2021 IL App (1st) 192427-U 

No. 1-19-2427 

Order filed March 2, 2021. 

Second Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the 

limited circumstances allowed under Rule 23(e)(1).

IN THE 

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

HARLEYSVILLE INSURANCE CO., as ) Appeal from the

Subrogee of Navigant Development, LLC, ) Circuit Court of

 ) Cook County.

 Plaintiff-Appellant, ) 

 ) 

v. ) No. 2018 L 008623 

 ) 

MOHR ARCHITECTURE, INC., FOX VALLEY ) 

ENGINEERING, INC., now known as FOX ) 

VALLEY OCD, INC., BRAMCO ) 

CONSTRUCTION COMPANY, CAMPBELL ) 

TRUSS, INC., ARCH-H, LLC, and ADVANCE ) 

CONSULTING GROUP INTERNATIONAL, ) The Honorable

 ) Margaret A. Brennan, 

Defendants-Appellees. ) Judge Presiding.

JUSTICE LAVIN delivered the judgment of the court.

Justices Pucinski and Cobbs concurred in the judgment.

ORDER

¶ 1 Held: The property owner was not an intended third-party beneficiary of renovation 

contracts between its tenants, the tenants’ contractors and their subcontractors, precluding any 

breach of contract claim. The property owner’s negligence claims were also barred by the 

economic loss doctrine.
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¶ 2 Navigant Development, LLC (Navigant), owned a restaurant property at 1419 N. Wells 

Street in Chicago (the property). After two separate tenants completed two separate renovations 

at the property, defects surfaced with respect to the trusses supporting the property’s ceiling. 

Harleysville Insurance Co. (Harleysville), Navigant’s insurer, paid Navigant for repairs and lost 

rent. Harleysville, as Navigant’s subgrogee, then brought this action against various contractors 

and subcontractors involved in the two renovation projects, alleging multiple counts of breach of 

contract and negligence.

¶ 3 Ultimately, the circuit court granted several defendants’ motions to dismiss and one 

defendant’s motion for summary judgment, finding that Navigant was not an intended third-party 

beneficiary to contracts between its tenants, contractors and subcontractors. Consequently, 

Harleysville could not bring breach of contract claims based on those contracts. Additionally, the 

economic loss doctrine barred Harleysville’s negligence claims. In this interlocutory appeal, 

Harleysville maintains that Navigant was an intended third-party beneficiary of the contracts at 

issue and that the economic loss doctrine does not apply. For the following reasons, we affirm 

the court’s judgment.

¶ 4 I. Background

¶ 5 A. Renovation from 2008-2009 

¶ 6 From about 2008 to 2009, Old Town Entertainment, LLC (Old Town), Navigant’s tenant, 

renovated the property to operate a restaurant and bar called 33 Club.

1 Old Town hired Mohr 

Architecture, Inc. (Mohr), to design and prepare the renovation plans. In turn, Mohr hired Fox 

Valley Engineering, Inc., now known as Fox Valley OCD, Inc. (Fox), to perform the engineering 

work. Old Town also hired Campbell Truss, Inc. (CTI), to maintain and repair trusses during the 

1

These facts are taken from Harleysville’s amended complaint or are otherwise undisputed at this 

juncture. 
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renovation. According to Harleysville, these entities knew that Navigant owned the property, and

Old Town was required to submit all proposed work to Navigant and/or Anthony Tomaska for

approval before work commenced. Tomaska was Navigant’s sole member and manager as well 

as a member of Old Town. 

¶ 7 B. Renovation from 2011-2012 

¶ 8 In October 2011, Navigant leased the property to Bottleneck Wells, LLC (Bottleneck), 

which planned to renovate the property to operate a restaurant called the Old Town Pour House

(Pour House). Bottleneck hired Bramco Construction Company (Bramco) to be the general 

contractor and Arch-H, LLC (Arch-H), to provide architectural design services. In turn, Arch-H 

hired Advance Consulting Group International (Advance) to provide engineering and design 

specifications. Additionally, Bottleneck’s lease required it to submit all proposed alterations to 

Navigant for approval.

¶ 9 C. 2016 Damage Discovery

¶ 10 In 2016, Navigant or Bottleneck discovered that the property’s ceiling was sagging and 

damaged in places. Further investigation revealed that several trusses supporting the roof and 

ceiling were bowed, cracked or damaged. Harleysville then paid Navigant approximately 

$870,000 for damages to the trusses and lost rent. Harleysville claims that improper work during 

either or both of the renovations damaged the trusses. 

¶ 11 D. Litigation

¶ 12 Harleysville, as Navigant’s subrogee, filed this action in August 2018, naming as 

defendants the entities involved in the two renovations. Old Town and Bottleneck, however, are 

not parties to this litigation. In January 2019, Harleysville filed an amended complaint, alleging

that Navigant was an intended third-party beneficiary of the renovation contracts and that 
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defendants breached those contracts. According to Harleysville, Navigant was an intended thirdparty beneficiary because defendants knew the work was to be performed at a property owned by 

Navigant. Harleysville further argued that defendants’ negligence with respect to the truss-work 

damaged the trusses.

¶ 13 Harleysville attached to its amended complaint the tenants’ respective agreements with 

Mohr, Bramco, CTI and Arch-H, which we will later address in further detail. Harleysville did 

not attach, however, any contract involving Advance or Fox. Additionally, Harleysville did not 

attach Navigant’s lease agreements with Old Town and Bottleneck.

