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 

ORDER

Hussmann’s motion for reconsideration or immediate appeal [282] is denied. 

STATEMENT

Lynn Kruis slipped on a clear liquid while shopping at a Target store. The 

liquid allegedly came from a defective Hussmann freezer. Kruis sued Target, 

Hussmann, and several other defendants. Target moved for partial summary 

judgment, arguing that Hussmann was contractually obligated to defend and insure 

Target against Kruis’s claims. The court granted Target’s motion. [271]. Hussmann 

moves for reconsideration, or alternatively for the opportunity to appeal immediately 

(either under Rule 54(b) or under 28 U.S.C. § 1292(b)). 

Reconsideration 

Hussmann acknowledges that “[m]otions for reconsideration serve limited 

functions.” [283] at 2. The applicable one here, Hussmann argues, is to correct a 

“manifest error[] of law.” Id. Hussmann argues that the summary-judgment ruling 

was a manifest error of law because permitting indemnification against one’s own 

negligence is bad public policy. [282] at 3–4; [288] at 6–7. Hussmann made no such 

argument when it initially opposed Target’s motion, and that failure is reason 

enough to deny Hussmann’s motion for reconsideration. See Ahmed v. Ashcroft, 388 

F.3d 247, 249 (7th Cir. 2004) (“Reconsideration is not an appropriate forum for . . . 

arguing matters that could have been heard during the pendency of the previous 

motion.”); Caisse Nationale de Credit Agricole v. CBI Indus., 90 F.3d 1264, 1270 (7th 

Cir. 1996) (“A party seeking to defeat a motion for summary judgment is required to 

wheel out all its artillery to defeat it. Belated factual or legal attacks are viewed with 

great suspicion . . . .”). Moreover, Hussmann’s policy argument is unpersuasive. 

Policy concerns did not lead Minnesota to outright prohibit indemnification against 

one’s own negligence. To the contrary, Minnesota permits such indemnification if it is 
2 

provided for by clear and unequivocal language. Yang v. Voyagaire Houseboats, Inc., 

701 N.W.2d 783, 791–92 n.5 (Minn. 2005). The prior ruling did not ignore policy 

considerations; it required Target’s indemnification to be provided for in clear and 

unequivocal language. Hussmann disagrees that the language is clear, but that is not 

a basis for reconsideration. 

Hussmann also repeats the arguments it previously advanced, which does not 

warrant the granting of its motion. See Ahmed v. Ashcroft, 388 F.3d at 249 

(“Reconsideration is not an appropriate forum for rehashing previously rejected 

arguments . . . .”); Oto v. Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000). 

In particular, Hussmann relies on Yang and National Hydro Systems v. M.A. 

Mortenson Co., 529 N.W.2d 690 (1995)—cases that were discussed in the prior 

opinion. [271] at 5, 6–7, 8 n.5. It is true that the indemnification provision in Yang

was broad. But Hussmann ignores that, in deciding whether the provision was clear 

and unequivocal, the Yang court took into account the contracting parties’ relative 

sophistication and the unusual nature of the indemnity obligations (requiring the 

unsophisticated individual to indemnify against the sophisticated company’s 

negligence that predated the parties’ relationship). Yang, 701 N.W.2d at 791 n.5; 

[271] at 6–7. In contrast, the parties here are both sophisticated. See Harleysville Ins. 

Co. v. Physical Distrib. Servs., 716 F.3d 451, 458 (8th Cir. 2013) (in contrast to Yang, 

“the parties in this case are sophisticated businesses who fully understood the terms 

of the agreement”).1

Concerning National Hydro, that case is distinguishable (for present 

purposes). See [283] at 8. In National Hyrdo, a contractor agreed to indemnify “from 

and against all claims . . . which arise out of . . . performance of the WORK by 

CONTRACTOR . . . .” 529 N.W.2d at 692. In contrast, Hussmann agreed to 

indemnify Target against claims arising out of: (1) Hussmann’s “performance or 

failure to perform”; (2) Hussmann’s “acts or omissions”; (3) Hussmann’s “failure to 

comply with any of [Hussmann’s] representations or warranties”; and (4) “the subject 

matter of this Agreement.” [252] ¶ 25 (emphasis added). Hussmann’s obligation to 

indemnify Target against claims arising out of “the subject matter” of the agreement 

(see [271] at 4) distinguishes it from the obligation in National Hydro. The clause in 

this case, unlike the clause in National Hydro, does not require that the indemnitor 

be the culpable party. 

The request to reconsider is denied. 

