Litterer v. United States

545 F.Supp.3d 625

Allie LITTERER, Plaintiff,

v.UNITED STATES; City of Chicago; American Airlines Inc. ; Envoy Air, Inc.; and United Maintenance Services, Inc., Defendants.

City of Chicago, Cross-Claimant,

v.United Maintenance Services, Inc., Cross-Respondent.

Case No. 19 C 5172

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

Signed June 26, 2021

John Paul Kolb, Trapp & Geller, Chicago, IL, for Plaintiff.

Jordan Matthew Tank, Riley Gallagher, Lipe Lyons Murphy Nahrstadt & Pontikis, Chicago, IL, for Cross-Respondent.

Brandt Randall Madsen, Olga S. Dmytriyeva, SmithAmundsen, LLC, Chicago, IL, for Defendant/Cross-Claimant City of Chicago.

Jimmy Lorenzo Arce, AUSA, United States Attorney's Office, Chicago, IL, for Defendants Transportation Security Administration, Department Security of Homeland Security.

Jordan Matthew Tank, Riley Gallagher, Lipe Lyons Murphy Nahrstadt & Pontikis, Chicago, IL, for Defendant United Maintenance Services, Inc.

Kathleen Marie Flannery, AUSA, United States Attorney's Office, Chicago, IL, for Defendant The United States.

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

After Allie Litterer slipped and fell at an airport security checkpoint, she filed suit against the United States, the City of Chicago, American Airlines, Inc., Envoy Air, Inc., and United Maintenance Services, Inc. She alleged, in part, that her injuries were the result of those defendants’ negligence. Of the ten counts and four defendants in Litterer's second amended complaint, only two counts involving one defendant remain: Counts 1 and 2, which allege negligence on the part of the United States.

Though Litterer withdrew her allegations against the City, it remains in the case as a cross-claimant. It has sued UMS, alleging that it breached its contract with the City by failing to defend the City from Litterer's suit and failing to procure insurance that named the City as an additional insured. Following Litterer's dismissal of her claims against the City and UMS, the Court decided to retain supplemental jurisdiction over the City's crossclaim under 28 U.S.C. § 1367(c), largely due to the advanced stage of the litigation at that point. Both the City and UMS have moved for summary judgment on the City's claims.

Background¹

UMS is a custodial services company. In 2012, the City and UMS entered into an agreement that made UMS responsible for providing comprehensive custodial/window cleaning and related hygiene and disposal services at Chicago O'Hare International Airport. These services were to be provided round-the-clock and on every day of the year. Among the areas for which UMS had responsibility were Transportation Safety Administration (TSA) checkpoints in O'Hare’s Terminal 3. The agreement between the City and UMS also required UMS to obtain commercial general liability insurance for "all premises and operations." Ex. J (Dkt. no 136-2 at ECF p. 81 of 358). The agreement further required that "the City ... be named as an additional insured on a primary, non-contributory basis for any liability arising directly or indirectly from the work." Id.

On the day of Litterer's accident, UMS was responsible for custodial services and its agreement with the City was in effect. Litterer was a ticketed passenger for an American Airlines flight that was to depart out of O'Hare. On her way to her gate, Litterer entered a TSA checkpoint in Terminal 3. Rather than walk through a full-body scanner, she opted for a pat-down; upon her request, a TSA officer directed her to another section of the checkpoint. After Litterer picked up her carry-on items and began walking in the direction the officer pointed at, she slipped and fell. She was assisted by several bystanders. All of this—as well as the moments before Litterer's arrival and the moments after her fall—was captured by an airport surveillance camera.

It is undisputed that a puddle of liquid caused Litterer's fall. UMS contends that one of the surveillance videos establishes that a child dropped a bottle of liquid and spilled its contents about four minutes before the fall. That said, it is uncontested that the video does not show liquid on the floor. After the accident, the City says TSA called UMS to clean up the spill; UMS contests this. The parties agree that a TSA employee helped clean the spill that caused Litterer's fall. But they dispute whether a UMS employee also helped clean the spill.

At the relevant time, UMS was responsible to keep, inspect, clean, and remove liquid from the floors near TSA checkpoints, round-the-clock. However, its ability to perform custodial and maintenance work inside checkpoints was impacted by the operational status of the checkpoints. Generally, UMS's daily cleaning activities did not include routine cleaning of checkpoint floors while checkpoints were in operation. Instead, when a checkpoint was operational, TSA was in control and handled custodial and maintenance duties on its own. If, however, there were a maintenance or custodial concern during a checkpoint's operating hours—a spill for example—TSA could call UMS, and UMS would respond.