¶ 14 Advance filed an answer and affirmative defenses, denying that (1) it knew Navigant 

owned the property, (2) it knew Navigant would benefit from Advance’s work, (3) Navigant was 

an intended third-party beneficiary, and (4) it had a duty to prevent harm to Navigant. Advance 

also argued that Navigant claimed only economic loss and, thus, the economic loss doctrine 

barred Harleysville’s negligence claim. Advance later filed a motion for summary judgment, 

attaching an affidavit from its owner. According to the affidavit, Advance and Arch-H engaged 

in a series of e-mails which led Advance to work at the property. Advance never entered into an 

agreement with Navigant or Bottleneck, however. The e-mails attached to the affidavit did not 

mention those entities. 

¶ 15 CTI filed a combined motion to dismiss the counts against it. 735 ILCS 5/2-619.1 (West 

2018). Similar to Advance, CTI argued that Navigant was not an intended third-party beneficiary 

to CTI’s contract with Old Town and the economic loss doctrine precluded Harleysville’s 

negligence claim. Mohr and Bramco then filed their own combined motions to dismiss, raising 

similar defects. Additionally, Arch-H moved to dismiss the breach of contract count against it

under section 2-615 (735 ILCS 5/2-615 (West 2018)), arguing that Navigant was not an intended
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third-party beneficiary to its contract, and Fox moved to dismiss the negligence claim against it 

under section 2-615, arguing the claim was barred by the economic loss doctrine.

¶ 16 In response to defendants’ motions, Harleysville argued that Navigant was an intended

third-party beneficiary of defendants’ contracts because they knew that Navigant, rather than Old 

Town or Bottleneck, owned the property where work was to be completed, and “that Navigant 

would be, in part, a party benefitting from and enjoying the fruits of their work.” Additionally, 

Navigant’s leases with its tenants included plans for renovation and required the tenants to 

submit proposed alterations to Navigant for approval. 

¶ 17 Harleysville further argued that the economic loss doctrine did not preclude 

Harleysville’s negligence claims because “this is not a case of an unsatisfied customer nor the 

case of merely a defective product, but rather the case of property damage, and other property 

damage that extends well beyond just the work previously performed by the Defendants.” We 

note that the amended complaint did not allege property damage beyond the trusses, which were 

subjects of both renovation projects. Additionally, Harleysville argued that Navigant’s damages 

reflected physical injury resulting from a sudden and calamitous event, satisfying an exception to 

the economic loss doctrine. See Fireman’s Fund Insurance Co. v. SEC Donohue, Inc.176 Ill. 2d 

160, 165 (1997). Harleysville’s attachments to the response included Bottleneck’s lease with 

Navigant. 

¶ 18 On June 28, 2019, the circuit court granted defendants’ motions with prejudice. The court 

found that the sudden and calamitous event exception to the economic loss doctrine did not 

apply, as the amended complaint alleged only that the trusses bowed and cracked over a period 

of eight years. In re Chicago Flood Litigation, 176 Ill. 2d 179, 200-01 (1997) (stating that 

gradual deterioration is insufficient to satisfy this exception); Westfield Insurance Co. v. Birkey’s 
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Farm Store, Inc., 399 Ill. App. 3d 219, 232 (2010) (recognizing that this exception requires 

damage to property other than the property that is the subject of the contract). Additionally,

Navigant was not an intended third-party beneficiary to the renovation contracts. Even if 

defendants knew Navigant owned the property, it did not follow that they intended to benefit 

Navigant. Furthermore, Mohr’s contract and CTI’s contract with Old Town did not mention 

Navigant. Similarly, Bramco’s contract and Advance’s contract contained no affirmative 

statement showing an intent to benefit Navigant. Moreover, the contract between Arch-H and 

Bottleneck explicitly stated that the contract would not create a contractual relationship or cause 

of action in favor of a third party.

¶ 19 Arch-H subsequently filed a section 2-615 motion to dismiss the negligence claim against 

it, citing the court’s order granting codefendants’ motions. Additionally, Fox moved to dismiss 

the breach of contract claim against it under section 2-619. Fox argued that it had entered into a 

contract with only Mohr, through informal e-mails and an invoice, which were attached to Fox’s 

motion. Furthermore, Navigant was not an intended third-party beneficiary of that contract. 

¶ 20 Harleysville, however, filed a motion to reconsider the court’s dismissal/summary 

judgment order. According to Harleysville, while ownership of a property after the contract’s 

formation and execution may be insufficient to render one an intended third-party beneficiary, 

ownership of a property at the time of the contract’s formation and execution was sufficient.

Harleysville also argued that it was an intended third-party beneficiary of Bramco’s contract with 

Bottleneck because Bramco’s subcontracts named Navigant as an additional insured. 

Harleysville attached several agreements between Bramco and its subcontractors.

¶ 21 Harleysville also responded to Arch-H’s motion to dismiss the negligence claim against 

it, arguing that the economic loss doctrine did not bar its negligence claim because Arch-H was 
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in the business of supplying information for the guidance of others. We note that Harleysville has 

since abandoned any reliance on that exception. Harleysville further argued, however, that the 

doctrine did not apply because defendants owed extracontractual duties to Navigant, the property 

owner, and Navigant did not have the opportunity to bargain for Arch-H’s services.

