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Sonnier v. Citgo Petroleum Corporation

United States District Court, N.D. Illinois, Eastern Division.

June 26, 2014

HOWARD KIRBY SONNIER, Plaintiff,
v.
CITGO PETROLEUM CORPORATION, Defendant. CITGO PETROLEUM CORPORATION, Third-Party Plaintiff,
v.
TURNAROUND WELDING SERVICES, LLC, and REPCON, INC., Third-Party Defendants.

MEMORANDUM OPINION AND ORDER

JOHN W. DARRAH, District Judge.

Plaintiff Howard Sonnier filed a complaint against CITGO Petroleum Corporation ("CITGO"), alleging negligence. CITGO filed a three-count Third-Party Complaint ("TPC") against Sonnier's employer, Turnaround Welding Services, LLC ("TWS"), and Repcon, Inc. ("Repcon"), alleging: (I) Contribution, (II) Indemnification, and (III) Breach of Contract. Repcon has moved to dismiss Count II of the TPC, pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim for which relief can be granted. For the reasons set forth below, Repcon's Motion to Dismiss is denied.

BACKGROUND

On May 16, 2013, Sonnier filed a complaint against CITGO alleging negligence causing personal injuries he sustained while working at CITGO's Lemont, Illinois refinery. (TPC ¶¶ 1-2.) At the time he was injured, Sonnier was employed by TWS, a subcontractor of Repcon. ( Id. ¶ 9.) Repcon was CITGO's general contractor for the work done at the Lemont, Illinois refinery, pursuant to the Service Contract ("Contract"). ( Id. )

Pursuant to the Contract, Repcon agreed to:

A) Initiate, maintain, and supervise all safety precautions and programs related to the Work site and to ensure the Work site is free of recognized hazards;
B) Ensure that Repcon personnel are fully informed regarding CITGO work and safety rules and regulations;
C) Be responsible for the acts and omissions of its subcontractors and all persons employed by subcontractors;
D) Maintain supervision of subcontractors;
E) Take reasonable precautions to prevent bodily injury or property damage;
F) Ensure that all Repcon and subcontractor personnel comply with CITGO safety regulations.

( Id. ¶¶ 18-23.) CITGO alleges that Repcon breached these provisions of the Contract. ( Id. ¶ 26.) The Contract also contained the following provisions:

To the fullest extent permitted by law, [Repcon] agrees to indemnify fully, hold harmless and defend, at [Repcon]'s sole expense, [CITGO], ... from and against any and all Liabilities and Damages claimed by [CITGO], [Repcon], [Repcon]'s subcontractors or third-parties, including employees of [Repcon], [CITGO] and their subcontractors, arising in connection with the Work under this contract, without regard to the cause or causes thereof, ... arising directly or indirectly out of or in any way connected with the performance of this contract or the work or operations covered or contemplated by this contract.
1.1.1 If this contract is for the construction, alteration, repair or maintenance of a building, structure, highway, viaduct or other work dealing with construction, or for any moving, demolition or excavation connected therewith, [Repcon] shall not be required and shall not be permitted to indemnify or hold harmless [CITGO] for [CITGO]'s own negligence. However, in such instances, [Repcon] shall be required to indemnify fully, hold harmless and defend [Repcon] for the ...

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