The opinion of the court was delivered by: Reagan, District Judge:
A jury trial commenced in this consolidated action on May 8, 2012, and concluded on June 1, 2012. On June 11, the Court provided the parties with a draft Judgment, allowing them until June 18 to object to the form of the Judgment (Doc. 486). On June 18, Defendant ConAgra Foods, Inc., filed its Objection to the Court's form of Judgment (Doc. 490). Among ConAgra's proposed amendments was the addition of Paragraph 9: "Becker -- ConAgra v. West Side third Party Complaint for Contribution; Kotecki waiver."*fn1
The Kotecki issue was first raised on January 20, 2012, when ConAgra moved for summary judgment on its third-party complaint against West Side Salvage, Inc., on the basis that West Side had waived any protections limiting its liability for contribution under Kotecki v. Cyclops Welding Corp., 585 N.E.2d 1023 (Ill. 1992). Finding that a genuine issue of material fact existed as to whether the April 19, 2010 contract was fully executed and governed the parties' relationship, the Court denied ConAgra's motion as to whether the contract was enforceable and reserved as to the Kotecki waiver (Doc. 403). On June 1, the jury found that ConAgra had proven that the April 19, 2010 contract between ConAgra and West Side was valid and awarded ConAgra $3,000,000.00 in damages for property damage.
The issues pending before the Court are (1) whether West Side agreed to the indemnification provision in the contract and knowingly bargained away its Kotecki protection; (2) whether ConAgra waived or abandoned its claim for contractual indemnification; (3) whether Illinois or Iowa law should apply to the issue; (4) whether the language of the indemnification clause constitutes a Kotecki waiver; and (5) whether the judgment should specify that liability is joint and several.
A. Whether West Side agreed to the indemnification provision West Side contends that there cannot be a finding of waiver because there is no evidence that it knowingly bargained away its Kotecki protection and, in fact, that testimony established the opposite. West Side submits that Ken Langham testified that he signed the contract without reading the terms and conditions and without understanding what he was signing. At trial, ConAgra questioned West Side's President Gene Schwers for hours without asking a single question about contract negotiations, execution or whether West Side intended to waive the Kotecki cap. West Side also asserts that the testimony of ConAgra's contract administrator, Cathy Rihanek, who stated that West Side had to sign the contract to get paid, shows that there was no bargained-for exchange. Lastly, West Side submits that ConAgra presented the jury with very specific questions regarding what West Side was required to do under the contract but did not ask the jury to decide whether and to what extent West Side agreed to the indemnity provision.
So, in essence, West Side asks the Court to strike the clause or render it a nullity. The jury decided that the April 2010 contract was valid and enforceable, so the Court's analysis begins with how Illinois courts interpret a contract.
Under Illinois law, "[a] contract must be construed as a whole, viewing each provision in light of the other provisions." Reserve at Woodstock, LLC v. City of Woodstock, 958 N.E.2d 1100, 1111-12, (Ill.App.Ct. 2011), citing Thompson v. Gordon, 948 N.E.2d 39 (Ill. 2011). "The parties' intent is not ascertained by viewing a clause or provision in isolation, or by looking at detached portions of the contract." Id., citing Thompson, 948 N.E.2d 39; Hot Light Brands, LLC v. Harris Realty, Inc., 912 N.E.2d 258 (Ill.App.Ct. 2009) (an agreement is to be interpreted as a whole; we should give meaning and effect to every provision when possible, and we will not interpret the agreement in a way that would nullify provisions or would render them meaningless). Or, summing up succinctly, contract interpretation "is not a smorgasbord at which you take what you like and leave what does not appeal to your tastes." Wells Fargo Funding v. Draper & Kramer Mortg. Corp., 608 F.Supp.2d 981, 987 (N.D.Ill. 2009).
As required by Illinois law and the basic principles of contract interpretation, the Court must give full meaning and effect to every provision of the April 2010 contract and may not interpret the contract in a manner that would nullify a provision. In short, the indemnification clause is valid and enforceable.
B. Whether Con Agra waived or abandoned its claim for contractual indemnification
West Side asserts that by not presenting evidence and not asking the jury to decide the factual issue of whether and to what extent West Side agreed to indemnify ConAgra, ConAgra waived its opportunity to have the legal issue of whether West Side waived its Kotecki protection decided by this Court as a matter of law. The undersigned Judge agrees that ConAgra waived or abandoned its claim for contractual indemnification. But it does not follow that ConAgra waived its claim that West Side waived its Kotecki protection. That is discussed below.
During ConAgra's lengthy examination of Schwers, it did not inquire about contract negotiation, contract execution or the issue of indemnity and the Kotecki cap. The questions directed to the jury for its verdict did not include any question regarding whether West Side was required to indemnify ConAgra. The jury found that West Side was required under the contract to (a) remove all pellets from bin 15, using vacuum, bin whip and entry as needed; (b) employ on the work only workers skilled in the task assigned to him; (c) be solely responsible for all construction means, methods, techniques, sequences and procedures and for coordinating all portions of the work; (d) be responsible for the acts and omissions of all his employees and all subcontractors, their agents and employees and all other persons performing any of the work under a contract with West Side Salvage; (e) be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the work, comply with all applicable laws, ordinances, rules, regulations and orders of any public authority having jurisdiction for the safety of persons or property or to protect them from damage, injury or loss; and (f) remedy without cost, charge or expense to ConAgra all damage or loss to any property caused in whole or in part by West Side Salvage, any subcontractor or anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable.
ConAgra presented no evidence on indemnification and did not ask the jury to decide the factual issue through an offered jury instruction. As a result, ConAgra waived or abandoned its claim for contractual indemnification, which was included in Count IV ...