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Burke v. John Maneely Co.

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

January 3, 2017

JEFFREY E. BURKE and LISA SONGER-BURKE, Plaintiffs,
v.
JOHN MANEELY COMPANY, individually and d/b/a WHEATLAND TUBE COMPANY, and JOHN MANEELY COMPANY, individually and d/b/a JMC STEEL GROUP, Defendants,
v.
RANCO TRANSPORTATION, LLC, Third-Party Defendant.

          MEMORANDUM OPINION AND ORDER

          Robert M. Dow, Jr. United States District Judge

         Jeffrey Burke (“Burke”) and his wife Lisa Songer Burke (“Songer Burke”) (collectively, “Plaintiffs”) brought suit against Defendants John Maneely Company, individually and d/b/a Wheatland Tube Company and JMC Steel Group (collectively, “JMC”) for damages arising out of Burke's fall from a height at JMC's steel tube plant in Chicago. JMC filed a third-party complaint against Burke's employer, Ranco Transportation, LLC (“Ranco”), alleging that Ranco owes it contribution (Count I), contractual indemnity (Count II), and damages for breach of contract (Count III). Before the Court is Ranco's motion [108] for partial summary judgment in its favor and against JMC on JMC's claim for breach of contract (Count III). For the reasons stated below, Ranco's motion [108] is granted. This case is set for further status hearing on January 26, 2017 at 9:00 a.m.

         I. Background[1]

         JMC operates a steel tubing plant in Chicago. Burke was an employee of Ranco during the time relevant here. On December 9, 2013, Burke went to JMC's plant to pick up a load of tubes and/or pipes with his flatbed truck. While attempting to manually cover his load with a tarp, Burke fell from his flatbed truck and was injured. Burke and his wife brought suit against JMC in Cook County Circuit Court for premises liability based on JMC's negligence and/or willful and wanton acts and for loss of consortium. See [1] at 4-17. Plaintiffs allege that JMC's careless and negligent acts and omissions resulted in Burke slipping on oily pipes and/or tubes while attempting to place a tarp over his load, falling 13 feet, and incurring physical injuries. Id. at 5-6.

         JMC removed the lawsuit to this Court based on diversity jurisdiction. See id. at 1-3. JMC filed a third-part complaint [41] against Ranco alleging that Ranco owes it contribution (Count I), contractual indemnity (Count II), and damages for breach of contract (Count III). On February 5, 2016, the Court granted summary judgment for Ranco and against JMC on the contractual indemnity claim (Count II). See [105].

         Ranco now seeks summary judgment against JMC on its claim for breach of contract (Count III). In its breach of contract claim, JMC alleges that it is a third-party beneficiary of a contract between Mercer Transportation Co. (“Mercer”) and Ranco to broker the load of pipe/tubing from which Burke fell (the “Contract, ” [41] at 33-34). Ranco disputes that JMC is a third-party beneficiary to the Contract, but both parties acknowledge that the Contract contains the following provisions:

         Specific Duties & Obligations of Carrier [Ranco]

(3) Carrier shall have the duty to determine that each shipment is properly loaded, transported, and unloaded and agrees to indemnify, defend, and hold harmless Broker [Mercer], Shippers and Consignees, from and against all losses, damages, injuries and/or claims for same asserted by any and all persons, including the employees, agents, servants, passengers or guests of the carrier, in connection with the carriage of any and all goods and merchandise under this agreement.
(4) Carrier agrees to maintain cargo insurance in the minimum amount of $100, 000 and automobile and general liability insurance in the minimum amount of $1, 000, 000 to compensate those parties entitled to recover under the preceding paragraphs. If Carrier is a Corporation, Limited Liability Entity, or has Employees, then Carrier agrees to maintain Workers' Compensation Insurance. Carrier shall cause its insurance carrier(s) to forward forthwith to broker, standard certificate(s) of insurance and additional insured endorsement, naming broker as certificate holder and additional insured, Automotive Liability only. If Carrier is a one person Corporation or a Limited Liability Entity which has decided not to carry Workers' Compensation Insurance, the owner of such Carrier shall also enter into this agreement as an individual.

[41] at 33.

         JMC alleges that these provisions required Ranco to “provid[e] insurance for . . . JMC, for any injuries or claims for the same asserted in connection with the carrier of goods under the [Contract].” [41] at 6. In the alternative, JMC alleges that these provisions “impl[y] an obligation to provide insurance for the intended contract beneficiary shipper, JMC, for any injuries or claims for the same asserted in connection with the carrier of goods under the [Contract].” Id. JMC alleges on information and belief that Ranco failed to procure insurance for JMC and/or name JMC as an insured on any policies it obtained for Mercer and therefore is in breach of the Contract. Id. at 6-7. JMC seeks “costs, expenses, attorney's fees and damages pursuant to and consistent with the insuring provisions” of Ranco's insurance policies. Id. at 7.

         II. Summary Judgment Standard

         Summary judgment is proper where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record” or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). A genuine issue of material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment has the burden of establishing the lack of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Court “must construe all facts and draw all reasonable inferences in the light most favorable to the nonmoving party.” Majors v. Gen. Elec. Co., 714 F.3d 527, 532-33 (7th Cir. 2013) (internal quotation marks and citation omitted).

         To avoid summary judgment, the nonmoving party must go beyond the pleadings and “set forth specific facts showing that there is a genuine issue for trial.” Liberty Lobby, 477 U.S. at 250. Summary judgment is proper if the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Ellis v. CCA of Tennessee LLC,650 F.3d 640, 646 (7th Cir. 2011) (quoting Celotex, 477 U.S. at 322). The non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In other words, the “mere existence of a ...


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