Gomez v. Bovis Lend Lease, Inc.
| Decision Date | 24 December 2013 |
| Docket Number | No. 1-13-0568,1-13-0568 |
| Citation | 2013 Ill. App. 130568,22 N.E.3d 1 |
| Parties | CARLOS GOMEZ, Plaintiff, v. BOVIS LEND LEASE, INC., JAMES McHUGH CONSTRUCTION COMPANY, and PERI FORMWORK SYSTEM, INC., Defendants (Bovis Lend Lease, Inc., and James McHugh Construction Company, Third-Party Plaintiffs-Appellants; Peri Formwork System, Inc., Third-Party Defendant-Appellee). |
| Court | United States Appellate Court of Illinois |
Counsel on Appeal Mark E. Christensen, Katherine A. Jones, and Nathan A. Hall, all of Christensen & Ehret, LLP, of Chicago, for appellants. Bartly J. Loethen and Trisha Cole, both of Synergy Law Group, of Chicago, and Donald E. English, Jr., and Timothy M. Hurley, both of Miles & Stockbridge P.C., of Baltimore, Maryland, for appellee.
Illinois Official Reports
Appellate Court
Held
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
In a negligence action against the construction manager and the contractor for a major construction project where plaintiff was injured when he fell through a plywood board that covered an "infill," the entry of summary judgment against defendants on their contribution claim against a subcontractor engaged in providing designs and support for the infill areas was affirmed on appeal, since the subcontract was ambiguous as to the subcontractor's duties, but the undisputed extrinsic evidence established that the subcontractor had no duty to provide support for the infill areas.
Decision Under Review
Appeal from the Circuit Court of Cook County, No. 09-L-003250; the Hon. Daniel T. Gillespie, Judge, presiding.
Counsel on Appeal
Mark E. Christensen, Katherine A. Jones, and Nathan A. Hall, all of Christensen & Ehret, LLP, of Chicago, for appellants.
Bartly J. Loethen and Trisha Cole, both of Synergy Law Group, of Chicago, and Donald E. English, Jr., and Timothy M. Hurley, both of Miles & Stockbridge P.C., of Baltimore, Maryland, for appellee.
Panel
¶ 1 A worker injured at the construction site for the 102-story Trump International Hotel and Tower brought a negligence claim against the construction manager and the contractor. They, in turn, brought a contribution claim, which was dismissed on a motion for summary judgment. Bovis Lend Lease, Inc., the construction manager, and James McHugh Construction Co., the contractor, now ask us to reverse the entry of summary judgment on their contribution claim against third-party defendant, PERI Formwork System, Inc. Bovis and McHugh assert that the contract between McHugh and PERI required PERI to provide designs and support for the infill areas, and a genuine issue of material fact exists as to whether PERI's failure to provide that support was a proximate cause of the worker being injured. We affirm the order of summary judgment on the basis that while the contract is ambiguous on the subject of PERI's contractual duties, the undisputed extrinsic evidence demonstrates that PERI had no duty to provide support for the infill areas.
drawings, or technical support for the infills. McHugh supplied and placed plywood boards over the infill areas.
¶ 4 On June 18, 2008, plaintiff Carlos Gomez, while working on the plumbing on the eighty-sixth floor, stepped on a plywood board that covered an infill. The plywood board broke, sending Gomez to the deck of the eighty-fifth floor.
¶ 5 McHugh and PERI had worked together on about 20 projects before Trump Tower, and PERI had not provided infill design services or technical support on any of them. After the worker's fall, Bovis conducted an investigation, which found nothing deficient in PERI's performance. Similarly, McHugh never indicated that PERI breached the contract or requested PERI to perform support work for the infill areas.
¶ 6 On March 17, 2009, Gomez sued Bovis and McHugh. Almost a year later, on February 3, 2010, Bovis and McHugh brought their third-party contribution claim against PERI. They alleged that the contract between McHugh and PERI imposed a duty on PERI to provide designs, drawings, and technical support for Trump Tower's infill areas and that PERI's failure to do so was a proximate cause of Gomez's accident.
