In the

United States Court of Appeals

For the Seventh Circuit ____________________

Nos. 19-2414 & 19-2395

THOMAS ROBERTS and DIANE ROBERTS,

Plaintiffs,

v.

ALEXANDRIA TRANSPORTATION, INC., et al.,

Defendants.

____________________

ALEXANDRIA TRANSPORTATION, INC., et al.,

Third-Party Plaintiffs-Appellants, Cross-Appellees,

v.

SAFETY INTERNATIONAL, LLC,

Third-Party Defendant-Appellee, Cross-Appellant.

____________________

Appeals from the United States District Court for the

Southern District of Illinois, East St. Louis Division.

No. 3:14-cv-1063 – J. Phil Gilbert, Judge. 

____________________

ARGUED MAY 19, 2020 — DECIDED AUGUST 5, 2020

____________________

Before EASTERBROOK, BRENNAN, and ST. EVE, Circuit Judges.
2 Nos. 19-2414 & 19-2395

ST. EVE, Circuit Judge. At a road construction site in Madison County, Illinois, a flagger abruptly turned his sign from 

“SLOW” to “STOP.” Thomas Roberts slammed on his breaks, 

and Alexandre Solomakha rear-ended him, causing Roberts 

serious injury and prompting a lawsuit against Solomakha 

and transportation companies Alexandria Transportation, 

Inc. and Alex Express, LLC.1 The Alex Parties filed a thirdparty complaint for contribution against the general contractor for the construction site, Edwards-Kamalduski (“E-K”), 

and a subcontractor, Safety International, LLC (“Safety”). E-K 

settled with the plaintiffs, and the district court dismissed it 

from the Alex Parties’ contribution action with prejudice. The 

Alex Parties later settled with the plaintiffs, as well.

With E-K out of the picture, though, the Alex Parties’ case 

becomes more complicated. The Alex Parties contend that the 

Illinois Joint Tortfeasor Contribution Act, 740 ILCS 100 (the 

“Contribution Act”), allows for the court to redistribute E-K’s 

share of liability as determined by a jury between the Alex 

Parties and Safety, but Safety disagrees. The controversy surrounds the meaning of a particular phrase in the statute—

“unless the obligation of one or more of the joint tortfeasors is 

uncollectable.” We can find no decision of an Illinois court 

that has addressed whether the “obligation” of a settling 

party is “uncollectable” pursuant to 740 ILCS 100/3. Rather 

than decide this issue in the first instance, we respectfully request that the Illinois Supreme Court do so. 

1 The parties have referred to Solomakha, Alexandria Transportation, 

Inc., and Alex Express, LLC collectively throughout this litigation as the 

“Alex Parties.” We continue to do so here.
Nos. 19-2414 & 19-2395 3

I. Background

Thomas Roberts was driving a truck westbound through 

a construction zone on Interstate 70 in Madison County, Illinois, when a work zone flagger suddenly turned a “SLOW” 

sign to “STOP.” When Roberts abruptly slammed on his 

brakes, Solomakha’s tractor rear-ended Roberts’s truck. Roberts’ injuries resulted in medical bills totaling over $500,000. 

Plaintiffs Thomas and Diane Roberts filed a complaint 

against the Alex Parties for negligence under Illinois common 

law in the United States District Court for the Southern District of Illinois, which sat in diversity jurisdiction. The Alex 

Parties, in turn, filed a third-party complaint for contribution 

against E-K, the general contractor for the road construction 

project, and Safety, the subcontractor E-K retained through an 

oral contract to manage (some disputed aspect of) the construction site’s worker safety program. The plaintiffs settled 

with E-K for $50,000, and E-K filed a motion for a good faith 

finding pursuant to the Contribution Act. The district court 

granted this motion and dismissed E-K with prejudice. The 

Alex Parties then settled with the plaintiffs for a confidential 

amount. That settlement released claims against Safety, as 

well. 

The Alex Parties continued with their contribution action 

against Safety, which filed a motion for summary judgment, 

arguing it owed no duty to the plaintiffs based on its oral contract with E-K. The district court denied this motion, and the 

Alex Parties and Safety proceeded to trial to resolve the Alex 

Parties’ contribution claim. Before trial, the district court determined that, as a matter of Illinois law, the Alex Parties, 

Safety, and E-K all must appear on the verdict form so that 

the jury could adequately apportion fault among every party, 
4 Nos. 19-2414 & 19-2395

even though the court had dismissed E-K. The court also determined, based on its interpretation of the Contribution Act,

the share of liability that the jury assigned to E-K should not 

be redistributed between the Alex Parties and Safety on a pro 

rata basis—instead, Safety would pay to the Alex Parties only 

what the jury determined was its portion of fault, and the 

Alex Parties would remain liable for E-K’s entire share along 

with its own. 

