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McCoy v. Iberdrola Renewables, Inc.

United States Court of Appeals, Seventh Circuit

October 7, 2014

AARON MCCOY, Plaintiff,
v.
IBERDROLA RENEWABLES, INC., and STREATOR-CAYUGA RIDGE WIND POWER, LLC, Defendants, Third-Party Plaintiffs, and GAMESA TECHNOLOGY CORPORATION, INC., and GAMESA WIND US, LLC, Defendants, Third-Party Plaintiffs, Counter Defendants-Appellees,
v.
OUTLAND RENEWABLE ENERGY, LLC, n/k/a RENOVO RENEWABLE ENERGY, LLC, and OUTLAND ENERGY SERVICES, LLC, n/k/a NORTHWIND HOLDINGS, LLC, f/k/a OUTLAND RENEWABLE ENERGY FIELD SERVICES, LLC, Third-Party Defendants, Counter Plaintiffs-Appellants

Submitted August 28, 2014

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 11-CV-00592--Charles P. Kocoras, Judge.

For AARON MCCOY, Plaintiff: Dominic R. Fichera, Attorney, FICHERA & MILLER PC, Chicago, IL.

For GAMESA TECHNOLOGY CORPORATION, INC., a Delaware corporation, GAMESA WIND US, LLC, Defendants - Appellees Julie Negovan, Attorney, KUTAK ROCK LLP, Philadelphia, PA; Matthew M. Enenbach, Attorney, KUTAK ROCK LLP, Omaha, NE.

For STREATOR-CAYUGA RIDGE WIND POWER, LLC, Defendant: Kurt E. Olsen, Attorney, LAW OFFICES OF KURT E. OLSEN, Chicago, IL.

For OUTLAND RENEWABLE ENERGY, LLC, now known as RENOVO RENEWABLE ENERGY, LLC, OUTLAND ENERGY SERVICES, LLC, now known as NORTHWIND HOLDINGS, LLC, formerly known as OUTLAND RENEWABLE ENERGY FIELD SERVICES, LLC, Defendants - Appellants: Thomas Melone, Attorney, ALLCO RENEWABLE ENERGY LIMITED, New York, NY.

For IBERDROLA RENEWABLES, INC., an Oregon corporation, Defendant: Howard J. Roin, Attorney, MAYER BROWN LLP, Chicago, IL.

Before BAUER, ROVNER, and HAMILTON, Circuit Judges.

OPINION

Page 536

Hamilton, Circuit Judge.

We previously affirmed the judgment of the district court dismissing the third-party counterclaims of the Outland entities. 760 F.3d 674 (7th Cir. 2014). After we issued the opinion, the Outland appellants filed a petition for rehearing by the panel. The Gamesa appellees filed a motion for sanctions under Federal Rule of Appellate Procedure 38. For the reasons explained below, we deny the petition for rehearing and grant the motion for sanctions. We presume a reader's familiarity with our opinion on the merits.

I. Petition for Rehearing

The petition for rehearing argues tat the court misinterpreted Illinois law in affirming the district court's rejection of Outland's proposed counterclaim for tortious interference with prospective economic advantage. Contrary to the petition, the court did not hold that the tort required allegation and proof of direct communication between the defendant and the third party. The court said that actions had to be directed to the relevant third party, which is consistent with the cited cases, F:A J Kikson v. Underwriters Laboratories, Inc., 492 F.3d 794, 800 (7th Cir. 2007), and Galinski v. Kessler, 134 Ill.App.3d 602, 480 N.E.2d 1176, 1180, 89 Ill.Dec. 433 (Ill. App. 1985), and not inconsistent with the case cited in the petition for rehearing, Schuler v. Abbott Laboratories, 265 Ill.App.3d 991, 639 N.E.2d 144, 147, 203 Ill.Dec. 105 (Ill. App. 1993) (rejecting requirement of direct contact with third party); cf. Grund v. Donegan, 298 Ill.App.3d 1034, 700 N.E.2d 157, 161, 233 Ill.Dec. 56 (Ill. App. 1998) (affirming dismissal of claim where defendant was not alleged to have directed communications directly or indirectly toward the third party).

The petition for rehearing also asserts that the court's opinion failed to address Outland's attempt to revive an indemnification claim against Gamesa for the fines that Outland paid to the federal Occupational Safety and Health Administration (OSHA) based on the injuries to Mr. McCoy, whose accident was the original basis for this lawsuit. Outland's counsel conceded at oral argument that the factual foundation for its argument, the settlement agreement, was not part of the record on appeal, and counsel did not know if the agreement was even in the district court record. That is ample reason to reject the argument, but in any event we agree with the district court that the proposed claim for indemnification of the OSHA fines ...


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