UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

LYNN KRUIS, 

Plaintiff, 

v. 

TARGET CORPORATION, et al., 

Defendants. 

No. 12 CV 5675 

Judge Manish S. Shah 

MEMORANDUM OPINION AND ORDER

Lynn Kruis slipped on a clear liquid while shopping and sued several 

defendants for negligence. One defendant is Target Corporation—Kruis slipped in a 

Target store. Another defendant is Hussmann Corporation—Hussmann made the 

freezer that Kruis says leaked, causing her fall. In this motion for partial summary 

judgment, Target argues that (1) Hussmann is contractually obligated to defend 

Target in this suit; and (2) Hussmann breached its obligation to procure appropriate 

insurance covering Target. For the reasons below, Target’s motion is granted. 

I. Legal Standards 

Summary judgment is appropriate if the movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment as a 

matter of law. Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 

2014); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A genuine dispute as to 

any 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 (1986). In determining whether a genuine issue of material fact exists, the court 
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must construe all facts and reasonable inferences in the light most favorable to the 

nonmoving party. CTL ex rel. Trebatoski v. Ashland Sch. Dist., 743 F.3d 524, 528 

(7th Cir. 2014). “When the material facts are not in dispute, the existence and 

interpretation of a contract are questions of law that the court may decide on a 

motion for summary judgment.” Citadel Group v. Wash. Reg’l Med. Ctr., 692 F.3d 

580, 587 (7th Cir. 2012). The contract analysis here is governed by Minnesota law.1

II. Facts2

Lynn Kruis slipped on a clear liquid at a Target store. HSOF ¶ 7. Kruis 

alleges that the liquid came from a defective Hussmann freezer. TSOF ¶ 11. Target 

and Hussmann’s relationship concerning the freezer is governed by a contract. 

HSOF ¶ 1; TSOF ¶¶ 20, 22–23, 26–27. The contract contains the following 

indemnification provision (Hussmann is referred to as the “Supplier”): 

 

1 The contract specifies that Minnesota law governs. TSOF Ex. B § 11.2. In this diversity 

case, Illinois choice-of-law rules apply. Spitz v. Proven Winners N. Am., LLC, 759 F.3d 724, 

729 (7th Cir. 2014). Illinois follows the Restatement (Second) of Conflict of Laws. Morris B. 

Chapman & Assocs., Ltd. v. Kitzman, 193 Ill.2d 560, 568–69 (2000). So Minnesota law 

governs unless (1) Minnesota has “no substantial relationship to the parties or the 

transaction and there is no other reasonable basis for the parties’ choice,” or (2) applying 

Minnesota law “would be contrary to a fundamental policy of a state which has a materially 

greater interest . . . .” Old Republic Ins. Co. v. Ace Prop. & Cas. Ins. Co., 389 Ill.App.3d 356, 

363 (1st Dist. 2009) (quotation marks omitted). Neither side argues that either exception 

applies, and I see no reason why either would, so Minnesota law governs. Hussmann relies 

on a decision from this district, Brown v. Target Corp., 2013 U.S. Dist. LEXIS 151771 (N.D. 

Ill. 2013). But “[b]ecause Minnesota law applies, [I am] called on to predict how the 

Minnesota Supreme Court would answer the central legal question presented here.” Lyon 

Fin. Servs. v. Ill. Paper & Copier Co., 732 F.3d 755, 756 (7th Cir. 2013). I must predict what 

the Minnesota Supreme Court would do, even if that results in inconsistency with another 

court in this district. 

2 The facts are taken from the parties’ Local Rule 56.1 statements. “TSOF” refers to 

Target’s statements, with Hussmann’s responses [252]. “HSOF” refers to Hussmann’s 

statements, with Target’s responses [266]. Facts concerning Kruis’s allegations are taken 

from the third amended complaint [155] and are assumed true for present purposes. 
3 

Supplier shall defend, indemnify 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 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. 