At trial, the Alex Parties and Safety disputed the scope of 

the oral contract in which Safety agreed to provide services to 

E-K. Safety, on one hand, contended that it agreed to provide 

only services related to workers’ compensation insurance. 

The Alex Parties, meanwhile, introduced evidence depicting 

a broader agreement covering all site safety issues. The president of Safety—Mike Sicking—admitted at trial that he authored the Site Specific Safety Plan (“the Plan”), which E-K 

submitted to the Illinois Department of Transportation. The 

Plan identified Sicking as the job Safety Director and the “primary” contact “to help assist in day-to-day safety issues.” The 

Plan also stated that “traffic control shall be in accordance 

with the applicable sections of the standard specs for the road 

and bridge construction, [and] the applicable guidelines contained in the National Manual on Uniform Traffic Control Devices for Streets and Highways” (the “MUTCD”). Sicking admitted that he had agreed to perform a job hazard analysis for 

each job description on the site, establish corresponding 

safety procedures, and perform monthly audits to monitor 

compliance. He sent a written proposal to E-K offering services for $1,400 a month, and received that amount for his services. Sicking explained, though, that E-K did not take advantage of all the services offered. Sicking admitted, for 
Nos. 19-2414 & 19-2395 5

example, that he proposed to offer in-service safety training 

to E-K’s employees, but that he never provided such training. 

Sicking admitted that if he visited the construction site and 

saw something unsafe, he had the authority to stop that practice. Thus, if the saw the site was missing a “flagger-ahead”

sign, he would have said something about it because it would 

have presented a safety issue. A flagger failing to give proper 

notice to oncoming drivers to stop was another such issue

where he would have intervened. Sicking further admitted he 

was not on site on a daily basis and he never confirmed 

whether the flaggers were compliant with the Plan. 

In support of Safety’s theory, Sicking testified that the oral 

contract between Safety and E-K did not involve traffic control or flagger training, as Sicking claimed he did not get involved in flagging operations. Kevin Edwards, on behalf of EK, testified that the oral contract between E-K and Safety did 

not provide for flagger training or designing traffic control 

procedures because the flagger union trains the flaggers and 

it was the duty of the contractor (in this case, E-K) to have 

traffic control procedures in place. 

After the conclusion of the trial, the jury determined the 

respective percentage of fault for each party as follows:

10% Safety International 

15% The Alex Parties

75% Edwards-Kamadulski

The Alex Parties were therefore on the hook for 90% of the 

total liability for the accident—their share plus E-K’s. Safety, 

meanwhile, was only obligated to contribute 10%. The district 

court denied the Alex Parties’ post-trial motion to alter or 
6 Nos. 19-2414 & 19-2395

amend the judgment under Federal Rules of Civil Procedure 

59(e) and 52(b), which asked the court to revisit its determination of the reallocation issue. The court also denied Safety’s 

post-trial motion for judgment as a matter of law under Rule 

50(b), where Safety renewed its argument that the oral contract it entered into with E-K did not create a duty to the plaintiffs.

The Alex Parties appealed, contesting the district court’s 

resolution of the reallocation issue. Safety cross-appealed, 

once again arguing that the district court erred in determining 

it owed a duty to the plaintiffs.

II. Discussion

A federal court sitting in diversity jurisdiction must apply 

the substantive law of the state in which its sits. Erie R.R. Co. 

v. Tompkins, 304 U.S. 64 (1938). The parties agree Illinois law 

governs this matter. We review a district court’s interpretation of state law de novo and the application of the legal 

standard to the facts for clear error. e360 Insight, Inc. v. Spamhaus Project, 658 F.3d 637, 648 (7th Cir. 2011).

