{ "id": 2533732, "name": "WEST SUBURBAN MASS TRANSIT DISTRICT et al., Plaintiffs-Appellees, v. CONSOLIDATED RAIL CORPORATION, Defendant-Appellant", "name_abbreviation": "West Suburban Mass Transit District v. Consolidated Rail Corp.", "decision_date": "1991-03-07", "docket_number": "No. 1-89-2916", "first_page": "484", "last_page": "492", "citations": [ { "type": "official", "cite": "210 Ill. App. 3d 484" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "521 N.E.2d 1245", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "167 Ill. App. 3d 772", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3471455 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/167/0772-01" ] }, { "cite": "561 N.E.2d 116", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "203 Ill. App. 3d 724", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2581971 ], "pin_cites": [ { "page": "729" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/203/0724-01" ] }, { "cite": "559 N.E.2d 20", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "201 Ill. App. 3d 341", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2594960 ], "year": 1990, "pin_cites": [ { "page": "346-48" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/201/0341-01" ] }, { "cite": "456 N.E.2d 958", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "119 Ill. App. 3d 601", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3628825 ], "pin_cites": [ { "page": "605" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/119/0601-01" ] }, { "cite": "502 N.E.2d 1295", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "151 Ill. App. 3d 632", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3540861 ], "year": 1989, "pin_cites": [ { "page": "636" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/151/0632-01" ] }, { "cite": "312 N.E.2d 605", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "57 Ill. 2d 398", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5406059 ], "opinion_index": 0, "case_paths": [ "/ill-2d/57/0398-01" ] }, { "cite": "489 N.E.2d 867", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "111 Ill. 2d 229", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3166688 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-2d/111/0229-01" ] }, { "cite": "510 N.E.2d 409", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "156 Ill. App. 3d 154", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3504673 ], "pin_cites": [ { "page": "164-65" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/156/0154-01" ] }, { "cite": "533 N.E.2d 941", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1986, "opinion_index": 0 }, { "cite": "178 Ill. App. 3d 597", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2433120 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "604" }, { "page": "604" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/178/0597-01" ] } ], "analysis": { "cardinality": 640, "char_count": 18359, "ocr_confidence": 0.724, "pagerank": { "raw": 1.0121204946312913e-07, "percentile": 0.542447648492248 }, "sha256": "782e64ba8dd6493b6d46a6c72e96aad9835b3de89178262b45c3fee5a2d2bf46", "simhash": "1:b8469cdf569b3fc6", "word_count": 2774 }, "last_updated": "2023-07-14T22:48:57.765044+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "WEST SUBURBAN MASS TRANSIT DISTRICT et al., Plaintiffs-Appellees, v. CONSOLIDATED RAIL CORPORATION, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McMORROW\ndelivered the opinion of the court:\nPlaintiff Burlington Northern Railroad Company (Burlington) filed suit against defendant Consolidated Rail Corporation (Consolidated) for damages that occurred when Burlington\u2019s train derailed. Burlington\u2019s complaint alleged in pertinent part that the parties had entered into an indemnity agreement that required Consolidated to assume liability for the accident. Consolidated filed an answer to the complaint in which Consolidated admitted the occurrence of the derailment as well as the existence and terms of the indemnity agreement, but denied liability for the loss pursuant to the indemnity agreement.\nBurlington filed a motion for partial summary judgment, contending that the undisputed facts and the clear and unambiguous language of the indemnity agreement obligated Consolidated to indemnify Burlington for the damages arising from the accident. Consolidated responded that summary judgment was improper, because the indemnity agreement was ambiguous with respect to its coverage for the derailment. Consolidated also filed, with leave of court, an amended answer to Burlington\u2019s allegations regarding the indemnity agreement. In this amended answer, Consolidated raised the affirmative defense that Burlington\u2019s willful and wanton acts contributed to the accident. Burlington did not file a reply to the allegations made in Consolidated\u2019s affirmative defense, nor did Burlington file a motion to strike Consolidated\u2019s affirmative defense. In addition, Burlington did not amend its summary judgment motion in order to present evidentiary matter with respect to these allegations.\nFollowing a hearing, the trial court determined that the indemnity agreement between the parties clearly and unambiguously provided for Consolidated\u2019s liability for the accident. Based upon this determination, the trial court entered summary judgment in Burlington\u2019s favor with respect to Consolidated\u2019s liability for the derailment. Consolidated appeals.