TSOF ¶ 25. The contract also contains the following provision concerning insurance 

coverage: 

Supplier’s Commercial General Liability insurance shall designate 

Target as an additional insured by endorsement acceptable to 

Target. Designation of Target as an additional insured shall include 

as an insured with respect to third party claims or actions brought 

directly against Target or against Target and Supplier as codefendants and arising out of this Agreement. Supplier’s insurance 

shall include products and completed operations liability coverage, 

contractual liability coverage for liabilities assumed by Supplier 

under this Agreement, and coverage for property in the care, 

custody or control of Supplier. Supplier’s insurance shall be primary 

and required to respond to and pay prior to any other available 

coverage of Target. Supplier’s insurance also shall provide for a 

severability of interests. 

TSOF Ex. B § 7.2. 

III. Analysis 

Target moves for partial summary judgment, arguing that Hussmann (1) has 

a duty to defend Target; and (2) breached its duty to procure insurance covering 
4 

Target.3 Hussmann responds that neither its duty to defend nor its duty to procure 

insurance extends to claims asserted against Target for Target’s own negligence. 

A. Duty to Defend 

Under Minnesota law, when a party argues that it was indemnified for its 

own negligence, the relevant provision is strictly construed and indemnification is 

not found unless it is provided for by clear and unequivocal language.4 Yang v. 

Voyagaire Houseboats, Inc., 701 N.W.2d 783, 791–92 n.5 (Minn. 2005); Farmington 

Plumbing & Heating Co. v. Fischer Sand and Aggregate, Inc., 281 N.W.2d 838, 842 

(Minn. 1979). The language must “fairly apprise[]” the indemnitor of the scope of its 

obligation. Yang, 701 N.W.2d at 791 n.5. 

In relevant part, the agreement states that Hussmann “shall defend . . . 

Target . . . against any . . . claims . . . arising out of or otherwise relating to the 

subject matter of this Agreement . . . .” TSOF ¶ 25. The subject matter of the 

agreement is the purchase of Hussmann freezers for use in Target stores. Kruis 

alleges that Target was negligent in several ways, but the use of Hussmann freezers 

 

3 Target did not seek a declaration that Hussmann owes a duty to defend, nor did Target 

plead that Hussmann breached such a duty. See [161] at Counts V, VI, and VII. But both 

Target and Hussmann briefed the present motion as if a declaration was sought, effectively 

amending Target’s pleading. See A.I. Credit Corp. v. Legion Ins. Co., 265 F.3d 630, 638 (7th 

Cir. 2001); Whitaker v. T.J. Snow Co., 151 F.3d 661, 663 (7th Cir. 1998); Walton v. Jennings 

Cmty. Hosp., 875 F.2d 1317, 1320 (7th Cir. 1989); Cf. Fed.R.Civ.P. 15(b)(2). Target’s initial 

failure to seek a declaration therefore does not prevent me from issuing one. Given the 

fulsome briefing on both sides, and the likelihood that a declaration will materially advance 

the litigation, I resolve Target’s motion on the merits. 

4 The “indemnification” discussed in this opinion relates to Hussmann’s duty to defend (and 

“indemnify” for defense costs incurred). As both sides acknowledge, the question of whether 

Hussmann must indemnify Target for any payment ultimately made to Kruis is not ripe. 

[251] at 8; [267] at 9 n.2. 
5 

is a “but for” cause of any claim she has against Target. See [155] at 12–38. In short, 

were it not for the alleged leak from a Hussmann freezer, Kruis wouldn’t have 

fallen, been damaged, or brought suit—against any defendant, including Target. 

That means that her claims against Target “arise out of” the subject matter of the 

Target-Hussmann agreement (even though her claims have not yet been resolved 

and liability for her injuries not yet determined). See Faber v. Roelofs, 311 Minn. 

428, 436–37 (1977); Eng’g & Constr. Innovations, Inc. v. L.H. Bolduc Co., 825 

N.W.2d 695, 707 n.9 (Minn. 2013). The clear and unequivocal language of the 

agreement appears to obligate Hussmann to defend Target in this suit. 

