United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
CASTILLO CHIEF JUDGE
Woods ("Woods") and Michael Johnson
("Johnson") (collectively, "Plaintiffs")
bring separate but related personal injury actions against
Amazon.com, LLC ("Amazon"), Duke Realty Limited
Partnership ("Duke"), and Steel King Industries,
Inc. ("Steel King") (collectively, the
"Defendants"). (17-cv-4339 [hereinafter '4339],
R. 141, Third Am. Compl.; 17-cv-7335 [hereinafter '7335],
R. 106, Second Am. Compl.) Defendants bring third-party
contribution claims against Lakeside Rack Installers, Inc.
("Lakeside"), all of which arise out of the events
alleged in Plaintiffs' personal injury actions.
('4339, R. 45, Third-Party Compl.; id, R. 46,
Third-Party Compl.; id, R. 138, Am. Third-Party
Compl.; '7335, R. 33, Third-Party Compl.; id, R.
57, Third-Party Compl.; id, R. 103, Am. Third-Party
Compl.) Pursuant to Federal Rule of Civil Procedure 12(b)(6),
Lakeside moves in both cases to partially dismiss Steel
King's amended third-party complaints. ('4339, R.
224, Mot. at 7; '7335. R. 188, Mot. at 7.) For the reasons
stated below, Lakeside's motions to dismiss are denied.
allege that Duke's, Amazon's, and Steel King's
negligence caused the injuries Plaintiffs sustained on a
construction project when a forklift crashed into a
structure, causing the structure to collapse on Plaintiffs.
('4339, R. 141, Third Am. Compl. ¶¶ 11-68;
'7335, R. 106, Second Am. Compl. ¶¶ 11-68.) The
structure at issue was a steel shelving rack Plaintiffs were
building inside a newly-constructed warehouse that would
serve as an Amazon distribution center. (See
'4339, R. 150, Answer ¶¶ 12-13; id, R.
303, Resp. to Def.'s Facts ¶¶ 8-10, 14;
'7335, R. 114, Answer ¶¶ 12-13; id, R.
265, Resp. to Def.'s Facts ¶¶ 8-10, 14.)
claim that the structure collapsed because of unsafe
construction practices and a rushed schedule on the
construction project, which they allege was controlled by
Amazon, Duke, and Steel King. ('4339, R. 141, Third Am.
Compl. ¶¶ 8-68; '7335, R. 106, Second Am.
Compl. ¶¶ 8-68.) Steel King, Duke, and Amazon have
all filed third-party complaints for contribution against
Lakeside, who was Plaintiffs' employer. ('4339, R.
45, Third-Party Compl. ¶¶ 5-12; id, R. 46,
Third-Party Compl. ¶¶ 5-12; id, R. 138,
Am. Third Party-Compl. ¶¶ 3-11; '7335, R. 103,
Am. Third-Party Compl. ¶¶ 3-11; id, R. 57,
Third Party-Compl ¶¶ 4-12; id, R. 33,
Third Party Compl. ¶¶ 4-12.)
King alleges in its amended third-party complaint that,
pursuant to the terms of a purchase order entered into
between Steel King and Lakeside, Lakeside waived "any
protection or damages limitation it may have otherwise
enjoyed or been entitled to under Illinois law."
('4339, R. 138, Am. Third-Party Compl. ¶ 11;
'7335, R. 103, Am. Third-Party Compl. ¶ 11.) Steel
King attaches to its complaint a "New Vendor Application
Form" ("NVA Form") and an unsigned purchase
order that contains an indemnity provision in which Lakeside
agrees to "indemnify, defend, and hold harmless"
Steel King "from and against any claim, liability, loss,
damage, lien, judgment... and cost, including attorneys'
fees and litigation expenses, arising out of...
[Lakeside's] failure to comply with any of its
obligations under [the purchase order.]" ('4339, R.
138-1 at 11, NVA Form & Purchase Order; '7335, R.
103-1 at 11, NVA Form & Purchase Order.) The NVA Form,
which is signed by a Lakeside representative, provides that
Lakeside "agrees to all purchase order terms and
conditions listed in the attached conditions sheet."
('4339, R. 138-1 at 6, NVA Form & Purchase Order;
'7335, R. 103-1 at 6, NVA Form & Purchase Order.) The
NVA Form also has a checklist for Steel King to "check
off that... the following information has been
received," which indicates that Steel King received a
"Signed Copy" of the purchase order terms and
conditions. ('4339, R. 138-1 at 6, NVA Form &
Purchase Order; '7335, R. 103-1 at 6, NVA Form &
moves to dismiss Steel King's claims that Lakeside waived
damages limitations under Illinois law by agreeing to
indemnify Steel King, first arguing that the indemnification
provision is not binding because the purchase order
containing the indemnification provision is unsigned.