¶ 22 Defendants responded to the motion for reconsideration, arguing, among other things, 

that Harleysville’s motion improperly raised new arguments and that Navigant’s ownership of 

the property at the time the contract was formed and executed did not render it an intended thirdparty beneficiary. 

¶ 23 In reply, Harleysville denied that its motion to reconsider had not raised a new argument. 

Yet, in the same breath, Harleysville’s reply argued for the first time that if the court sustained 

the dismissal of the breach of contract claims, it was required to reinstate the negligence claims. 

Specifically, Harleysville reasoned that if there were no commercial dealings between Navigant 

and defendants, the economic loss doctrine did not apply. The circuit court subsequently allowed

defendants to file sur-replies challenging the reasoning behind Harleysville’s new contention.

¶ 24 On October 29, 2019, the circuit court denied Harleysville’s motion to reconsider and 

granted the pending motions to dismiss. The circuit court, on November 19, 2019, found that the 

dismissal order, summary judgment order and denial of reconsideration order were final and 

appealable, “there being no just reason for delay of the appeal on the issues contained within 

those orders.” Harleysville now appeals. 

¶ 25 II. Analysis

¶ 26 On appeal, Harleysville challenges the circuit court’s dismissal orders. Section 2-619.1 of 

the Code of Civil procedure permits a party to move for dismissal under both section 2-615 and

section 2-619. Lutkauskas v. Ricker, 2015 IL 117090, ¶ 29. In addition, a section 2-615 motion 
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challenges a complaint’s legal sufficiency (Cochran v. Securitas Security Services U.S.A., Inc., 

2017 IL 121200, ¶ 11), while a section 2-619 motion admits the complaint’s legal sufficiency but 

raises a defense defeating the complaint (State ex rel. Leibowitz v. Family Vision Care, LLC, 

2020 IL 124754, ¶ 31). That being said, a confluence between section 2-615 and section 2-619 

exists when an affirmative matter is apparent from the complaint. O’Callaghan v. Satherlie, 2015 

IL App (1st) 142152, ¶ 19.

¶ 27 In reviewing a combined motion to dismiss, we accept all well-pleaded facts in the 

complaint as true. Zander v. Carlson, 2020 IL 125691, ¶ 3. Furthermore, we review an order 

granting a motion to dismiss de novo. Id. ¶ 18. Consequently, we may affirm the court’s 

judgment on any basis in the record. Kucinsky v. Pfister, 2020 IL (3d) 170719, ¶ 34.

¶ 28 Harleysville also asserts that the circuit court erroneously entered summary judgment in 

favor of Advance. Summary judgment is warranted where the pleadings, admissions on file, 

depositions and affidavits demonstrate that no genuine issue of material fact exists so that the 

movant is entitled to judgment as a matter of law. Lewis v. Lead Industries Ass’n, 2020 IL 

124107, ¶ 14. In making this determination, courts construe the pleadings, admissions, 

depositions and affidavits strictly against the movant and liberally in favor of the nonmovant.

Gillespie v. Edmier, 2020 IL 125262, ¶ 9. Like the circuit court’s dismissal orders, we review 

summary judgment rulings de novo. Id. 

¶ 29 Finally, Harleysville challenges the denial of its motion to reconsider. Our standard of 

review with respect to such motion depends on whether the motion raised the circuit court’s 

misapplication of law, which we review de novo, or raised new facts, arguments or legal 

theories, which we review for an abuse of discretion. Liceaga v. Baez, 2019 IL App (1st)

181170, ¶¶ 26. Harleysville’s motion to reconsider argued the misapplication of law but also 
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added a new argument. Because the circuit court ruled upon the merits of all of Harleysville’s 

contentions, however, we review the denial of that motion de novo, although the result here 

would be the same under any standard of review. 

¶ 29 A. Breach of Contract

¶ 30 We begin by addressing the circuit court’s dismissal of Harleysville’s breach of contract 

claims.2 Absent privity of contract, an owner of real property cannot sue a defendant for breach 

of contract unless he can show that the contracting parties undertook duties and obligations for 

the owner’s direct benefit. Waterford Condominium Ass’n v. Dunbar Corp. , 104 Ill. App. 3d 

371, 373 (1982). Stated differently, the contracting parties must have intended for the 

performance of the contract to directly benefit the third party. Doyle v. Village of Tinley Park, 

2018 IL App (1st) 170357, ¶ 33. “[I]f the promisee bargains with the promisor to render a 

performance directly to a third party, in nearly every case, the promisee will have intended to 

benefit that third party.”3 Advanced Concepts Chicago, Inc. v. CDW Corp., 405 Ill. App. 3d 289, 

293 (2010). Furthermore, it is unnecessary for the contract to specifically name the third-party 

beneficiary, but the contract must at least define a class of individual beneficiaries that would 

include the plaintiff. In re Estate of Wills v. Kiferbaum Construction Corp., 357 Ill. App. 3d 

1002, 1008 (2005). 