We review a district court’s ruling on a Rule 50(b) motion

for judgment as a matter of law de novo, construing “the trial 

evidence ‘strictly in favor of the party who prevailed before 

the jury.’” Thorne v. Member Select Ins. Co., 882 F.3d 642, 644 

(7th Cir. 2018) (quoting Empress Casino Joliet Corp. v. Balmoral 

Racing Club, Inc., 831 F.3d 815, 822 (7th Cir. 2016)). “We give 

the nonmovant ‘the benefit of every inference’ while refraining from weighing for ourselves the credibility of evidence 

and testimony.” Ruiz-Cortez v. City of Chicago, 931 F.3d 592, 

601 (7th Cir. 2019) (quoting EEOC v. Costco Wholesale Corp., 

903 F.3d 618, 621 (7th Cir. 2018)). Accordingly, “we must 
Nos. 19-2414 & 19-2395 7

affirm unless there is ‘no legally sufficient evidentiary basis 

for a reasonable jury to find for the non-moving party.’” J.K.J. 

v. Polk Cty., 960 F.3d 367, 378 (7th Cir. 2020) (en banc) (quoting 

Woodward v. Corr. Med. Servs. of Ill., Inc., 368 F.3d 917, 926 (7th 

Cir. 2004)).

A. Safety’s Duty to the Plaintiffs

We begin our analysis with Safety’s cross-appeal, in which 

Safety challenges whether the Alex Parties presented sufficient evidence at trial to show that the oral contract between 

Safety and E-K created a duty that Safety owed to the plaintiffs to ensure the safety of the construction site. If there is not 

a sufficient evidentiary basis for the existence of this duty, the 

Alex Parties’ contribution action against Safety is doomed. 

Under Illinois law, “the negligent performance of contractual duties causing physical injury can give rise to tort liability 

regardless of whether privity of contract exists between the 

plaintiff and the defendant, and the scope of the defendant’s 

duty is dependent on the terms of the contract.” Unger v. Eichleay Corp., 614 N.E.2d 1241, 1245 (Ill. App. Ct. 1993) (citations 

omitted). In many contexts, Illinois courts have noted that a 

contract defines the scope of a duty between a contractor and 

the general public. See Thompson v. Gordon, 948 N.E.2d 39, 51–

52 (Ill. 2011) (contract between a general contractor and engineering firm defined the scope of the engineering firm’s duties to the general public); Ferentchak v. Vill. of Frankfort, 475 

N.E.2d 822, 825–26 (Ill. 1985) (civil engineer had no duty to 

homeowner to set foundation grades because his contract 

with the land developer did not require him to do so); Block v. 

Lohan Assoc., Inc., 645 N.E.2d 207, 224 (Ill. App. Ct. 1993) 

(structural engineer did not a have a duty to ensure safety to 

the employees of the general contractor where the contract 
8 Nos. 19-2414 & 19-2395

with the general contractor was limited to design conformance); O’Brien v. Musfeldt, 102 N.E.2d 173, 178 (Ill. App. Ct. 

1951) (contract between engineering firm and the state created a duty to the general public to install warning signs). Indeed, contractors have “a duty to protect members of the public from injuries in connection with construction work on 

highways,” in particular. Mora v. State, 369 N.E.2d 868, 871–

72 (Ill. 1977) (collecting cases).2

Where a negligence action derives from a contractual obligation, “[t]he question of whether a duty exists ... is determined by the terms of the contract, and the duty, if any, will 

not extend beyond that described in the contract.” Winters v. 

Fru-Con Inc., 498 F.3d 734, 746 (7th Cir. 2007) (quoting Putman 

v. Vill. of Bensenville, 786 N.E.2d 203, 208 (Ill. App. Ct. 2003)); 

see also Melchers v. Total Elec. Constr., 723 N.E.2d 815, 818 (Ill. 

App. Ct. 1999). Ordinarily, the determination of whether a 

duty exists is a question of law. Ward v. K Mart Corp., 554 

N.E.2d 223, 226 (Ill. 1990). But the terms of an oral contract, 

along with whether it exists, its conditions, and the intent of 

2 Safety cites a handful of cases purporting to contradict the proposition that a contract can establish and define a duty between a contractor 

and the general public, but none of them refute this statement of the law. 

Indeed, in two of the cases Safety cites, the court held that a contract did 

not create a duty to protect the general public from intervening criminal 

acts specifically. See Sanchez v. Wilmette Real Estate & Mgmt. Co., 934 N.E.2d 

1029, 1037 (Ill. App. Ct. 2010) (apartment complex did not undertake a 

duty to protect tenants from harm by a third-party attacker); Chelkova v. 

