event, the limit of liability will be increased to $25,000 less any applicable insurance amount covering alleged damages or claims. In no event shall Bodine or any other party to this agreement, including parties which may have claim to have a direct or indirect reliance on Bodine's services, be liable to the other parties for incidental, indirect or consequential damages arising from any cause.
On July 7, 2008, Defendant sent its asbestos inspection report to Plaintiff and billed Plaintiff for the asbestos inspection, sampling, and written report. After Defendant's report was sent to the Plaintiff, Davis, who hired the Defendant on behalf of Plaintiff, with the assistance of David Stowers ("Stowers") of Parkland Environmental, discovered that there were additional ACMs at the Intermet Facility that were not specifically identified in the Defendant's report. The failure to identify these additional ACMs led to this lawsuit.
Plaintiff filed its Amended Complaint (#11) on August 4, 2010. In its Amended Complaint, Plaintiff alleged damages in excess of $75,000 on each of the four counts contained in its First Amended Complaint: (1) breach of contract; (2) breach of express warranty; (3) negligence (and in the alternative Plaintiff plead that Defendant was guilty of willful and wanton acts or omissions, such as intentionally or with conscious disregard failing to identify several ACMs); and (4) negligent misrepresentation. Defendant filed its Answer, Affirmative Defenses, and Counterclaim to Plaintiff's First Amended Complaint (#15) on August 18, 2010. Defendant plead three affirmative defenses: (1) any damages Plaintiff can recover are limited by the limitation of liability clause set forth in the parties' contract; (2) under the parties' contract, the Plaintiff discharged and released Defendant from any damage in excess of Defendant's fees for the services performed, which was $6,080; and (3) the district court lacks subject matter jurisdiction because the parties' contract limits the Plaintiff's damages to an amount below the amount in controversy requirement for diversity jurisdiction.
II. RULE 30(b)(6) DEPOSITION
On October 5, 2010, during discovery in this case, Defendant served upon Plaintiff a Federal Rule of Civil Procedure 30(b)(6) Notice of ...