Clark v. Foresight Energy

228 N.E.3d 988

2023 IL App (5th) 230346

Dennis L. CLARK, Plaintiff-Appellee,

v.FORESIGHT ENERGY, LLC; Foresight Energy Services, LLC; Sugar Camp Energy, LLC; Foresight Energy, L.P.; Foresight Energy Operating, LLC; Foresight Energy Resources, LLC; M-Class Mining, LLC; Viking Mining, LLC; Foresight Energy Labor, LLC; Coal Field Construction Company, LLC; and Adena Resources, LLC, Defendants-Appellants.

No. 5-23-0346

Appellate Court of Illinois, Fifth District.

Filed September 1, 2023

Appeal from the Circuit Court of Franklin County. No. 23-LA-1, Honorable Eric J. Dirnbeck, Judge, presiding.

G. Patrick Murphy and Patricia S. Murphy, of Murphy & Murphy LLC, of Marion, and Jeffrey R. Baron and Joshua I. Hammack, of Bailey & Glasser LLP, of Webster Groves, Missouri, for appellants.

Thomas J. Lech, Jennifer M. Wagner, Kevin P. Green, and Daniel S. Levy, of Goldenberg Heller & Antognoli, P.C., of Edwardsville, and Douglas N. Dorris, of Howerton, Dorris, Stone & Lambert, of Marion, for appellee.

OPINION

JUSTICE MOORE delivered the judgment of the court, with opinion.

¶ 1 The defendants—Foresight Energy, LLC; Foresight Energy Services, LLC; Sugar Camp Energy, LLC; Foresight Energy, L.P.; Foresight Energy Operating, LLC; Foresight Energy Resources, LLC; M-Class Mining, LLC; Viking Mining, LLC; Foresight Energy Labor, LLC; Coal Field Construction Company, LLC; and Adena Resources, LLC—appeal the April 18, 2023, order of the circuit court of Franklin County that denied their motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2022)) or, in the alternative, to compel arbitration and stay the proceedings. For the reasons that follow, we reverse.

¶ 2 I. BACKGROUND

¶ 3 On January 6, 2023, the plaintiff, Dennis Clark, filed a complaint against the defendants. Count I alleged negligence against all defendants, count II alleged nuisance against all defendants, count III alleged trespass against all defendants, and count IV alleged strict liability due to ultrahazardous activity as to all defendants.

¶ 4 The complaint alleged that all defendants owned, operated, oversaw, financed, managed, and/or provided services to the Sugar Camp Energy Mining Complex (Complex). The Complex consists of two longwall mines—the MC #1 Mine located in Thompsonville, Illinois, and the Viking Mine located in Macedonia, Illinois—and the M-Class Preparation Plant located in Macedonia, Illinois. On or about August 14, 2021, a fire started underground at the MC #1 Mine. The defendants used firefighting foam containing per- and polyfluoroalkyl substances (PFAS) to extinguish the underground fire.

¶ 5 The complaint alleged that the plaintiff owns real property in Macedonia, Illinois, that has an active farming operation including livestock. The plaintiff’s farm is located approximately one-quarter of a mile from where the PFAS were used. The plaintiff alleged that, in September 2021, he noticed an upwelling of water on his farm where no such spring had previously existed. He further alleged that the upwelled water contained a metallic sheen or film that did not freeze during cold weather and was located in a livestock pasture area. In November 2021, several animals pastured in the area with the upwelled water died, including one herd bull, four cows, one calf, and four sheep. Additionally, a dog that began to feed off one of the dead sheep subsequently became ill.

¶ 6 The complaint alleged that the plaintiff has suffered the following damages as a result of the negligence of defendants in using PFAS:

"a) Loss of portions of his livestock from their deaths after drinking this contaminated water or consuming vegetation affected by this contaminated water;

b) Loss of portions of his livestock from chronic illness as a result of drinking this contaminated water or consuming vegetation affected by this contaminated water;

c) Having to condemn portions of his livestock herd which are now unsuitable for use for human consumption as a result of ingestion of these contaminants;

d) Future losses of livestock to death, chronic illness, and/or condemnation as a result of drinking this contaminated water or consuming vegetation affected by this contaminated water;

e) Present and future loss to the value of his real property as a result of his lands and waters being exposed to these contaminants;

f) Present and future loss of the use and enjoyment of the affected real property and its waters;

g) Costs incurred to investigate and to determine the conditions of his livestock, and to determine the type and source of contamination and the cause of those animals’ conditions or death, including but not limited to veterinary bills, both past and future;

h) Costs incurred to investigate and to determine the conditions of his land and water, and to determine the type and source of contamination and the cause of this contamination to his land, both past and future."