Southland Corp., 771 N.E.2d 1100, 1110 (Ill. App. Ct. 2002) (holding that a 

franchisee was not liable to an employee who was assaulted on the premises, despite the franchisee undertaking to provide certain security 

measures). This key factual difference distinguishes those cases from the 

one we address today. 
Nos. 19-2414 & 19-2395 9

the parties, are questions of fact for the jury to determine. Otto 

v. Variable Annuity Life Ins. Co., 134 F.3d 841, 848 (7th Cir. 1998) 

(citing Mulliken v. Lewis, 615 N.Ed.2d 25, 27 (Ill. App. Ct. 1993); 

In re Estate of Kern, 491 N.E.2d 1275, 1280 (Ill. App. Ct. 1986)). 

If the contract is ambiguous, the parties may introduce extrinsic evidence to help the factfinder interpret the contract. Kurti 

v. Fox Valley Radiologists, Ltd., 464 N.E.2d 1219, 1226 (Ill. App. 

Ct. 1984). 

Here, there was sufficient evidence for a jury to conclude 

that Safety entered into an oral agreement to provide E-K general safety services, beyond those strictly pertaining to workers’ compensation matters. The jury heard evidence that 

Safety prepared and submitted a Site Specific Safety Plan to 

the Illinois Department of Transportation designating Sicking 

as the site Safety Director, making him responsible for “dayto-day safety issues,” and committing to keeping traffic control in compliance with Occupational Safety and Health Administration (“OSHA”) mandates and the MUTCD. The Alex 

Parties also put forth evidence that Safety offered in-service 

training about safety hazards in its proposal for $1,400 a 

month, and that E-K paid that $1,400 a month. Sicking also

testified that if he saw an employee engaged in an unsafe 

practice, such as improper flagging procedures, he had the 

authority to stop that practice. And the jury heard that Sicking 

had committed to devising safety procedures and performing 

monthly audits to monitor compliance. All of this amounted 

to a legally sufficient evidentiary basis for a jury to conclude 

that the terms of the oral contract obligated Safety to ensure 

the flaggers executed their duties in accordance with appropriate safety standards, through training, creation of proper 

procedures, and monitoring.
10 Nos. 19-2414 & 19-2395

Safety raises two additional arguments, neither of which

succeeds. First, it argues that the Alex Parties failed to prove 

that its settlement with the plaintiffs released Safety, which 

the Alex Parties must do to prevail on their contribution 

claim. But Safety and the Alex Parties stipulated that the settlement released all claims against Safety, and Safety therefore cannot contest this point on appeal. Second, Safety argues 

that the district court erred in denying Safety’s motion for 

judgment as a matter of law because the Alex Parties alleged 

in their third-party complaint that Safety had failed to train 

and supervise its own employees and never amended their 

complaint to allege a failure to train E-K’s employees. Although Safety raised this argument before the district court, it 

did so belatedly: the argument appears only in Safety’s posttrial motion. Safety’s argument therefore came too late, and 

Safety has waived it. Anderson v. Flexel, Inc., 47 F.3d 243, 247 

(7th Cir. 1995) (“We have repeatedly stated that post-judgment motions cannot be used to raise arguments or legal theories that could have been and should have been brought before judgment.”).

B. Illinois Joint Tortfeasor Contribution Act

We next turn to whether the district court erred in concluding that, pursuant to the Contribution Act, the share of 

liability that the jury assigned to E-K should not be redistributed between the Alex Parties and Safety on a pro rata basis. 

The Contribution Act states that “[n]o tortfeasor is liable to 

make contribution beyond his own pro rata share of the common liability.” 740 ILCS 100/2(b). The Contribution Act continues, 

The pro rata share of each tortfeasor shall be determined in accordance with his relative 
Nos. 19-2414 & 19-2395 11

culpability. However, no person shall be required to contribute to one seeking contribution 

an amount greater than his pro rata share unless 

the obligation of one or more of the joint tortfeasors 

is uncollectable. In that event, the remaining tortfeasors shall share the unpaid portions of the 

uncollectable obligation in accordance with 

their pro rata liability. 

Id. § 3 (emphasis added). The district court deemed that E-K 

was not an uncollectable party, and thus did not reallocate EK’s share of liability between the Alex Parties and Safety. 

Thus, the key question from the Alex Parties’ appeal is the 

meaning of the exception italicized above.

The Alex Parties point to § 2(d) of the Contribution Act, 

which provides that a tortfeasor who settles with a claimant 

in good faith “is discharged from all liability for any contribution to any other tortfeasor.” Id. § 2(d). The plain language 

of this provision, the Alex Parties contend, makes a settling 

defendant—such as E-K—uncollectable in any future contribution action. “Discharged,” however, does not necessarily 

mean “uncollectable.” We are unable to find, at least, any instance where an Illinois court has said it does. 