Hussmann argues otherwise, noting that the Minnesota Supreme Court has 

written that “[t]here must be an express provision in the contract to indemnify the 

indemnitee for liability occasioned by its own negligence; such an obligation will not 

be found by implication.” [251] at 10 (quoting National Hydro Sys. v. M.A. 

Mortenson Co., 529 N.W.2d 690, 694 (Minn. 1995)). In the next sentence, the 

National Hydro court wrote that agreements will not be construed to cover the 

indemnitee’s own negligence “unless such intention is expressed in clear and 

unequivocal terms. . . .” 529 N.W.2d at 694. That is the case here. No “implication” 

is required because the “express provision” concerning indemnification is broad; 

even “strictly construed” it covers claims against Target for Target’s own negligence. 

Hussmann emphasizes that the provision does not explicitly state that it covers 

harm “caused by the negligence of Target.” HSOF ¶ 4; [251] at 2, 10, 13. But such 

magic words are not required. Johnson v. McGough Constr. Co., 294 N.W.2d 286, 
6 

288 (Minn. 1980); Bogatzki v. Hoffmann, 430 N.W.2d 841, 843, 845 (Minn. Ct. App. 

1988) (applying McGough and finding indemnification for lessor’s own negligence 

where tenant contracted to “indemnify . . . lessor against . . . all claims . . . for 

personal injury, wrongful death or property damage arising out of any act or 

occurrence committed or happening in or from the premises.”). 

In Yang, the Minnesota Supreme Court held against the indemnitee in a case 

involving broad indemnification language, but facts that were important to the 

Yang decision are not present here. In Yang, the indemnitee was a company that 

leased houseboats for recreational use, the agreement was their standard form 

agreement, and the indemnitor, Lao Xiong, was an individual who did not 

understand the agreement. Id. at 786–87. While Xiong and his family were using 

the boat, they suffered carbon monoxide poisoning, and it was later determined that 

the carbon monoxide detector was disconnected. Id. at 787. When Xiong’s family 

members sued the company, the company argued that Xiong had to defend and 

indemnify it. Id. at 788. The court focused on questions of public policy and found 

the indemnification provisions unenforceable. Id. at 792. In a footnote, it reached 

the same result on the alternative reasoning that the language in the 

indemnification provisions was not clear and unequivocal. Id. at 791 n.5. The court 

noted that “the indemnification clauses do not contain language that (1) specifically 

refers to negligence, (2) expressly states that the renter will indemnify Voyagaire 

for Voyagaire’s negligence, or (3) clearly indicates that the renter will indemnify 

Voyagaire for negligence occurring before the renter took possession of the 
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houseboat.” Id. “Overall,” the court could not “say that the language in the 

indemnification clauses fairly apprised Xiong of an obligation to indemnify 

Voyagaire not only for his own negligence that occurred while he was using the 

houseboat, but also the negligence of Voyagaire that occurred before the rental term 

began.” Id. (emphasis added). 

As emphasized above, the Yang court asked whether the indemnification 

provision fairly apprised Xiong, specifically, of his obligations, taking into account 

his lack of sophistication. And the case involved the unusual duty to indemnify the 

company for its own prior negligence (which predated its relationship with Xiong). 

Neither circumstance is present here. Both circumstances were used to distinguish 

Yang in Harleysville Ins. Co. v. Physical Distrib. Servs., 716 F.3d 451, 458 (8th Cir. 

2013). The indemnification provision in Harleysville was: 

PDSI hereby indemnifies and saves MILLER harmless from any 

and all claims, actions, or causes of action in any way relating to 

personnel assigned to MILLER, including, but not limited to, 

personal injury, workers compensation, third party claims, Social 

Security, unemployment compensation, and taxes or other required 

withholding of whatever nature. 

