Carroll v. Thyssenkrupp Elevator Corp.

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MAGGIE CARROLL, Plaintiff, v. THYSSENKRUPP ELEVATOR CORPORATION, Defendant.

ZENITH INSURANCE COMPANY, Plaintiff, v. THYSSENKRUPP ELEVATOR CORPORATION, Defendant.

THYSSENKRUPP ELEVATOR CORPORATION, Third-Party Plaintiff v. TRIAD SENIOR LIVING, INC. d/b/a WATERFORD ESTATES AND AFFORDABLE COMMUNITY HOUSING TRUST-EPSILON, Third-Party Defendants

No. 20 C 6699; 20 C 7220

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

October 7, 2024

EXHIBIT A

MEMORANDUM OPINION & ORDER

Beth W. Jantz Magistrate Judge For the reasons set out below, the Court grants third-party Defendant Triad Senior Living, Inc's (“Triad”) motion to dismiss as to Counts II and IV of Thyssenkrupp Elevator Corporation's (“TKE”) third-party complaint against it, and denies the motion as to Count I. Triad's motion to amend its answer to Count III to include the affirmative defense of contributory negligence is denied. TKE's motion for summary judgment on Count III is granted.

A joint status report is due by 9/8/2023, following the parties' mediation, to report either that the cases have settled or if not, the parties' proposed next steps and timeline for proceeding with these cases.

RELEVANT BACKGROUND

This consolidated matter involves two diversity actions, one by Plaintiff Maggie Carroll (20 C 7220), and another by Plaintiff Zenith Insurance Company (20 C 6699), brought against Defendant Thyssenkrupp Elevator Corporation (“TKE”), asserting Illinois state-law claims of defective design, failure to warn, and negligence, arising out of an elevator accident on November 12, 2018. The Plaintiffs allege that Maggie Carroll (“Carroll”) was injured at her workplace, Waterford Estates, when an elevator on which she was riding unexpectedly fell several floors. [Zenith Dkt. 1 at 4; Carroll Dkt. 8 at 2.^[1] Zenith is the workers' compensation insurance carrier for Carroll's employer, Triad Senior Living (“Triad”), and alleges it has paid to Carroll workers' compensation benefits arising from this incident. [Zenith Dkt. 1 at 4.] Plaintiff Zenith is seeking to recover from TKE all amounts provided for pursuant to the Illinois Workers' Compensation Act, 820 ILCS 305/5(b) and Plaintiff Carroll also seeks damages from TKE for the incident. [Zenith Dkt. 1 at 4, 11; Carroll Dkt. 1 at 2-4.]

Prior to the November 2018 incident, Carroll's employer, Triad, had entered into a Maintenance Agreement (“Agreement”) with TKE. Under the Agreement, TKE was to regularly examine the elevator equipment at Triad's Waterford Estates facility for optimum operation, lubricate the equipment for smooth and efficient performance, and adjust elevator parts and components to maximize performance and safe operation. [Zenith Dkt. 86-3 at 3.] Triad also shared responsibility over the proper functioning of the elevator; under the “safety” heading of the Agreement, Triad agreed to, among other things, “provide a suitable machine room, including secured doors, waterproofing, lighting, ventilation, and appropriate air temperature control to maintain that room at a temperature between 50 degrees F and 90 degrees F.” [Zenith Dkt. 86-3 at 5.]

TKE has filed a third-party complaint against Triad, alleging that it is Triad-not TKE-who is responsible for the elevator's fall because Triad failed to keep the elevator machine room at an adequate temperature, as required under the Agreement. [Zenith Dkt. 86.] TKE's amended complaint against Triad [Zenith Dkt. 86] contains four counts: Count I, seeking contribution under the Joint Tortfeasor Contribution Act, 740 ILCS 100/1; Count II, seeking indemnification under the parties' Maintenance Agreement; Count III, alleging breach of duty to insure, based on language in the Maintenance Agreement requiring Triad to name TKE on its insurance policy; and Count IV, alleging spoliation of relevant evidence because Triad allegedly failed to preserve video footage of Plaintiff Carroll exiting the elevator after the incident.

