UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ANGELA BROWN, )

)

Plaintiff, ) No. 12 C 3036

) 

v. ) Judge George M. Marovich

) 

TARGET CORPORATION, ) 

)

Defendant. )

____________________________________)

)

TARGET CORPORATION, )

 )

Third-party plaintiff, )

)

v. )

)

HARBOR INDUSTRIES, INC., and )

LANKFORD CONSTRUCTION )

COMPANY, )

)

Third-party defendants. )

MEMORANDUM OPINION AND ORDER

After she was allegedly hit on the head by a dressing-room door that had fallen off its

hinges, plaintiff Angela Brown (“Brown”) filed in the Circuit Court of Cook County her

negligence suit against defendant Target Corporation (“Target”). Target removed the case to this

Court and filed a third-party complaint against third-party defendants Harbor Industries, Inc.

(“Harbor”) and Lankford Construction Company (“Lankford”). Target has filed a motion for

partial summary judgment with respect to Count II of its third-party complaint against Harbor. 

In that count, Target alleges that Harbor has a duty to defend and indemnify it with respect to

Brown’s claims against it. For the reasons set forth below, the Court denies Target’s motion.
I. Background

Local Rule 56.1 outlines the requirements for the introduction of facts parties would like

considered in connection with a motion for summary judgment. The Court enforces Local Rule

56.1 strictly. Facts that are argued but do not conform with the rule are not considered by the

Court. For example, facts included in a party’s brief but not in its statement of facts are not

considered by the Court because to do so would rob the other party of the opportunity to show

that such facts are disputed. Where one party supports a fact with admissible evidence and the

other party fails to controvert the fact with citation to admissible evidence, the Court deems the

fact admitted. See Ammons v. Aramark Uniform Services, Inc., 368 F.3d 809, 817-818 (7th Cir.

2004). This does not, however, absolve the party putting forth the fact of its duty to support the

fact with admissible evidence. See Keeton v. Morningstar, Inc., 667 F.3d 877, 880 (7th Cir.

2012). Asserted “facts” not supported by deposition testimony, documents, affidavits or other

evidence admissible for summary judgment purposes are not considered by the Court. 

The following facts are undisputed unless otherwise noted. 

On December 17, 2011, plaintiff Angela Brown was hit on the head by a fitting-room

door when she attempted to exit a fitting room in the Target store located at 6601 Grand Avenue

in Gurnee, Illinois (the “Gurnee store”). 

Before that date, Target had contracted with Harbor to design and provide materials for

the construction of fittings rooms at the Gurnee store. The contract was called the “Program

Agreement for Fitting Rooms” and incorporated by reference a prior agreement called the

“Supplier Qualification Agreement.” The Supplier Qualification Agreement, in turn, stated,

among other things:

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Supplier shall indemnify, defend and hold harmless Target, its affiliates, and their

respective directors, officers, shareholders, employees, contractors, and agents

(“the Target Parties”), from and against any liabilities, losses, claims, suits

damages, costs and expenses (including without limitation reasonable attorneys’

fees and expenses) (each a “Claim”) arising out of or otherwise relating to the

subject matter of this Agreement, Supplier’s performance or failure to perform as

required by this Agreement, Supplier’s acts or omissions, or Supplier’s failure to

comply with any of the Supplier’s representations or warranties contained in this

Agreement. Any attorney selected by Supplier to defend Target Parties must be

reasonably satisfactory to Target. Supplier may not settle a Claim (in whole or in

part) without Target’s prior written consent.

(Supplier Qualification Agreement at 4) (emphasis added). Harbor is the “Supplier” in the

contract. The contract also states, “The laws of the State of Minnesota, without regard to

Minnesota’s choice of law principles, govern all matters arising out of or related to this

Agreement.” (Supplier Qualification Agreement at 6). 

II. Standard on a motion for summary judgment

Summary judgment shall be granted when “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When

making such a determination, the Court must construe the evidence and make all reasonable

inferences in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247 (1986). Summary judgment is appropriate, however, when the non-moving party “fails to

make a showing sufficient to establish the existence of an element essential to the party’s case,

and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986). “A genuine issue of material fact arises only if sufficient evidence favoring the

nonmoving party exists to permit a jury to return a verdict for that party.” Brummett v. Sinclair

Broadcast Group, Inc., 414 F.3d 686, 692 (7th Cir. 2005).

III. Discussion

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In Count II of its third-party complaint, Target alleges that Harbor must defend and

indemnify it with respect plaintiff Brown’s claim that Target was negligent. In moving for

summary judgment with respect to Count II, Target argues that the language of the

indemnification clause is broad enough to cover Target’s own negligence. Harbor disagrees. 