Id. at 455–56 (internal marks omitted). Although the provision did not explicitly 

mention Miller’s own negligence, the court held that the “plain meaning of the 

provision” was “clear and unequivocal enough to put PDSI on notice of its obligation 

to indemnify Miller . . . even if Miller’s own negligence caused the bodily injury.” Id. 

at 457; see also id. at 458 (“Unless ‘any’ does not mean any or ‘personal injury’ does 

not mean personal injury, we see nothing equivocal about this provision.”) 

(emphasis in original). The same is true of the provision in the contract here, and I 
8 

find the Eighth Circuit’s opinion in Harleysville persuasive.5 Accordingly, 

Hussmann’s duty to defend extends to Kruis’s claims against Target. 

B. Duty to Procure Insurance 

Hussmann was required to procure insurance covering Target for “claims . . . 

brought directly against Target . . . arising out of this Agreement.” TSOF Ex. B 

§ 7.2. Hussmann was to do so by amending its insurance policy to “designate Target 

as an additional insured by endorsement acceptable to Target.” HSOF ¶ 5. 

Hussmann obtained an endorsement, but concedes that it does not cover claims 

against Target for Target’s own negligence. TSOF ¶ 33; HSOF ¶ 6. Hussmann 

argues that its obligations did not extend that far. [251] at 11. 

Hussmann argues that because it was required to obtain an endorsement 

that was “acceptable to Target,” and because the endorsement it obtained does not 

cover Target’s negligence, it must be that Hussmann was not required to insure 

against Target’s negligence. [251] at 11. But the fact that Hussmann was supposed

to obtain an acceptable endorsement does not mean that whatever endorsement it 

obtained necessarily was acceptable. Hussmann’s argument might make sense if it 

 

5 In both National Hydro and Braegelmann v. Horizon Dev. Co., 371 N.W.2d 644, 646 

(Minn. Ct. App. 1985), the contractual language specified the circumstances of 

indemnification that when strictly construed, excluded the indemnitee’s own negligence. In 

National Hydro, the indemnitor (a contractor) was obligated to indemnify for claims which 

arose out of “performance of the WORK by CONTRACTOR . . . .” Nat’l Hydro, 529 N.W.2d 

at 692 (emphasis added). The court specifically relied on that language to strictly construe 

it against indemnification more broadly. Id. at 694. In Braegelmann, the provision on its 

face only applied to an injury “to the extent caused” by the indemnitor’s negligence. 371 

N.W.2d at 645. Under the strict construction rule, there was no indemnification for the 

indemnitee’s negligence. Id. at 646. Neither case had an indemnification provision that was 

written as broadly as the one in Hussmann’s contract with Target. 
9 

was shown that the endorsement was in fact acceptable to Target; but that hasn’t 

been shown. The endorsement is an agreement between Hussmann and its 

insurer—Target is not a party and there is no evidence that Target “accepted” the 

endorsement as satisfying Hussmann’s obligations. HSOF ¶ 6 (Target’s response). 

The endorsement does not mention Target at all—it refers generically to any party 

that Hussmann contracts to insure.6 There is no reason to use the endorsement to 

define or modify the contractual duties that Hussmann owed Target. 

The insurance provision in the Target-Hussmann contract is as clear and 

unequivocal as the defense and indemnification provision. Hussmann was required 

to add Target as an additional insured with respect to third party claims brought 

against Target “arising out of this Agreement” and this provision, even strictly 

construed, includes claims asserted against Target for Target’s own negligence. 

Hussmann admits that it did not procure the required insurance, so Target is 

entitled to summary judgment on Count VII. 

 

6 The endorsement was filed under seal. No further description is required for present 

purposes. 
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IV. Conclusion 

For the foregoing reasons, Target’s motion for partial summary judgment 

[240] is granted. Hussmann (1) was and is required to defend Target in this suit; 

and (2) breached its duty to procure insurance covering Target for liability that may 

arise from this suit. 

ENTER: 

 ___________________________ 

 Manish S. Shah 

 United States District Judge 

Date: 4/22/15