 

1 Hussmann argues at length that Harleysville is not “binding.” [288] at 2, 4–6. It was not 

treated as such. [271] at 2 n.1 (quoting Lyon Fin. Servs. v. Ill. Paper & Copier Co., 732 F.3d 

755, 756 (7th Cir. 2013)). Yang and National Hydro were distinguishable and Harleysville

was “persuasive.” [271] at 6–8 & n.5. 
3 

Certification under Rule 54(b) 

Hussmann asks that the summary-judgment order be certified as final under 

Federal Rule of Civil Procedure 54(b). [283] at 10–11. Certification requires both that 

the order “finally dispose of a separate claim or a separate party” and that “there is 

no just reason for delay.” Parks v. Pavkovic, 753 F.2d 1397, 1401 (7th Cir. 1985); Fed. 

R. Civ. P. 54(b). 

The part of the opinion declaring that Hussmann breached its duty to procure 

insurance is not final—the existence and extent of damages remain to be determined 

and are substantive rather than ministerial. See Parks, 753 F.2d at 1401. 

Accordingly, Rule 54(b) certification is not proper. 

Whether to certify the part of the opinion declaring that Hussmann has a duty 

to defend Target is a more complicated question. In certain circumstances, a 

declaration that a duty to defend exists (or does not exist) can properly be certified 

under Rule 54(b). See McMunn v. Hertz Equipment Rental Corp., 791 F.2d 88, 91 (7th 

Cir. 1986); Mut. Serv. Cas. Ins. Co. v. Country Life Ins. Co., 859 F.2d 548, 550 (7th 

Cir. 1988). But that is not an ironclad rule—the details of the case are important. 

Certification is not proper if issues that remain before the district court are 

“substantively intertwined” with the duty-to-defend question such that the “district 

court’s decision on that issue may be revisited and revised[.]” General Ins. Co. of Am. 

v. Clark Mall Corp., 644 F.3d 375, 380 (7th Cir. 2011). Furthermore, “[e]ven when 

claims are separate, an appeal ought not follow as of course.” Horn v. Transcon Lines, 

898 F.2d 589, 592 (7th Cir. 1990). One consideration is whether certification 

increases the likelihood of multiple appeals. Clark Mall Corp., 644 F.3d at 379 (“Rule 

54(b) appeals are generally limited to situations where one of multiple claims is fully 

adjudicated—to spare the court of appeals from having to keep relearning the facts of 

a case on successive appeals.”); Horn, 898 F.2d at 592 (“[W]hen the questions 

remaining in the district court factually overlap those on appeal, presenting a specter 

of sequential appellate resolution, the appeal is impermissible.”). 

Target pleaded a breach-of-contract crossclaim against Conlon Construction 

Company, in which Target alleges that Conlon (or its insurer) owes Target duties of 

defense and indemnity in this case. [161] at 5–7. Target has a similar crossclaim 

against General Refrigeration Service Corporation. [161] at 9–11. Target argues that 

these claims are intertwined with Hussmann’s duty to defend because it remains to 

be determined what portion of Target’s costs will be borne by each of the entities that 

may owe Target a defense. [291] at 2–3. Target’s argument is persuasive. The factual 

overlap presents the specter that an appellate court will have to relearn the facts of 

this case—including the specific insurance, defense, and indemnity provisions at 
4 

issue—in sequential appeals. Accordingly, certification under Rule 54(b) is not 

appropriate. 

Interlocutory Appeal under 28 U.S.C. § 1292(b) 

Hussmann asks for an order under 28 U.S.C. § 1292(b), which would give the 

Court of Appeals discretion to hear an immediate appeal from Hussmann. This court 

should enter such an order only if the summary-judgment order “involves a 

controlling question of law as to which there is substantial ground for difference of 

opinion and [] an immediate appeal from the [summary-judgment] order may 

materially advance the ultimate termination of the litigation[.]” 28 U.S.C. § 1292(b). 

The summary-judgment issue was decided entirely upon a question of law, and 

the parties’ briefs highlighted a substantial ground for difference of opinion. But the 

court is not convinced that an immediate appeal will materially advance the ultimate 

termination of the litigation. Hussmann argues that without an immediate appeal 

settlement will be impossible, because “[u]nless and until all appellate options are 

exhausted, Hussmann will not agree to pay for Target’s negligence.” [283] at 13. 

Hussmann did not argue that the identity of the payor alters the value of Kruis’s 

claims. Nor did Hussmann argue that it is financially incapable of paying—it just 

does not want to. A party’s preference for appeal over continued district-court 

litigation does not satisfy the § 1292(b) criteria. 

Conclusion 

Hussmann’s motion [282] is denied. 

ENTER: 

Date: 6/26/15 

 Manish S. Shah 

 U.S. District Judge