Horton v. City of Chi.
| Decision Date | 11 December 2018 |
| Docket Number | Case No. 13-cv-6865 |
| Parties | JARROD HORTON, as Independent Administrator of the Estate of MARLON HORTON, Deceased, Plaintiff, v. The CITY OF CHICAGO, a municipal corporation, CHICAGO POLICE OFFICER KENNETH F. WALKER, Star No. 9191, SHAQUILA R. MOORE, The CHICAGO HOUSING AUTHORITY, H.J. RUSSELL & COMPANY, and MAVERICK SECURITY, INC., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Maverick Security, Inc.'s motion [393] for summary judgment on Counts III through V of H.J. Russell Company's Crossclaim for Contribution, Express Indemnification and Implied Indemnification. For the reasons explained below, Maverick's motion [393] is granted in part and denied in part. Summary judgment is granted in favor of Maverick and against Russell on Russell's claims for express indemnification under the Subcontract (Count III) and on Russell's claim for implied indemnification (Count V). Summary judgment is denied as to Russell's claim for express indemnification under the Service Agreement (Count IV). This case is set for status on December 19, 2018 at 9:00 a.m.
The Court takes the relevant facts primarily from the parties' Local Rule 56.1 statements, [342], [357], and [376], and the attached exhibits. The following facts are undisputed except where a dispute is noted. The Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1367. Venue is proper under 28 U.S.C. § 1391(b).
This action arises out of the fatal shooting of Jarrod Horton ("Horton") on the morning of September 7, 2013 at a property located at 1815 W. Monroe in Chicago, Illinois (the "Property"). The Property, commonly known under the name of the Henry Horner Homes, is owned by the Defendant Chicago Housing Authority ("CHA"). As detailed below, CHA contracted with Defendant H.J. Russell & Company ("Russell") to manage the Property. Russell subcontracted with Defendant Maverick Security, Inc. ("Maverick") to provide security services at the Property. Two Maverick security guards were on duty at the time of the shooting: Defendant Kenneth Walker ("Walker") and Defendant Shaquila Moore ("Moore"). Walker fired the fatal shot.
This action was filed by Horton's brother and next of kin, Marlon Horton ("Plaintiff") against Walker, Moore, CHA, Russell, and Maverick. As is relevant here, Plaintiff's governing fourth amended complaint alleges a claim against both Russell and Maverick for negligent supervision (Count VIII). See [128] at 7. Plaintiff alleges that because Russell "voluntarily undertook to oversee the management of various functions at the Property, including security, it had a duty to third parties, including [Horton], to use reasonable care in the supervision of security guard services at the Property." Id. According to Plaintiff, Russell "knew or should have known that [Maverick] did not adequately supervise its security guards to ensure that the security guards [Maverick] hired to guard the Property did not pose a risk of harm to third parties" and "breached its duty of care to [Horton] by failing to adequate supervise the operations of [Maverick] to provide security guard services at the Property." Id. The fourth amended complaint also includes a claim against Russell, Maverick, CHA, and the City for respondeat superior (Count XII). See id. at 10. Plaintiff alleges that, under the doctrine of respondeat superior, Russell is liable as principal for the torts committed by its agents, Walker and Moore. Id.
Russell filed crossclaims against the CHA for contribution and against Maverick for contribution (Count II), express indemnification (Counts III and IV), and implied indemnification (Count V). Russell and CHA have settled Russell's contribution crossclaim. See [130]. Currently before the Court is Maverick's motion for summary judgment [393] on Russell's crossclaims. Since the motion was filed, Russell and Maverick have reported that they reached an agreement that obviates the need for a ruling on Russell's contribution crossclaim. Therefore, this opinion will address only Russell's crossclaims against Maverick for express and implied indemnification.
To resolve Maverick's motion, it is necessary to understand the contractual relationship between Maverick and Russell. As stated above, Russell subcontracted with Maverick to provide security services at the Property. In particular, on February 1, 2011, Maverick entered into a Subcontractor Agreement with Russell under which Maverick was to provide security services for locations including the Property, with a listed completion date of January 31, 2012 (the "Subcontract"). The Subcontract required Maverick to provide grounds security and two uniformed security officers at the Property. Although the parties agree that the Subcontract is between Maverick and Russell, see [357] at 3, ¶ 8, the text of the Subcontract provides that it is made "between Maverick Security Agency *** hereinafter called the 'Subcontractor' and Henry Horner/Westhaven Homes, whose principal office is located at, 504 Fair Street, Atlanta, Georgia 30313, hereinafter called the 'Contractor.'" [342-4] at 1 (emphasis added). The Subcontract is signed by Valerie Calloway as representative of Henry Horner/Westhaven Homes, and by Bobby Morris, the sole owner of Maverick Security. Id. at 5. The Subcontract contains an indemnification agreement, which states, in part:
Vendor agrees to indemnify the Contractor and hold the Contractor harmless from any damages, claims, demands or suits by any person or persons, arising out of or resulting from the execution of the work provided in this subcontract or occurring in connection therewith, excluding liability for negligence of the Contractor, except in connection with general supervision of work performed by Vendor. ***
Id. at 2, ¶ 7. Maverick does not dispute that the Subcontract contains this language, but maintains that it does not have any relevance to this lawsuit.
Around January 1, 2013, Russell and Maverick entered into a Letter of Agreement for Maverick to provide security services at the Property (the "Letter Agreement"). The Letter Agreement states that it will remain in effect until December 31, 2013. See [342-5] at 1. Brenda Parker was involved in the negotiation of the Letter Agreement on behalf of Russell. Parker testified that the purpose of the Letter Agreement was to extend the contract for Maverick's provision of security services, as security services did not go back out to bid per the CHA's directive. Parker further testified that the Letter Agreement was intended to document an extension of the original Subcontract. Maverick, citing generally to the Letter Agreement, disputes Parker's testimony about the purpose and intent of the Letter Agreement. Parker also testified that the Letter Agreement did not replace or supersede the Subcontract, but instead "went along with it." [357-2] at 4. Maverick disputes this and asserts that the Letter is a fully integrated document and is the only contract between Maverick and Russell governing their rights and responsibilities from January 1, 2013 through December 31, 2013. In particular, the Letter Agreement provides: [342-5] at 1. According to Morris' testimony, there were no other agreements or contracts that covered Maverick's work with Russell as of September 7, 2013. See [376-1] at 17.
On December 31, 2014—more than fifteen months after Horton was shot—Russell and Maverick entered into a Service Agreement for Maverick to provide patrol services for the Property (the "Service Agreement"). The Service Agreement contains a term of 12 months, renewing automatically, unless terminated by either party with 30 days' prior written notice. The Service Agreement is signed by Morris. The Service Agreement states, in part:
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