¶ 7 PERI moved for summary judgment, arguing that nothing in the contract imposed on PERI the duty asserted by Bovis and McHugh and nothing in the previous dealings and course of performance between McHugh and PERI did either. Alternatively, PERI argued that even if it had a contractual duty to provide support for the infill areas, that duty was not a proximate cause of Gomez's fall. PERI presented expert testimony that McHugh used a cracked and defective plywood board to cover the infill areas. The expert further testified that McHugh's use of the defective board was the sole proximate cause for Gomez's accident.
¶ 8 Bovis and McHugh maintained that PERI's duty to provide support for the infill areas arose out of PERI's contractual obligation to assist with forming systems, because infills are a type of forming system. McHugh's vice president testified that none of PERI and McHugh's earlier projects matched this one in terms of sheer size. Accordingly, he drafted the contract to include "all the concrete forming systems to protect McHugh's interests." Bovis and McHugh also attached an affidavit of an expert witness to the affect that PERI's failure to provide additional support to the infill was a proximate cause of Gomez's fall. The court granted PERI's motion and later denied Bovis and McHugh's motion to reconsider.
¶ 10 Bovis and McHugh argue: (1) the contract unambiguously requires PERI to provide support to the infill areas; (2) even if the contract is ambiguous, the use of extrinsic evidence to interpret the contract creates genuine issues of material fact; and (3) the affidavit of their expert witness on proximate cause creates genuine issues of material fact.
¶ 11 We review a trial court's order granting summary judgment de novo. Williams v. Manchester, 228 Ill. 2d 404, 417 (2008). Summary judgment should be granted when "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2012). The court must construe all
pleadings, depositions, admissions, and affidavits against the movant and in favor of the opponent to determine whether a genuine issue of material fact precludes summary judgment. Williams, 228 Ill. 2d at 417.
¶ 13 Summary judgment is generally appropriate when deciding questions of contract interpretation as it involves a question of law. William Blair & Co. v. FI Liquidation Corp., 358 Ill. App. 3d 324, 334 (2005); Gallagher v. Lenart, 226 Ill. 2d 208, 219 (2007). The court must attempt to give effect to the parties' intentions when interpreting a contract. Gallagher, 226 Ill. 2d at 232. The best indication of the parties' intent is the plain meaning of the contract's language. Id. at 233. Contract language must be interpreted in light of the contract as a whole. Board of Trade v. Dow Jones & Co., 98 Ill. 2d 109, 122-23 (1983).
¶ 14 A contract is ambiguous if it is subject to more than one reasonable interpretation. William Blair & Co., 358 Ill. App. 3d at 334. If a contract is unambiguous on its face, extrinsic evidence may not be used to interpret it. Id. But, extrinsic evidence may be used to aid in interpreting an ambiguous contract. Id. The mere fact that the parties disagree over the contract's interpretation does not suffice to establish ambiguity. Intersport, Inc. v. National Collegiate Athletic Ass'n, 381 Ill. App. 3d 312, 319 (2008).
¶ 15 The contract between Bovis and PERI provides:
"PERI agrees to design, engineer, detail, fabricate, deliver and lease (or sell) to Contractor for upon the terms stated herein all the forming systems required to form the concrete for the project known as Trump International Hotel and Tower."
¶ 16 The following paragraph states:
"The systems shall include, but not be limited to the following: Slab forming system for all supported floors, all forms required for the helix walls and slabs; CPP perimeter protection system, perimeter ACR R column forming system and all forms for every other cast-in-place concrete element on the project except for the round columns and core."
¶ 17 Bovis and McHugh argue that the language in these clauses is unambiguous and requires PERI to design, draw, and provide support for the infill areas. They assert that infills are a type of forming system, which thereby obligates PERI to provide support for all forming systems. But, the contract makes no reference to infills as a forming system. Bovis and McHugh respond that an infill is both a "slab-forming system" and a "cast-in-place concrete element," which are specifically listed. Bovis and McHugh fail, however, to explain the connection between a "slab-forming system" and "cast-in-place concrete element" and infill areas for the specific purpose of imposing a duty on PERI for support of infill areas.
¶ 18 Bovis and McHugh also argue that other clauses in the contract imply a duty on PERI to provide support for infills, including:
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