¶ 31 In contrast, incidental beneficiaries have no contractual rights or standing to enforce a 

contract’s terms. Id. With respect to construction contracts, it is insufficient for the contracting 

2

Reviewing courts have addressed whether a party constitutes a third-party beneficiary in the 

context of a section 2-619 motion to dismiss, a section 2-615 motion to dismiss and a motion for 

summary judgment. See, e.g., Carlson v. Rehabilitation Institute of Chicago, 2016 IL App (1st) 143853, ¶ 

15; Bernstein v. Lind-Waldock & Co., 153 Ill. App. 3d 108, 110 (1987); Federal Insurance Co. v. Turner 

Construction Co., 277 Ill. App. 3d 262, 266, 268 (1995).

3

Contrary to Harleysville’s assertion, this rule does not set forth a separate test for instances 

where the third-party beneficiary owned the property subject to the contract. Rather, it is an aid to

deciphering the contracting parties’ intent.
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parties to merely know, expect or intend that others will benefit from the construction. 155 

Harbor Drive Condominium Ass’n v. Harbor Point Inc., 209 Ill. App. 3d 631, 646 (1991). It is 

also insufficient for the contracting parties to know, expect or intend that a third party will use 

the building constructed. In re Estate of Wills, 357 Ill. App. 3d at 1008; Altevogt v. Brinkoetter, 

85 Ill. 2d 44, 52, 56 (1981) (finding that even if the defendant builder of the house knew that the 

party with whom he contracted would not be the party to live there, knowledge that unknown 

third parties would reside in the house was insufficient to make those third parties direct 

beneficiaries). Simply put, building owners cannot enforce contractual terms absent “specific 

references to or obligations toward those owners.” 4 In re Estate of Wills, 357 Ill. App. 3d at

1009; see also Restatement (Second) Contracts § 302, illustration 19. 

¶ 32 Moreover, a presumption exists that contracting parties did not intend to confer 

beneficiary status on a third party, as parties typically enter into contracts for their own benefit. 

Doyle, 2018 IL App (1st) 170357, ¶ 33. The plaintiff has the burden of overcoming that 

presumption. 155 Harbor Drive Condominium Ass’n, 209 Ill. App. 3d at 647. Additionally, 

courts consider the contract’s language “and the circumstances surrounding its execution” to 

determine whether the contracting parties intended to benefit a third party. Doyle, 2018 IL App 

(1st) 170357, ¶ 33. Yet, the contract itself must make clear that it is undertaken for the plaintiff’s 

direct benefit. Waterford Condominium Ass’n, 104 Ill. App. 3d at 373. Liability to a third party 

cannot be expanded merely because the circumstances justify or demand further liability. 155 

Harbor Drive Condominium Ass’n, 209 Ill. App. 3d at 646. 

4

Given that Illinois law is well settled, we decline to address decisions from other jurisdictions. 

Nicholson v. Shapiro & Associates, LLC, 2017 IL App (1st) 162551, ¶ 11 (stating that Illinois courts are 

not bound by decisions from other jurisdictions).
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¶ 33 While Harleysville contends that we are not limited to considering the contract’s 

language and may look to external circumstances surrounding the contract’s execution to assess 

the contracting parties’ intent, we adhere to the well-settled rule that we may only look outside of 

a contract when the contract is ambiguous, an argument that Harleysville has not made with 

respect to the contracts at issue here. Mount Hawley Insurance Co. v. Robinette Demolition, Inc., 

2013 IL App (1st) 112847, ¶ 45; see also Stichter v. Zuidema, 269 Ill. App. 3d 455, 456, 459, 

461-62 (1995) (finding the circuit court improperly considered extrinsic evidence in determining 

whether an unambiguous contract made the plaintiffs third-party beneficiaries). We find that 

where a contract is unambiguous, we must consider the circumstances surrounding execution as 

discerned from the contract itself. In any event, Harleysville has not identified any circumstances 

external to these contracts that would have rendered Navigant an intended third-party beneficiary

thereof. 

¶ 34 i. Mohr’s Contract

¶ 35 Harleysville attached to its amended complaint a “project contract,” which took the form 

of a letter setting forth the work Mohr proposed to perform. While Harleysville states on appeal 

that Old Town hired Mohr, the document was addressed to Tomaska, Jerry Kleiner and Sam 

Madonia at the property’s address. The record does not reveal the connection of Kleiner or 

Madonia to the property or the parties. Assuming the contract was entered into with Old Town, it 

omitted any reference to Navigant. See 155 Harbor Drive Condominium Ass’n, 209 Ill. App. 3d 

at 647 (finding the condo association failed to meet its burden of proving the parties to a 

subcontract intended confer a direct benefit upon it where the subcontract did not mention the 

association or its members, did not express an intent to directly benefit them, and contained 

guarantees that did not mention the unit owners). Mohr’s inclusion of the property’s address does 
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not otherwise show an intent to benefit the property’s owner. See Wheeling Trust & Save Bank v. 

Tremco Inc., 153 Ill. App. 3d 136, 140-41 (1987) (finding that a purchase order’s identification 

of the property owner’s construction location as the place where materials were to be delivered 

did not make the owner an intended third-party beneficiary).

¶ 36 Assuming further still that Mohr knew Navigant owned the property, the omission of any 

reference to Navigant could very well indicate that Mohr and Old Town intentionally declined to 

make Navigant a third-party beneficiary. Salvi v. Village of Lake Zurich, 2016 IL App (2d) 

150249, ¶ 55 (finding that where the contracting parties omitted from the contract any reference 

to a third party known to benefit therefrom, the omission was deliberate). At best, Mohr’s 

knowledge that Navigant owned the property would make Navigant an incidental beneficiary.

