In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3825

EDWARD F. BRENNAN,

Plaintiff-Appellant,

v.

JAMES S. CONNORS,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 3:10-cv-00517—G. Patrick Murphy, Judge.

ARGUED MAY 12, 2011—DECIDED JUNE 30, 2011

Before BAUER, FLAUM, and EVANS, Circuit Judges.

EVANS, Circuit Judge. Jimmy Connors is known throughout the tennis world for many things: his fierce

two-handed backhand, his numerous Grand Slam singles

titles (eight, on three different surfaces), and his fiery

competitive spirit, to name just a few. In addition to

holding the men’s number one world ranking for 160

consecutive weeks (1974-77), he is known for his longevity,

performing well later in his career against players like
2 No. 10-3825

In the fourth round, Connors defeated a 24-year-old, Aaron 1

Krickstein, 3–6, 7–6, 1–6, 6–3, 7–6 in 4 hours and 41 minutes,

coming back from a 2–5 deficit in the final set. Connors also had

to rally back to win his quarterfinal match against Paul

Haarhuis, who had upset the number one seed, Boris Becker.

Connors was defeated by Jim Courier in straight sets in the

semifinals. Courier then lost in straight sets to Stefan Edberg in

the finals.

Björn Borg, John McEnroe, and Ivan Lendl and reaching

the semifinals of the 1991 U.S. Open at the age of 39. More 1

recently, Connors has been engaged in an equally longrunning battle off the court—or rather, in court—against

his former attorney, Edward Brennan.

Brennan first sued Connors in 1998 for allegedly failing

to transfer shares of a gaming company to Brennan pursuant to their representation agreement. The suit was settled

eleven years later in 2009. But after Brennan was accused

by his former law partner, Michael Constance, of cheating

him out of a portion of the shares, Brennan sued Connors

again, this time claiming that, if Brennan is found liable to

Constance, Connors must indemnify Brennan pursuant to

their settlement agreement. The district judge granted

Connors’ motion to dismiss, finding that the indemnity

provision in the settlement agreement failed by its terms

and that, in any event, Illinois public policy would not

permit indemnification under these facts. Brennan now

appeals.

In 1992, Brennan, then a partner in the Belleville, Illinois,

law firm Brennan, Cates & Constance, P.C., agreed to

represent Connors in, among other things, “all present and
No. 10-3825 3

The representation agreement also provided for legal services 2

for Connors’ mother, Gloria, and their company, Tennis Management, Inc.

The plaintiffs in that case were actually Brennan and his law 3

firm, and the defendants were Connors, Gloria, and Tennis

Management, Inc. Our case only concerns Brennan and Connors,

so we will ignore the other parties going forward.

future contracts.” In 1997, the firm dissolved. The follow- 2

ing year, Brennan sued Connors in Illinois state court,

alleging that Connors had unilaterally terminated the

representation agreement without fulfilling his obligation under the agreement to transfer shares of Argosy

Gaming Co. (an Alton, Illinois, casino operator later

acquired by Penn National Gaming, Inc.) to Brennan.3

Eleven years later, the suit was settled for a payment by

Connors of $10.5 million to Brennan. The settlement

agreement contained an indemnification clause that said:

[Brennan] and [Connors] warrant that they are the sole

owners of the rights asserted in the present lawsuit,

and that they have made no assignment of any of these

rights. [Brennan] further declare[s] that [he] will hold

harmless and indemnify [Connors] from any and all

costs, fees, liabilities and losses which might be incurred by [Connors] as a result of any outstanding

liens, or any other claims by any other party, including,

but not limited to, claims by former partners or shareholders or any current partner or shareholder regarding

the contract referenced in the Complaint or rights of reimbursements arising out of the allegations in [Brennan’s]
4 No. 10-3825

The procedural posture of these cases is as messy as the 4

allegations. Brennan was instructed to bring his indemnification

action as a third-party claim in the Constance case, which was

originally filed in state court but removed by Brennan to federal

court based on alleged diversity of citizenship. Brennan ignored

the instructions and filed a separate action that was then

consolidated with the Constance case. But the matters were

(continued...)

Complaint. [Connors] further declare[s] that [he] will

hold harmless and indemnify [Brennan] from any and

all costs, fees, including any and all liabilities and

losses which might be incurred by [Brennan] as a result

of any outstanding liens, or any other claims by any

other party, including, but not limited to, claims by

former partners or shareholders or any current partner

or shareholder, regarding the contract referenced in

the Complaint or rights of reimbursement arising out of

[Connors’] Counterclaims or Affirmative Defenses.

(Emphasis added.) The ceasefire didn’t last long. In 2010,

Constance sued Brennan, claiming that Brennan engaged

in fraud and breach of fiduciary duty by deliberately

refusing to accept the Argosy shares from Connors in 1997

before the firm dissolved and by concealing Connors’

attempted transfer from Constance. Constance further

alleged that he waived any interest he may have had in

the shares in reliance on Brennan’s misrepresentations and

omissions. Brennan, in turn, sued Connors, seeking

a declaration that the settlement agreement entitles

Brennan to indemnification from Connors if Brennan is

found liable to Constance.4
No. 10-3825 5

(...continued)

separated again when the district judge determined that

diversity did not exist between Brennan and Constance. So, the

Constance case is now back in state court where it started.

 The district judge found it unnecessary to treat Connors’ 5

motion as a motion for summary judgment because the settlement agreement was attached to Brennan’s complaint, and the

previous litigation between the parties was judicially noticeable.