Harbor argues that the indemnification clause is not sufficient, under Minnesota law, to cover

Target’s own negligence. Alternatively, Harbor argues that the contract is a construction

contract, subject to the Minnesota and/or Illinois statutes that barring from construction contracts

clauses in which a party is indemnified for its own negligence. 

This federal court, which is sitting in diversity, applies the choice-of-law rules of Illinois-

-its forum state. Hinc v. Lime-O-Sol Co., 382 F.3d 716, 719 (7th Cir. 2004). Illinois law

respects a choice-of-law provision in a contract, so long as the chosen law is not “‘contrary to

Illinois’s fundamental public policy.’” Tradesmen Int’l, Inc. v. Black, 724 F.3d 1004, 1012 (7th

Cir. 2013) (quoting Thomas v. Guardsmark, Inc., 381 F.3d 701, 705 (7th Cir. 2004)). The

contract at issue in this case contains a clause that states it will be governed by the laws of the

state of Minnesota. Accordingly, this Court will apply Minnesota law.

Minnesota courts will enforce clauses to indemnify the indemnitee for its own negligence

under some, but not all, circumstances. As the Supreme Court of Minnesota has explained:

Agreements seeking to indemnify the indemnitee for its own negligence are not

favored by the law and are not construed in favor of indemnification unless such

intention is expressed in clear and unequivocal terms, or unless no other meaning

can be ascribed to it.

Yang v. Voyagaire Houseboats, Inc., 701 N.W.2d 783, 791 (S.Ct. Minn. 2005) (quoting National

Hydro. Sys. v. MA Mortenson Co., 529 N.W.2d 690, 694 (Minn. 1995)). In Yang, the Supreme

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Court of Minnesota was considering an indemnity clause that said, “[third-party defendant] shall

indemnify and hold harmless [third-party plaintiff] from and against all claims, actions,

proceedings, damage and liabilities, arising from or connected with [third-party defendant’s]

possession, use and return of the boat, or arising at any time during the term of this rental.” 

Yang, 701 N.W.2d at 791(emphasis added). The Supreme Court of Minnesota rejected the

argument that this (and one other) indemnification clause was clear enough to cover the

indemnitee’s own negligence. The court explained:

[W]e also determine that the indemnification clauses are not enforceable because

the language is not clear and unequivocal. Strictly construed, the indemnification

clauses do not contain language that (1) specifically refers to negligence, (2)

expressly states that the renter will indemnify [third-party plaintiff] for [thirdparty plaintiff’s] negligence, or (3) clearly indicates that the renter will indemnify

[third-party plaintiff] for negligence occurring before the renter took possession

of the houseboat.

* * *

We reject the court of appeals’ suggestion that the requirement of clear and

unequivocal language concerning the scope of the indemnification clause applies

only in the context of building and construction contracts.

Yang, 701 N.W.2d at 792 n. 5 (internal citations omitted). Although the language in the contract

in Yang was not clear and unequivocal, Minnesota courts have enforced contracts that included

indemnification clauses for a party’s own negligence where the language was clear and

unequivocal. See Lake Cable Partners v. Interstate Power Co., 563 N.W.2d 81, 86 (Ct.App.

Minn. 1997) (collecting cases). For example, in Lake Cable, the court enforced a contract that

said the defendant would indemnify the plaintiff for negligence “‘including negligence on the

part of [plaintiff] or claimed on the part of [plaintiff],’” because the court concluded that “this

language conveys the clear intent that [plaintiff] be indemnified for its own negligence.” Lake

Cable, 563 N.W.2d at 86. 

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In this case, in arguing that the contract requires Harbor to indemnify Target for Target’s

own negligence, Target points to the portion of the contract that requires Harbor to indemnify

Target for claims “arising out of or otherwise relating to the subject matter of this Agreement.” 

Target believes this language is broad enough to require Harbor to indemnify Target for its own

negligence. This language, however, is very similar to the language the Supreme Court of

Minnesota rejected in Yang. Nothing in the clause mentions negligence or that Harbor must

indemnify Target for Target’s own negligence. Accordingly, the contract does not clearly and

unequivocally require Harbor to defend and/or indemnify Target for Target’s own negligence,

and Target’s argument fails as a matter of Minnesota law. 

Because this Court has concluded that, as a matter of Minnesota law, the language of the

indemnification clause does not require Harbor to indemnify Target for Target’s own negligence,

the Court need not consider Harbor’s alternative argument that the indemnification clause is

barred by the Illinois and/or Minnesota statutes that forbid such clauses in construction contracts.

Target has not shown that it is entitled to judgment as a matter of law, so its motion for

partial summary judgment with respect to Count II is denied.

IV. Conclusion

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For the reasons set forth above, the Court denies Target’s motion for partial summary

judgment.

ENTER:

 

George M. Marovich

United States District Judge

DATED: October 22, 2013

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