¶ 37 Furthermore, Old Town, not Navigant, was to be the user of the contractual benefit. Old 

Town wanted the work done for its own benefit so that it could operate 33 Club. Mohr wanted 

the work to be done so Mohr would be paid. Nothing shows that either entity was concerned with 

benefiting Navigant. Midwest Concrete Products Co. v. La Salle National Bank, 94 Ill. App. 3d 

394, 398 (1981) (finding that the subcontract was entered into entirely in the interest of the 

general contractor, who was fulfilling its obligations under the general contract, and the 

subcontractor, who thought it would profit from the project; the benefit to the entity occupying 

the property involved was incidental). 

¶ 38 Harleysville further argues, however, that Mohr and Old Town intended to benefit 

Navigant because the contract stated, “Owners to provide preliminary restaurant & kitchen 

equipment layout.” While Harleysville assumes “owner” referred to the owner of the property, a 

more natural reading is that “owner” referred to the owner of the business with whom Mohr was 

contracting, as this provision purported to impose an obligation on the owner. This provision did 
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not confer any right upon Navigant, call for Mohr to perform the contract directly to Navigant or 

set forth a mechanism for Navigant to enforce the contract. Cf. People ex rel. Resnik v. Curtis & 

Davis, Architects & Planners, Inc., 78 Ill. 2d 381, 385-86 (1980) (finding the State was an 

intended third-party beneficiary of a construction contract to build a prison where, among other 

things, the contract required the architect to indemnify the State and hold it harmless); see also In 

re Estate of Wills, 357 Ill. App. 3d at 1009 (finding that per Resnik an owner may be a third-party 

beneficiary of a contract where the contract requires subcontractors to consult him and sets forth 

a method for the owner may recover); 155 Harbor Drive Condominium Ass’n, 209 Ill. App. 3d at

648 (finding Resnick to be distinguishable where the subcontracts at hand did “not describe an 

actual method by which the Association may recover from the subcontractors”); cf. Village of 

Fox Lake v. Aetna, 178 Ill. App. 3d 887, 911 (1989) (finding that where a statute required every 

contractor entering into a construction contract with a public entity to furnish a bond for work to 

be completed by a surety absent the contractor’s performance, the public entity was an intended

third-party beneficiary to the contractor’s agreement with the surety).

¶ 39 Harleysville nonetheless argues that Navigant was an intended third-party beneficiary 

because Old Town was required to obtain Navigant’s approval of renovation plans. While the 

amended complaint never set forth the source of that obligation, a very liberal reading of that 

pleading suggests that Old Town’s lease with Navigant imposed this obligation. Harleysville, 

however, failed to attach a copy of that lease to its amended complaint or attach it to any other 

pleading. See 735 ILCS 5/2-606 (West 2018) (stating that “[i]f a claim or defense is founded 

upon a written instrument, a copy thereof *** must be attached to the pleading as an exhibit or 

recited therein, unless the pleader attaches to his or her pleading an affidavit stating facts 

showing that the instrument is not accessible to him or her”). Even assuming the lease contained 
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such a requirement, the lease was not incorporated into the Mohr contract and Mohr did not 

otherwise contractually promise to submit plans to Navigant for review. 

¶ 40 Harleysville has not met its burden or overcome the presumption that Navigant was not 

an intended, direct third-party beneficiary. To find otherwise merely because Navigant owned 

the property at the time the contract was formed and executed would create the exception that 

swallowed the rule. “Logically, an owner will always benefit from any work done on his 

property.” Ball Corp. v. Bohlin Building Corp., 187 Ill. App. 3d 175, 179 (1989). Accordingly, 

the circuit court properly dismissed the breach of contract claim against Mohr.

¶ 41 ii. Fox Old Town Contract

¶ 42 For the same reasons, we reject Harleysville’s assertion that Navigant was an intended 

third-party beneficiary of the contract between Fox and Mohr merely because Navigant owned 

the property at the time the contract was formed and executed. Additionally, the affidavit

submitted by Fox clearly stated that Fox had no relationship with Old Town, let alone Navigant. 

The e-mails and invoice forming Fox’s contract with Mohr did not mention Navigant. 

Furthermore, we reiterate that Old Town, rather than Navigant, was to be the user of the

renovated property. Accordingly, the circuit court properly dismissed the breach of contract 

claim against Fox.5

¶ 43 iii. Bramco’s Contract

¶ 44 We also reject Harleysville’s assertion that Navigant was an intended third-party 

beneficiary of the contract between Bramco and Bottleneck. The “Standard Form of Agreement 

5

We reject Harleysville’s contention that we must reinstate this count because Fox Valley has not 

filed an appellee brief in this appeal. Because the issues are simple, we can easily decide this matter 

without the assistance of Fox’s appellee’s brief. See First Capitol Mortgage Corp. v. Talandis 

Construction Corp., 63 Ill. 2d 128, 133 (1976). 
No. 1-19-2427 

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Between Owner and Contractor” identified Bottleneck as the owner and required “the owner” to 

furnish information to the contractor. Additionally, the contract identified the Pour House as the 

project location and set forth the property’s address. The contract did not mention Navigant or 

otherwise refer to the owner of the property. Thus, this unambiguous contract did not come 

anywhere close to an express declaration of intent, by either Bramco or Bottleneck, to make 

Navigant a third-party beneficiary. 