\nWe conclude that the entry of summary judgment was error. The record shows that Burlington presented no proof in support of its summary judgment motion to contradict the allegations of Consolidated\u2019s affirmative defense that Burlington\u2019s willful and wanton conduct contributed to the derailment. Because Burlington presented no evidence or argument on the issue of willful and wanton conduct in its summary judgment motion, there remained disputed issues of material fact regarding Consolidated\u2019s affirmative defense. Under these circumstances, summary judgment should not have been granted in Burlington\u2019s favor with respect to Consolidated\u2019s liability for the accident pursuant to the indemnity agreement. In addition, we determine that the parties\u2019 indemnity agreement was ambiguous with respect to its coverage for the derailment that occurred in the instant cause. Accordingly, we reverse and remand.\nBurlington\u2019s suit against Consolidated sought damages relating to the derailment of a Burlington commuter train that took place on April 19, 1983, while the train was running on track owned and operated by Burlington. Burlington alleged in its pleading that the derailment occurred when the commuter train struck a boxcar door that was lying on the track over which its commuter train was operating. Burlington alleged that the boxcar door fell from a Consolidated train while the Consolidated train was running on Burlington track shortly before Burlington\u2019s train accident occurred. Burlington sought damages from Consolidated based on principles of negligence (count I) and based on an indemnity agreement between Burlington and Consolidated that was executed on June 11,1981 (count II).\nIn its answer to count II of Burlington\u2019s complaint, Consolidated admitted that a Burlington train had derailed following a collision with a door that had fallen from a Consolidated train. Consolidated\u2019s answer also admitted to the existence and terms of the indemnity agreement between the parties. However, Consolidated denied liability for the derailment because of the indemnity agreement.\nBurlington moved for partial summary judgment with respect to Consolidated\u2019s liability on count II of the complaint, arguing that under the clear and unambiguous terms of the parties\u2019 indemnity agreement, Consolidated was liable to Burlington for the damages caused by the derailment. Consolidated filed a response to the summary judgment motion, disputing Burlington\u2019s interpretation of the indemnity agreement.\nThereafter, Consolidated was granted leave to file an amended answer to Burlington\u2019s complaint. In this amended answer, Consolidated raised an affirmative defense to count II regarding the indemnity agreement. Specifically, Consolidated alleged that Burlington engaged in certain willful and wanton acts that proximately caused the door to become disengaged from the Consolidated boxcar while it was located on Burlington\u2019s track. Burlington did not file a reply to the allegations made in Consolidated\u2019s affirmative defense, nor did Burlington file a motion to strike Consolidated\u2019s affirmative defense. Burlington also did not amend its summary judgment motion to present evidence regarding these additional allegations.\nFollowing Consolidated\u2019s amended answer, the trial court allowed Burlington\u2019s partial summary judgment motion on the ground that the indemnity agreement, by its clear and unambiguous terms, obligated Consolidated to indemnify Burlington for the losses associated with the derailment. Thereafter, the parties stipulated to the amount of damages resulting from the accident, and the trial court found no just reason to delay enforcement of or appeal from its ruling with respect to count II of the complaint. Consolidated\u2019s appeal followed.\nConsolidated argues that the trial court\u2019s summary judgment order should be reversed, because there remain issues of fact regarding its affirmative defense against Burlington. In this affirmative defense, Consolidated alleged that Burlington\u2019s willful and wanton acts proximately caused the boxcar door to fall from Consolidated\u2019s train before the derailment occurred. These allegations, if proved, would defeat Burlington\u2019s right to indemnity under the parties\u2019 agreement. Under Illinois law, exculpatory agreements governing willful and wanton conduct are invalid. See, e.g., Falkner v. Hinckley Parachute Center, Inc. (1989), 178 Ill. App. 3d 597, 604, 533 N.E.2d 941; Zimmerman v. Northfield Real Estate, Inc. (1986), 156 Ill. App. 3d 154, 164-65, 510 N.E.2d 409.\nA party who files a summary judgment motion must show that, based on the documents of record, there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. (Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867; Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 312 N.E.2d 605; Ill. Rev. Stat. 1987, ch. 110, par. 2-1005.) The summary judgment movant is obligated to demonstrate the absence of factual dispute with respect to all issues raised by the pleadings, including the absence of factual dispute regarding an affirmative defense raised by the party\u2019s opponent. See Komater v. Kenton Court Associates (1986), 151 Ill. App. 3d 632, 636, 502 N.E.2d 1295; Falkner v. Hinckley Parachute Center, Inc. (1989), 178 Ill. App. 3d 597, 604, 533 N.E.2d 941; Motz v. Central National Bank (1983), 119 Ill. App. 3d 601, 605, 456 N.E.2d 958.\nIn light of this precedent, once Consolidated\u2019s affirmative defense was filed, it was incumbent upon Burlington to file a pleading attacking the affirmative defense, or to file an amended summary judgment motion demonstrating that there were no genuine issues of material fact regarding Consolidated\u2019s affirmative defense that Burlington\u2019s willful and wanton conduct contributed to the derailment. Burlington did not file a motion to dismiss the affirmative defense or any other pleading challenging the affirmative defense. Burlington\u2019s motion for summary judgment did not controvert the affirmative defense. Contrary to Burlington\u2019s argument, Consolidated had no duty to present evidence to support its affirmative defense at the time Consolidated filed its amended answer or at the hearing on the summary judgment motion. Instead, having pleaded the issue in its amended answer, Consolidated had a duty to present evidence to support its affirmative defense only if Burlington disputed the allegations made in Consolidated\u2019s affirmative defense. The trial court\u2019s allowance of Burlington\u2019s summary judgment motion deprived Consolidated of an opportunity to present evidence in support of the factual allegations made in Consolidated\u2019s affirmative defense. Consequently, we reverse the entry of summary judgment in Burlington\u2019s favor and remand the matter for further proceedings consistent herewith.