Unfortunately, no precedent from the Illinois Supreme 

Court (nor any appellate court in Illinois) addresses whether 

the obligation of a settling party is uncollectable pursuant to 

the Contribution Act. In Illinois Tool Works, Inc. v. Indep. Mach. 

Corp., 802 N.E.2d 1228 (Ill. App. Ct. 2003), a case upon which 

the Alex Parties heavily rely, Illinois Tool Works settled with 

the underlying plaintiffs, and then pursued its contribution 

claim against the remaining unsettled defendant. Id. at 1229–

30. But that defendant asserted that any liability owed in 
12 Nos. 19-2414 & 19-2395

contribution was capped according to the amount of its statutory liability under the Workers’ Compensation Act, 820 

ILCS 305. Id. The statutory cap—not a party’s settlement, as 

here—rendered the defendant’s obligation uncollectable. Id. 

at 1231 (“[W]hile an employer may be subject to contribution, 

its liability is strictly limited to the amount of its worker’s 

compensation liability.”). Illinois Tool Works thus does not answer the question before us. 

The Alex Parties also cite to Ready v. United/Goedecke Servs., 

Inc., 905 N.E.2d 725 (Ill. 2008), but that case dealt with § 2-1117 

of the Illinois Code of Civil Procedure, an entirely different 

provision than the one at issue here. Id. at 728 (discussing 735 

ILCS 5/2-1117). Indeed, that provision does not even include 

the pivotal term “uncollectable.” And Coney v. J.L.G. Indus., 

Inc., 454 N.E.2d 197 (Ill. 1983), another case the Alex Parties

cite, interprets the relevant section of the Contribution Act, 

but only as it applies to “insolvent or immune defendant[s].” 

Id. at 206. That case does not define the meaning of the relevant exception, nor does it resolve whether the obligation of 

a settling party qualifies. 

Without much by way of caselaw on their side, the Alex 

Parties resort to public policy arguments, namely, that the district court’s ruling discourages third-party plaintiffs from settling with plaintiffs if they are “left holding the bag” for other 

settling defendants. Safety counters that it should not be on 

the hook for an amount to which the Alex Parties voluntarily 

agreed, as the Alex Parties chose to settle with the plaintiffs 

for an amount greaterthan their pro rata share. We agree with 

the Illinois Supreme Court, however, that “[d]eciding between such competing policy positions is, in our view, a task 

better left to the legislature.” Ready, 905 N.E.2d at 733. 
Nos. 19-2414 & 19-2395 13

Given the possible impact of the resolution of this controlling issue on Illinois citizens, we decline to decide it in the first 

instance and instead certify it to the Illinois Supreme Court. 

“‘Certification of a controlling issue of state law to the highest 

court of the state is one method of reducing the possibility of 

error’ in trying to predict what course the state supreme court 

might choose.” United States v. Glispie, 943 F.3d 358, 372 (7th 

Cir. 2019) (quoting Allstate Ins. Co. v. Menards, Inc., 285 F.3d 

630, 638 (7th Cir. 2002)). Illinois Supreme Court Rule 20 provides that, when it appears to “the United States Court of Appeals for the Seventh Circuit[] that there are involved in any

proceeding before it questions as to the law of this State, 

which may be determinative of the said cause, and there are 

no controlling precedents in the decisions of this court, [the 

Seventh Circuit] may certify such questions of the laws of this 

State to this court.” Ill. S. Ct. R. 20(a). In this case, the question 

of whether the obligation of a settling party is uncollectable 

will determine whether the Alex Parties may recover more 

than Safety’s pro rata share to account for E-K’s liability, and 

thus will control the outcome of this appeal. We can find no

Illinois cases resolving this issue. We therefore respectfully 

ask the Illinois Supreme Court to answer the question of 

whether the obligation of a settling party is uncollectable pursuant to the Illinois Joint Tortfeasor Contribution Act, 740 

ILCS 100/3 (2019). 

We invite the Justices of the Illinois Supreme Court to reformulate our question if they feel that course is appropriate. 

We do not intend anything in this certification to limit the 

scope of their inquiry. The Clerk of this Court will transmit 

the briefs and appendices in this case, together with this opinion, to the Illinois Supreme Court. On the request of that 
14 Nos. 19-2414 & 19-2395

Court, the Clerk will transmit all or any part of the record as 

that Court so desires. 

QUESTION CERTIFIED.