¶ 45 Harleysville nonetheless states that “Bramco expressly incorporated a term in its contract 

for the benefit of Navigant, by requiring its subcontractors to name Navigant as an additional 

insured on the insurance policies obtained in relation to the work at the subject policy.” Rather 

than citing any particular contractual provision in support of the statement, Harleysville cites its 

own motion to reconsider. See Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018) (requiring argument to 

be supported by citations to the pages of the record relied on). In any event, the contract between 

Bramco and Bottleneck required only that Bramco maintain insurance: it did not require Bramco 

to ensure that its subcontractors name a Navigant as an additional insured. To the extent that 

Harleysville refers to Bramco’s agreements with its subcontractors, rather than the agreement 

between Bramco and Bottleneck, Harleysville has not alleged that Bramco or its subcontractors 

breached those agreements. Furthermore, Harleysville’s opening brief did not explain how the 

subcontracts are relevant to determining Bramco’s intent as to its contract with Bottleneck.

¶ 46 In its reply brief, Harleysville, states that “Bramco expressly incorporated its contracts 

with its subcontractors into its contract with Bottleneck.” Yet, Harleysville cites Bramco’s 

subcontract with Ameriscan Designs, Inc., not its contract with Bottleneck, once again failing to 

support its contention with a citation to the record. Harleysville has also failed to develop this 

into a cohesive argument explaining how this would render Navigant an intended beneficiary of 
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Bramco’s contract with Bottleneck. See also Midwest Concrete Products Co., 94 Ill. App. 3d at

398 (finding that while the subcontract stated it was “subject to” the terms of the general contract 

entered into with the entity that occupied and used the property, that entity was not a third-party 

beneficiary of the subcontract). Furthermore, a promise to obtain insurance reflects an intent to 

protect the contracting parties from liability, not necessarily an intent to confer a benefit upon the 

additional insured. See In re Estate of Wills, 357 Ill. App. 3d at 1009-1010 (finding the claimant 

was not a third-party beneficiary where no contractual language granted the claimant the right to 

enforce the subcontracts at issue, notwithstanding that the claimant was named as the general 

contractor in the insurance rider).

¶ 47 Harleysville further cites the following language found in Bramco’s subcontracts:

“Subcontractor agrees and acknowledges that Owner is an intended third party 

beneficiary of this Subcontract. Subcontractor further agrees and acknowledges that it 

shall have no recourse against Owner for any default by Contractor under this 

Subcontract other than under applicable mechanics lien law.” (Emphasis added.)

Harleysville ignores, however, that the subcontracts clearly identify Bottleneck, rather than 

Navigant, as owner. 

¶ 48 Finally, even if it were appropriate to examine evidence outside of Bramco’s 

unambiguous contract, we reject Harleysville’s assertion that it was an intended third-party 

beneficiary of the contract because Bottleneck’s lease required it to obtain approval from 

Navigant for alternations. At best, it shows an intent to abstain from harming Navigant or to limit 

Bottleneck’s own liability to Navigant. The circuit court properly dismissed this claim.

¶ 49 iv. CTI’s Contract
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¶ 50 We are also unpersuaded by Harleysville’s assertion that Navigant was an intended thirdparty beneficiary to the contract between CTI and Old Town. The contract did not mention 

Navigant or the owner of the property. While the contract refers to Tomaska, it clearly identifies 

him as a representative of Old Town, not Navigant. Assuming CTI knew that Navigant owned 

the property at the time the contract was formed and executed, we reiterate that this alone falls 

short of showing anything near an express intent to make Navigant a third-party beneficiary of 

the contract. The circuit court properly dismissed this breach of contract claim as well. 

¶ 51 v. Arch-H’s Contract

¶ 52 Harleysville further failed to show that Navigant was an intended third-party beneficiary 

of the agreement between Arch-H and Bottleneck. The agreement did not refer to Navigant. The 

agreement identified Bottleneck as “the Owner” and did not otherwise refer to the owner of the 

property. Additionally, the agreement did not purport to confer any rights upon Navigant or 

provide a means for it to enforce any rights. See 155 Harbor Drive Condominium Ass’n, 209 Ill. 

App. 3d at 648. Furthermore, Bottleneck, rather than Navigant, was the recipient of Arch-H’s 

performance. 

¶ 53 Moreover, section 10.5 of the agreement explicitly and unambiguously stated that 

“Nothing contained in the Agreement shall create a contractual relationship with or a cause of 

action in favor of a third party against either the Owner or Architect.” Barry v. St. Mary’s 

Hospital Decatur, 2016 IL App (4th) 150961, ¶¶ 83-84 (finding the plaintiff was not a thirdparty beneficiary where the contract explicitly named one third-party beneficiary and disavowed 

the parties’ liability to any other third parties); Ball Corp., 187 Ill. App. 3d at 178 (finding no 

third-party beneficiary was intended where the contract stated that “Nothing contained in the 
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contract documents shall create any contractual relation between any subcontractor and the 

Owner”). In light of this provision, we find Harleysville’s position to be disingenuous. 

