Horton v. City of Chi., Case No. 13-cv-6865

CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
PartiesJARROD 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.
Docket NumberCase No. 13-cv-6865
Decision Date11 December 2018

JARROD HORTON, as Independent Administrator of the
Estate of MARLON HORTON, Deceased, Plaintiff,
The CITY OF CHICAGO, a municipal corporation, CHICAGO POLICE

Case No. 13-cv-6865


December 11, 2018

Judge Robert M. Dow, Jr.


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.

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I. Background

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

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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

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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: "This agreement, including all attachments, constitutes the entire agreement among [Russell and Maverick]. No waiver, changes, or modifications in the Agreement [are] valid or binding unless agreed to in writing and signed by all parties." [342-5] at 1. According to Morris' testimony, there

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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:


WHEREAS, Contractor [Maverick] has continuously provided the Services to the Property since February 1, 2011; and

WHEREAS, Property Manager [Russell] and Contractor are willing to enter into this Agreement to provide such Services and specifically acknowledge and reaffirm that the terms contained herein, to include the indemnification provisions referenced in Article 9 and insurance requirements referenced in Article 8 herein are and were intended to apply to and govern all periods that Contractor has provided Services to the Property, to include all prior periods that Contractor has provided Services;

NOW, THEREFORE, for an in consideration of the sum of TEN and NO/100 DOLLARS ($10.00), in hand paid each to the other, the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto do hereby agree as follows:


9. Contractor shall be financially responsible for all injury or damage of any kind to persons or property, regardless of who may be the owner of the property, resulting from or in relation to the performance of the services contemplated by this Agreement. In addition to the liability imposed upon Contractor on account of personal injury (including, without limitation, death or property damage suffered through Contractor's negligence, which liability is not impaired or otherwise effected hereunder[)], Contractor assumes the obligation to protect, defend, save and hold harmless Property Manager and Owner [CHA] and to indemnify Property Manager and Owner from every expense, liability or payment arising out of or through injury (including, without limitation, death) to any person or persons or damage to property (regardless of who may be the owner of the property) located in any place in which this

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