Several portions of the parties' Maintenance Agreement are relevant here. Under the heading “Other,” the Agreement provides:

In consideration of ThyssenKrupp Elevator performing the services herein specified, you [Triad] expressly agree to the fullest extent permitted by law, to indemnify, defend, save harmless, discharge, release, and forever acquit ThyssenKrupp Elevator Corporation, our employees, officer, agents, affiliates, and subsidiaries from and against any and all claims, demands, suits, and proceedings brought against ThyssenKrupp Elevator, our employees, officer, agents, affiliates, and subsidiaries for loss, property damage (including damage to equipment which is the subject matter of this Agreement), personal injury or death that are alleged to have been caused by the Purchaser [Triad] or any others in connection with the presence, use, misuse, maintenance, installation, removal, manufacture, design, operation or condition of the equipment covered by this Agreement, or the associated area surrounding such equipment. Your duty to indemnify does not apply to the extent that the loss, property damage (including damage to the equipment, which is the subject matter of this Agreement), personal injury, or death is determined to be caused by or resulting from the negligence of ThyssenKrupp Elevator and/or our employees. You recognize that your obligation to ThyssenKrupp Elevator under this clause includes payment of all attorney's fees, court costs, judgment, settlement, interest, and any other expenses of litigation arising out of such claims or lawsuits.

[Zenith Dkt. 86-3 at 5-6.]

Also relevant, the “Other Conditions” portion of the Agreement provides:

In addition, we [TKE] will not be required to make any changes or recommendations in the existing design or function of the unit(s), nor will we be obligated to install new attachments or parts upon the equipment as recommended or directed by insurance companies, governmental agencies or authorities, or any other third party. Moreover, we shall not be obligated to service, renew, replace and/or repair the equipment due to any one or more of the following: anyone's abuse, misuse, and/or vandalism of the equipment; anyone's negligence in connection with the use or operation of the equipment;...or any other reason or cause beyond our control that effects the use or operation of the equipment. You expressly agree to release and discharge us and our employees for any and all claims and /or losses (including personal injury, death, and property damage, specifically including damage to the Property which is the subject matter of this Agreement) associated therewith or caused thereby.you expressly agree to release and discharge ThyssenKrupp Elevator from any and all claims for consequential, special or indirect damages arising out of the performance of this Agreement. In no event shall ThyssenKrupp Elevator's liability for damages arising out of this Agreement exceed the remaining unpaid installment of the current, unexpired term of this Agreement.

[Zenith Dkt. 86-3 at 6.]

Finally, under the “Insurance” heading, Triad expressly agreed to:

name ThyssenKrupp Elevator Corporation along with its officers, agents, affiliates, and subsidiaries as additional insureds in [Triad's] liability and any excess (umbrella) liability insurance policy(ies). Such insurance must insure ThyssenKrupp Elevator Corporation along with its officers, agents, affiliates, and subsidiaries.

[Zenith Dkt. 86-3 at 6.] The insurance was also to “specify that its coverage is primary and non-contributory,” and Triad was to “waive the right of subrogation.” [Id.] Triad has moved to dismiss Counts I, II, and IV of TKE's third-party complaint. [Zenith Dkt. 88], which TKE opposes, [Zenith Dkt. 96], and Triad has filed a reply [Zenith Dkt. 99]. TKE has also filed a motion for summary judgment on Count III [Zenith Dkt. 113], which Triad opposes, [Zenith Dkt. 117]. Triad also has filed a motion to amend its answer to Count III to include an affirmative defense of contributory negligence [Zenith Dkt. 116], which TKE opposes and has moved to strike [Zenith Dkt. 123]. After Triad filed their response opposing summary judgment and their motion to amend their answer, TKE filed a reply in support of summary judgment on Count III [122], and Triad has filed a sur-reply [Zenith Dkt. 124.]

For the reasons that follow, Triad's motion to dismiss is granted in part (as to Counts II and IV) and denied in part (as to Count I). Triad's motion to amend its answer to Count III to include the affirmative defense of contributory negligence is denied. TKE's motion for summary judgment on Count III is granted.

DISCUSSION

I. Triad's Motion to Dismiss Counts I, II, and IV

a. Legal Principles

This a diversity action involving a workers' compensation claim made in the state of Illinois, an alleged personal injury that occurred in the state of Illinois, and a maintenance contract that was executed and performed within the state of Illinois. This Court therefore applies substantive Illinois law to the claims in this case while applying the federal rules to procedural matters. See Allstate Ins. Co. v. Menards, Inc., 285 F.3d 630, 637 (7th Cir. 2002) (explaining that "the task of the federal court sitting in diversity is to ascertain the substantive content of state law as it either has been determined by the highest court of the state or as it would be by that court if the present case were before it now”); see also Fid. Nat. Title Ins. Co. of New York v. Intercounty Nat. Title Ins. Co., 412 F.3d 745, 750 (7th Cir. 2005) (“The Federal Rules of Civil Procedure, not state procedural rules, govern in diversity, as they do in federal-question, cases in federal district courts.”).

To survive a motion to dismiss under Federal Rule 12(b)(6), the...