The plaintiff also alleged that the contamination constituted a substantial invasion upon his interest in the use and enjoyment of his land, that the contamination constituted a physical invasion of his property, and that the use of the PFAS firefighting foam was an ultrahazardous activity.

¶ 7 On February 7, 2023, the defendants moved to dismiss the complaint or, in the alternative, to compel arbitration and stay the proceedings pursuant to the "Waiver and Release" because the defendants alleged that the plaintiff had previously agreed to arbitrate disputes, such as those alleged in the complaint. The motion was supported by a verification of Lee Landon, a copy of the executed "Waiver and Release," and a copy of the recorded "Memorandum of Waiver and Release."

¶ 8 The defendants alleged that on July 30, 2019, the plaintiff and his wife executed a waiver and release in favor of Sugar Camp Energy, LLC, and any other related entities, and their respective agents, employees, and contractors. The "Waiver and Release" contains the following relevant provisions:

"WHEREAS, Released Parties have conducted or will conduct mining opera- tions underlying Premises owned by Releasor, to-wit:

* * *

WHEREAS, Releasor have elected to receive cash in lieu of repair or replacement to structures and facilities for material damages caused by Releasee’s mining operations.

NOW, THEREFORE, for and in consideration of the payment of the sum of Two Hundred Ninety Thousand Dollars and Zero Cents ($290,000.00) by Releasee to Releasor, Releasor do hereby agree as follows:

Releasor hereby releases, waives and forever discharges the Released Parties from any and all claims of any sort or nature whatsoever, known or unknown, past, present or future, in any way related to or caused by Releasee’s past, present or future mining activities in or associated with the Herrin No. 6 coal seam. The claims released include, but are not limited to, claims for subsidence damage, nuisance, trespass, property damage, personal injury, and include damage to personal property, improvements, facilities, wells, ponds, or other structures and improvements located on the foregoing Premises. This Release is given by reason of the election of Releasor to receive cash compensation in lieu of repair or replacement of material damage caused by Releasee’s mining operations on the Premises.

* * *

Any dispute regarding the matters set forth herein or disputes of any sort or nature whatsoever arising out of this Waiver and Release shall be determined by arbitration. Each party shall select a competent and disinterested arbitrator having expertise in the area of the dispute and the two arbitrators so selected shall select a third arbitrator. Each party shall bear the expense of the arbitrator he selects and the parties shall bear equally the cost of the third arbitrator. The arbitrators shall inspect and evaluate the damage and shall render their opinion thereon. The decision of at least two of the arbitrators shall be decisive. The decision so rendered shall be binding on the parties and payment, if any, shall be promptly made by Releasee or Releasor as the case may be. The party receiving payment, his heirs and assigns, shall execute a release for said damage, if requested. The manner of ascertainment of disputes provided for herein shall be exclusive and the parties hereby waive any and all other remedies. If the parties fail to appoint arbitrators as provided for herein or if the arbitrators appointed by the parties are unable to agree upon a third arbitrator, then an arbitrator shall be appointed by the American Arbitration Association.

* * *

The Release shall be construed in accordance with the laws of the State of Illinois."

The defendants argued a valid arbitration clause existed within the Waiver and Release agreed to by the plaintiff and the defendants and the issues in dispute are within the scope of the arbitration agreement, so the circuit court should order the parties to arbitration.

¶ 9 On March 16, 2023, the plaintiff filed his response in opposition to the motion to dismiss or compel arbitration and stay. The plaintiff argued that the United States Arbitration Act, commonly known as the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq. (2018)), should apply to an arbitration clause "contained in a contract involving interstate commerce." The plaintiff argued that, under the FAA, the circuit court should determine whether the claims set forth in his compliant were arbitrable. Additionally, the plaintiff argued that the Waiver and Release executed in 2019 did not include his unknown future claims that arose in 2021 and thus are not captured by the arbitration clause. Alternatively, the plaintiff argued that the claims set forth in his complaint are not subject to the arbitration clause because the claims did not arise out of or relate to the defendants’ "mining activities."

¶ 10 On March 22, 2023, the defendants filed their reply in support of their motion. The defendants argued that future claims are subject to arbitration...