Litterer filed her suit in Illinois state court in 2018. She named the City as a defendant but not UMS. In early 2019, the City issued a tender of defense to UMS and attached the complaint along with portions of UMS's agreement with the City. UMS forwarded the City's tender to its insurer. The parties contest UMS's response to the tender; the City says UMS has never responded, but UMS says that it denied it owed the City either a defense or indemnity. Litterer voluntarily dismissed her state court suit in October 2019 and filed this suit in December 2019. She included UMS among the defendants.

After Litterer filed this suit, the City cross-claimed against UMS. Count 1 of the City's crossclaim is based on UMS's alleged breach of the duty to defend and Count 2 is premised on its alleged breach of its contractual duty to provide insurance.

Discussion

When courts consider cross-motions for summary judgment, the "ordinary standards" remain in effect. Blow v. Bijora, Inc. , 855 F.3d 793, 797 (7th Cir. 2017). Summary judgment is appropriate where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law." Est. of Suskovich v. Anthem Health Plans Of Virginia, Inc. , 553 F.3d 559, 563 (7th Cir. 2009) (internal quotation marks omitted).

"It is axiomatic that the first step in the summary-judgment process is to ask whether the evidentiary record establishes a genuine issue of material fact for trial." James v. Hale , 959 F.3d 307, 310 (7th Cir. 2020). "A ‘material fact’ is one identified by the substantive law as affecting the outcome of the suit." Hanover Ins. Co. v. N. Bldg. Co. , 751 F.3d 788, 791 (7th Cir. 2014). A genuine dispute regarding a 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In weighing a motion for summary judgment, courts must view the facts "in the light most favorable to the nonmoving party" but "only if there is a ‘genuine’ dispute as to those facts." Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Generally, the party seeking summary judgment bears the initial responsibility of proving there is no genuine issue of material fact, Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and then the nonmoving party " ‘must set forth specific facts showing that there is a genuine issue for trial.’ " Anderson , 477 U.S. at 255, 106 S.Ct. 2505. To determine what is disputed, the Court must focus "not only on whether the parties profess to dispute a fact, but also on the evidence the parties offer to support their statements." Thompson v. Vill. of Monee , 110 F. Supp. 3d 826, 833 n.3 (N.D. Ill. 2015). "When we cite as undisputed a statement of fact that a party has attempted to dispute that reflects our determination that the evidence does not show that the fact is in genuine dispute." Id. (internal quotation marks omitted).

If there are no genuine issues of material fact, the court then determines whether the moving party is entitled to judgment as a matter of law. See Barnes , 943 F.3d at 830. When a court determines that no material fact is in dispute and that the moving party is entitled to judgment as a matter of law, it has in effect concluded that "no reasonable jury could find for the [non-moving] party based on the evidence in the record." Martinsville Corral, Inc. v. Soc'y Ins. , 910 F.3d 996, 998 (7th Cir. 2018) (internal quotation marks omitted).

Both the City's claims are premised on breach of contract. In Illinois, a plaintiff claiming breach of contract must establish: "(1) the existence of a valid and enforceable contract; (2) substantial performance by the plaintiff; (3) a breach by the defendant; and (4) resultant damages." See Sevugan v. Direct Energy Servs., LLC , 931 F.3d 610, 614 (7th Cir. 2019) (internal quotation marks omitted).

A. Duty to procure insurance

First up is the Court's consideration of UMS's duty to procure insurance. The City argues that UMS has breached the agreement between the parties because it failed to secure a policy that named the City as an additional insured. UMS asserts that it obtained the insurance required by the agreement.

When a party agrees to obtain insurance, its obligation is "discharged simply by procuring and paying for the insurance." Medline Indus., Inc. v. Ram Med., Inc. , 892 F. Supp. 2d 957, 967 (N.D. Ill. 2012). "Thus, under an agreement to obtain insurance, the promisor bears no responsibility in the event of an injury or damages once the insurance is obtained." Sears, Roebuck & Co. v. Charwil Assocs. Ltd. P'ship , 371 Ill. App. 3d 1071, 1078, 309 Ill.Dec. 628, 864...