¶ 54 Finally, Arch-H’s contract with Bottleneck did not incorporate Bottleneck’s lease with 

Navigant. Thus, the lease, which required Bottleneck to submit proposed alterations to Navigant 

or Tomaska for review and approval, has no bearing on this issue. The circuit court properly 

dismissed this claim.

¶ 55 vi. Advance’s Contract

¶ 56 We further reject Harleysville’s contention that a genuine issue of material fact exists as 

to whether Navigant was an intended third-party beneficiary of Advance’s contract with 

Bottleneck, precluding summary judgment. Contrary to Harleysville’s assertion, the record does 

not show that Advance had a contract with Bottleneck. Rather, Advance was a subcontractor of 

Arch-H. To the extent Harleysville believes that Navigant was an intended third-party 

beneficiary of that contract, Harleysville’s contention is forfeited, as its opening brief did not 

make this argument. See Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018). 

¶ 57 Forfeiture aside, the argument is meritless. The e-mails comprising Advance’s contract 

with Arch-H did not mention Navigant. We reiterate that even if Advance knew Navigant owned 

the property, this alone was insufficient to overcome the presumption that Navigant was not an 

intended third-party beneficiary of the contract. Accordingly, the circuit court properly entered 

summary judgment in Advance’s favor. 

¶ 58 B. The Economic Loss Doctrine 

¶ 59 Next, we find the circuit court properly ruled in favor of defendants with respect to 

Harleysville’s negligence claims.
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¶ 60 The economic loss doctrine denies a tort remedy for those whose complaint is rooted in 

the disappointment of commercial or contractual expectations. Sienna Court Condominium Ass’n 

v. Champion Aluminum Corp., 2018 IL 122022, ¶ 20. Under that doctrine, a plaintiff cannot 

recover in tort for solely economic loss. Id. Economic losses are damages for inadequate value, 

the cost of repairing or replacing a defective product, or resulting lost profits, excluding any 

claim for personal injury or damage to other property. Scott & Fetzer Co. v. Montgomery Ward 

& Co., Inc., 112 Ill. 2d 378, 387 (1986). The doctrine also extends defective services. 

Congregation of the Passion, Holy Cross Province v. Touche Ross & Co., 159 Ill. 2d 137, 160 

(1994). 

¶ 61 Much has been said with respect to the policies behind the economic loss doctrine. The 

doctrine recognizes that the economic losses of one event are virtually limitless, and “avoids the 

consequences of open-ended tort liability.” In re Chicago Flood Litigation, 176 Ill. 2d at 198. A 

qualitative defect and harm relating to a consumer’s expectations as to a product’s quality and 

fitness for ordinary use is addressed by contract law. Scott & Fetzer Co., 112 Ill. 2d at 387-88. 

Additionally, a service provider and their client have an important interest in defining the terms 

of its relationship before finalizing an agreement. Congregation of the Passion, Holy Cross 

Province, 159 Ill. 2d at 161. As our supreme court has recognized, subcontractors depend on 

their contacts with general contractors to define their risks and liability exposure, which in turn 

impacts the fees they set in their contracts. Sienna Court Condominium Ass’n, 2018 IL 122022, 

¶ 24. Furthermore, the doctrine applies even where the plaintiff is unable to recover in contract. 

Congregation of the Passion, Holy Cross Province, 159 Ill. 2d at 160-61; Anderson Electric, Inc. 

v. Ledbetter Erection Corporation, 115 Ill. 2d 146, 150, 153 (1986); see also Sienna Court 
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Condominium Ass’n, ¶ 21 (stating that an action for economic loss generally requires the plaintiff 

and the defendant to be in contractual privity).

¶ 62 The economic loss doctrine also seeks to define the contours of duty. 2314 Lincoln Park 

West Condominium Ass’n v. Mann, Gin, Ebel & Frazier, Ltd., 136 Ill. 2d 302, 315 (1990). 

Specifically, recovery in tort for purely economic loss is precluded where a service provider’s 

duties are defined by contract. Sienna Court Condominium Ass’n, 2018 IL 122022, ¶ 24. 

Conversely, the doctrine does not bar recovery in tort where a defendant breaches a duty that 

existed independently of a contract. Congregation of the Passion, Holy Cross Province, 159 Ill. 

2d at 164. Yet, courts have frequently applied the economic loss rule in construction cases. 

Sienna Court Condominium Ass’n, 2018 IL 122022, ¶ 21; see e.g., 2314 Lincoln Park West 

Condominium Ass’n, 136 Ill. 2d at 316-17 (finding “the plaintiff's theory that the defendant 

architectural firm was negligent in its design of the structure” concerned the quality, rather than 

the safety, of the building and consequently was more appropriately resolved through contract 

law); Fireman’s Fund Insurance Co., 176 Ill. 2d at 161 (holding that the economic loss doctrine 

prohibits a tort action against an engineer for purely economic losses). Latent construction 

defects that cause solely economic damages are not properly raised in a negligence claim. 

Foxcroft Townhome Owners Ass’n v. Hoffman Rosner Corp., 96 Ill. 2d 150, 156 (1983).