('4339, R. 224, Mot. at 2.) Lakeside then argues that
even if the purchase order was in effect, the purchase order
does not explicitly waive Lakeside's rights under
Illinois law to limit its contribution liability for
workplace injuries to the amount Lakeside is liable for
workers' compensation. (Id. at 2, 4-7.)
response, Steel King maintains that the purchase order is
effective without a signature because the parties assented to
the terms of the purchase order even though they did not sign
it. (Id., R. 369, Resp. at 3-4.) More specifically,
Steel King argues that the terms of the purchase order were
incorporated by reference into the NVA Form, which was signed
by a Lakeside representative. (Id.) Steel King then
contends that, under Illinois law, the indemnity provision in
the purchase order waives Lakeside's right to cap its
liability for contribution to the amount Lakeside is liable
for workers' compensation. (Id. at 4-7.) Steel
King asks the Court to find as a matter of law that Lakeside
waived any such damages limitation. (Id. at 5-7.)
filed a reply and argues-at odds with its motion to
dismiss-that "it is premature" to decide the issue
as a matter of law since there has "been no testimony or
evidence as to whether the [purchase orders' terms] were
a part of the agreement between Steel King and
Lakeside." (Id., R. 380, Reply at 6.) According
to Lakeside, "it is unclear what agreement" with
Steel King controls the parties' relationship.
(Id. at 7.)
motion to dismiss pursuant to Rule 12(b)(6) challenges the
viability of a complaint by arguing that it fails to state a
claim upon which relief may be granted. See Fed. R.
Civ. P. 12(b)(6). On a Rule 12(b)(6) motion, the Court
accepts as true all well-pleaded factual allegations of the
complaint, drawing all possible inferences in the
pleader's favor. Reed v. Palmer, 906 F.3d 540,
547 (7th Cir. 2018). "[A] complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual
allegations," but it must contain "enough facts to
state a claim for relief that is plausible on its face."
Bell Ail. Corp. v. Twombly, 550 U.S. 544, 555, 570
(2007). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S.
at 556). In reviewing the sufficiency of a complaint, courts
must accept the well-pleaded facts in the complaint as true
but need not accept as true legal conclusions or threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements. Tobey v. Chibucos, 890
F.3d 634, 639 (7th Cir. 2018).
"may also take judicial notice of matters of public
record and consider documents incorporated by reference in
the pleadings." Or gone Capital III, LLC v.
Daubenspeck, 912 F.3d 1039, 1044 (7th Cir. 2019).
"A copy of a written instrument that is an exhibit to a
pleading is a part of the pleading for all purposes."
Fed.R.Civ.P. 10(c); Tobey, 890 F.3d at 648. When an
exhibit to the complaint "incontrovertibly contradicts
the allegations in the complaint, the exhibit ordinarily
controls, even when considering a motion to dismiss."
Bogie v. Rosenberg, 705 F.3d 603, 609 (7th Cir.
2013). "That is not to say that a plaintiff cannot
contradict the apparent meaning or significance of a document
or other exhibit." Id. "But a plaintiff
whose case relies on contradicting such an attachment needs
to explain her position." Id
motions to dismiss turn on whether Steel King sufficiently
alleges that Lakeside waived its right to limit its
contribution liability to the amount of its liability under
the Illinois Workers' Compensation Act
("IWCA"), 820 III. Comp. Stat. 305/1 et
seq. ('4339, R. 224, Mot. at 2; id, R. 369,
Resp. at 2.) Under Illinois law, an employer's
contribution liability is generally limited to the
employer's liability under the IWCA. Kotecki v.
Cyclops Welding Corp., 585 N.E•2d 1023, 1028 (111.
1991); see also McMackin v. Weberpal Roofing, Inc.,959 N.E.2d 186, 191 (111. App. Ct. 2011) ("[A]n
employer's maximum liability in a third-party suit for
contribution is limited to its liability to its employee
under the Workers' Compensation Act."). An employer,
however, can waive this limitation on contribution liability.
Br aye v. Archer-Daniels-Midland Co., 676 N.E.2d
1295, 1301 (111. 1997); see also Estate of Willis v.
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