The district judge subsequently ordered Brennan to show

cause why the case should not be dismissed because

indemnification agreements for intentional misconduct

violate Illinois public policy. Connors then filed a motion

to dismiss, or, in the alternative, for summary judgment,

along the same lines. The district judge granted the motion

to dismiss on three grounds: (1) the indemnity provision 5

created an “infinitely repeating loop” of liability and

therefore failed by its terms; (2) Illinois public policy

generally prohibits contractual indemnification for intentional misconduct; and (3) the indemnity provision was

not specific enough to exempt it from the general rule.

We begin our de novo review with the language of the

settlement agreement. The district judge found that the

indemnification provision failed because it locked the

parties in an infinitely repeating loop of liability: under

the third sentence, Connors must indemnify Brennan for

Constance’s claim, but then, under the second sentence,

Brennan must indemnify Connors for the costs resulting

from Connors indemnifying Brennan. Brennan argues

that this interpretation is “absurd” (a term used profusely
6 No. 10-3825

by both parties). He maintains that a claim by Connors for

indemnification from Brennan in the situation we just

described would be a claim regarding the indemnity

agreement itself, not “regarding the contract referenced in

the Complaint.” 

There is no support for this interpretation in the agreement. The indemnification language is the same for both

parties, so if “regarding the contract referenced in

the Complaint” is broad enough to cover Brennan’s claim

for indemnification from Connors, it would also cover

Connors’ subsequent claim for indemnification from

Brennan. 

Moreover, Connors has proposed a much more sensible

interpretation of the provision: the mutual indemnities in

the second and third sentences relate to the “warrant”

of sole ownership of the rights asserted in the first sentence. That is, the parties only agreed to indemnify

each other from claims that they could have assigned to

someone else. For example, if someone, let’s call him Steve

Epstein, made a demand on Brennan for legal services

under the representation agreement, Brennan would be

entitled to indemnification from Connors because Connors

warranted that he was the sole owner of those rights.

Likewise, if Epstein made a demand on Connors

for compensation under the representation agreement,

Connors would be entitled to indemnification from

Brennan.

Here, Constance is not suing Brennan based on an

assertion of rights under the representation agreement.

Rather, Constance is alleging that he relinquished any
No. 10-3825 7

rights he may have had under the agreement because of

Brennan’s wilful deceit. Thus, Constance’s claim is not

“regarding the contract,” and the indemnification provision does not apply. This interpretation is undoubtedly the

more logical, as it is hard—if not impossible—to imagine

why Connors would have agreed to indemnify Brennan for

deliberately cheating his law partner out of a firm asset.

Even if we credited Brennan’s interpretation, the indemnification provision would still fail. As the astute district

judge correctly noted, in Illinois, agreements to indemnify

against intentional misconduct generally are void as

against public policy and unenforceable. Davis v. Commonwealth Edison Co., 336 N.E.2d 881, 885 (Ill. 1975). There

are at least two exceptions: (1) Illinois law permits insurance agreements against intentional misconduct when

the beneficiary of the proceeds is not the wrongdoer,

see Dixon Distributing Co. v. Hanover Insurance Co., 641

N.E.2d 395, 401 (Ill. 1994); and (2) Illinois law permits

agreements to be construed as indemnifying a person

against his own negligence (and perhaps intentional

misconduct) when supported by clear and explicit language, see Westinghouse Electric Elevator Co. v. La Salle

Monroe Building Corp., 70 N.E.2d 604, 607 (Ill. 1946). 

In Chicago Housing Authority v. Federal Security, Inc.,

161 F.3d 485 (7th Cir. 1998), we applied these principles

to a case involving a shooting by two FSI security guards

Working under contract for CHA. The contract obligated FSI to indemnify CHA “against any liability or

expense . . . arising out of any losses, claims, damages or

injury resulting from any intentional acts or any negligent
8 No. 10-3825

acts or omissions of [FSI] . . . .” Id. at 487. We first cited the

Westinghouse rule and found that the language of

the agreement was broad enough and explicit enough

to permit CHA’s claim of indemnification from FSI

for CHA’s own negligence. We then considered CHA’s

claim of indemnification from FSI for CHA’s intentional

acts. There, we cited the Davis rule but found it inapplicable because we faced an entirely different factual setting—that is, enforcing the indemnification contract

against FSI would merely “requir[e] the primary wrongdoer to bear the financial burden of its actions.” Id. at

489. We therefore concluded that FSI was required

to indemnify CHA.

Brennan’s primary contention is not that either of the two

recognized exceptions to the Davis rule applies, or even

that the situation resembles the one in Chicago Housing

Authority (indeed, the Constance complaint attributes

no blame to Connors). Rather, he argues that indemnity

agreements for future conduct are distinct from indemnity agreements for past conduct and that the latter agreements, such as the one at issue here, are not against

public policy. See generally 8 Williston on Contracts

§ 19:18 (4th ed. 2010) (“A contract to indemnify against

the consequences of an act that has already been committed has also been generally upheld . . . .”). 

The problem is that this past-versus-future distinction

and categorization of indemnity agreements has no

support in Illinois law. In fact, the Illinois Supreme Court

has stated that “it serves no useful purpose to attempt

to analyze or reconcile the numerous cases interpreting
No. 10-3825 9

indemnity clauses since each individual case depends

upon the particular language used and the factual setting

of the case.” Buenz v. Frontline Transportation Co.,

882 N.E.2d 525, 530 (Ill. 2008) (internal citation omitted).

Accordingly, our best guess is that Illinois would reject

Brennan’s argument and apply the Davis rule.

In sum, the indemnity provision does not apply to this

matter, and even if it did, we would find it unenforceable

under Illinois public policy. Game, set, and match to

Connors. The judgment of the district court is AFFIRMED.

6-30-11