¶ 63 Here, Harleysville’s negligence claims, as alleged in the amended complaint, were clearly 

based on commercial expectations. Those claims expressly relied on the duties defined by 

defendants’ contracts. Additionally, Navigant and Harleysville were disappointed that 

defendants’ work did not live up to commercial expectations, notwithstanding that Navigant was 

a stranger to the contracts. Furthermore, Harleysville sought damages for repairs to trusses that 

were subject to the contracts as well as lost rent. These damages are the epitome of economic 
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loss. Moreover, we note that just as defendants defined their liabilities and rights through 

contract, Navigant had the same ability with respect to its lease agreements. Navigant could have 

negotiated for a term requiring its tenants to ensure that Navigant had express contractual rights 

in any renovation contracts they might enter into. Thus, we find that the economic loss doctrine 

barred Harleysville’s claims. 

¶ 64 Harleysville has wisely abandoned its reliance on the sudden and calamitous occurrence 

exception to the economic loss doctrine. See also Hecktman v. Pacific Indemnity Co., 2016 Il 

App (1st) 151459, ¶ 17 (finding that the plaintiffs failed to allege a sudden, dangerous or 

calamitous event and that their complaint instead alleged that their floors displayed damage over 

a period of time). Yet, Harleysville maintains that the damages sought cannot reflect 

disappointed commercial expectations because Navigant did not directly negotiate with 

defendants. Once again, Harleysville’s inability to succeed in contract does not preclude 

application of the doctrine. See Holy Cross Province v. Touche Ross & Co., 159 Ill. 2d 137, 160-

61 (1994); Anderson Electric, Inc., 115 Ill. 2d at 150, 153; but see Ferentchak v. Village of 

Frankfurt, 121 Ill. App. 3d 599, 606 (1984) (stating that the economic loss doctrine applies 

where the plaintiff’s injuries directly relate to reasonable commercial expectations and the 

plaintiff has an adequate contract action against the defendant) (reversed in part on other 

grounds, 105 Ill. 2d 474 (1985)); Scott & Fetzer Co. v. Montgomery Ward & Co., Inc., 129 Ill. 

App. 3d 1011, 1017 ( 1984) (finding that the doctrine did not bar the warehouse tenants’ 

recovery for fire damage because there were no commercial dealings between those tenants and

the defendant who installed the fire alarm system in the space adjacent to them) (affirmed on 

other grounds by Scott & Fetzer Co., 112 Ill. 2d at 388 (finding the economic loss doctrine did 

not apply because the plaintiff’s sought damages for the loss of property other than the defective 
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product and the loss resulted from a sudden and dangerous event)). Moreover, Navigant’s lack 

of negotiation with these defendants demonstrates why the rule should apply. 

¶ 65 These defendants negotiated with Navigant’s tenants, or each other, to define their rights 

and duties under their respective contracts. These negotiations informed defendants’ assessment 

of liability and their fees. Because Navigant has suffered only economic loss, it would be 

inappropriate to subject defendants to liability beyond the terms of their contracts. Had someone 

been hurt in this case, or had Navigant sustained other property damage, the same could not be 

said. We take the case as we find it, however. See also 2314 Lincoln Park West Condominium 

Ass’n, 136 Ill. 2d at 317 (stating that “if the purchaser buys goods which turn out to be below its 

expectations, its remedy should be against the person from whom it bought the goods, based 

upon the contract with that person”). 

¶ 66 Harleysville’s opening brief further represents that defendants had a duty to Navigant 

independent of defendants’ contracts because Navigant owned the property where defendants 

performed their work. That brief fails to explain how the status of one party created a 

relationship between two, or why such relationship would create an independent duty in tort. 

¶ 67 In its reply brief, Harleysville argues that defendants entered into a voluntary 

undertaking, thereby creating a duty per section 324A of the Restatement (Second) of Torts 

(1965). This contention is entirely forfeited. None of Harleysville’s prior pleadings in the circuit 

court or this court raised duty based on a voluntary undertaking. Moreover, section 324A does 

not apply to these facts:

“One who undertakes, gratuitously or for consideration, to render services to 

another which he should recognize as necessary for the protection of a third person or his 
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things, is subject to liability to the third person for physical harm resulting from his 

failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

(b) he has undertaken to perform a duty owed by the other to the third person, or

(c) the harm is suffered because of reliance of the other or the third person upon 

the undertaking.” (Emphasis added.) Restatement (Second) of Torts § 324A (1965). 

¶ 68 Here, defendants had no reason to know that their services were “necessary for the 

protection of a third person or his things.” This is because defendants entered into contracts to 

renovate a restaurant and their services were not necessary to protect anyone or anything. Cf. 

Scott & Fetzer Co., 112 Ill. 2d at 388 (finding the economic loss doctrine did not apply where the 

defendant supplied a defective fire alarm system).

¶ 69 Having determined that the economic loss doctrine barred Harleysville’s negligence 

claims, we find that the circuit court properly entered judgment in favor of defendants.

¶ 70 III. Conclusion

¶ 71 Navigant was not an intended third-party beneficiary of defendants’ contracts. It follows 

that the circuit court properly entered judgment in defendants’ favor on Harleysville’s breach of 

contract claims. Additionally, the economic loss doctrine precluded Harleysville’s negligence 

claims seeking the recovery of purely economic loss. In light of our determination, we need not 

consider the parties’ remaining contentions.

¶ 72 For the foregoing reasons, we affirm the circuit court’s judgment.

¶ 73 Affirmed.