\nWe also conclude that the parties\u2019 indemnity agreement was not clear and unambiguous with respect to its coverage for the derailment at issue in the instant cause. The indemnity agreement provided in pertinent part as follows:\n\u201cIt is hereby agreed *** that if either party hereto operates its trains, engines, cars or other rolling stock over and upon the trackage of the other party hereto for interchange and/or other purposes *** then the provisions of this Agreement shall apply to said operation and use.\n1. Each party hereto from time to time operating its trains, engines, cars or other rolling stock over and upon the trackage of the other party shall be responsible, without regard to negligence, for the consequences of any wreck, derailment, or other accident involving a train, engine, car or other rolling stock being moved by or involving an employee of such party which is caused by the condition of track or roadbed or by the condition of equipment appurtenant thereto, or by the condition of engines, cars or other rolling stock being moved by such party.\u201d\nParagraphs 2 through 5 of the indemnity agreement provided for the allocation of liability only under circumstances other than those governed by paragraph 1. Paragraph 2 stated that, except as provided in paragraph 1, the negligent party was liable for \u201cthe consequences of any wreck, derailment or other accident resulting solely from the negligence of one of the parties hereto, or resulting solely from the negligence of one of the parties hereto concurring with the negligence of a person or corporation not a party to this Agreement.\u201d Paragraph 3 provided for the apportionment of liability, except as set forth in paragraph 1, for damage to persons and property when both parties were jointly and concurrently negligent for \u201cthe consequences of any wreck, derailment or other accident.\u201d Paragraphs 4 and 5 governed the parties\u2019 respective liability, except as stated in paragraph 1, when either one party\u2019s train, or both parties\u2019 trains, were \u201cinvolved in any wreck, derailment or other accident\u201d resulting from \u201cthe sole negligence of a person or corporation not a party to this Agreement\u201d (paragraph 4), or resulting from a \u201ccause which cannot be determined\u201d (paragraph 5).\nBurlington argues that the meaning of paragraph 1 of the indemnity agreement is clear and unambiguous. According to Burlington, this paragraph recognizes a party\u2019s liability, without regard to that party\u2019s fault, for the consequences of any accident caused by a condition on the track of either party, whenever that track condition was created by that party\u2019s use of the track. Consolidated also contends that paragraph 1 is clear and unambiguous. According to Consolidated, paragraph 1 recognizes a party\u2019s liability for the consequences of any accident causing damage to its own property, when (a) the accident occurs while on the other party\u2019s track, and (b) the accident was caused by a condition on the track. In the alternative, Consolidated maintains that the agreement is ambiguous and requires extrinsic evidence for its proper construction.\nA contract is to be interpreted according to its plain and ordinary meaning in order to give effect to the parties\u2019 intent, and the construction of the contract is a question of law to be resolved by the court. Where the contract\u2019s meaning is clear and unambiguous on its face, resort to extrinsic evidence to interpret the contract is unnecessary. (Lucas v. Beaton (1990), 201 Ill. App. 3d 341, 346-48, 559 N.E.2d 20.) A contract is ambiguous when it may be reasonably construed to have more than one meaning. Beard v. Mt. Carroll Mutual Fire Insurance Co. (1990), 203 Ill. App. 3d 724, 729, 561 N.E.2d 116.\nWe conclude that the indemnity agreement is not clear or unambiguous with respect to its coverage of the instant cause. Paragraph 1 appears to be applicable, without regard to fault, whenever one of the parties \u201coperate[s] its trains *** over and upon the track-age of the other party,\u201d there is an accident \u201cinvolving a train *** being moved by *** such party,\u201d and the accident \u201cis caused by the condition of the track.\u201d However, it is unclear what is intended in paragraph 1 with respect to its applicability to an accident \u201cinvolving\u201d a party\u2019s train. Paragraphs 2 through 5 apply to all accidents that are not governed by paragraph 1. However, these paragraphs contain no language that clarifies the word \u201cinvolving\u201d in paragraph 1. Paragraphs 2 through 5 also do not contain an explicit restriction regarding the track upon which the train was passing at the time of the accident.\nIn view of the foregoing, paragraph 1 is susceptible of more than one interpretation in its applicability to the instant cause. Paragraph 1 governs liability when there is an accident \u201cinvolving a train\u201d and the accident \u201cis caused by the condition of the track.\u201d In its narrowest interpretation, Consolidated\u2019s train may not have been \u201cinvolved\u201d in the derailment of Burlington\u2019s commuter train. Consolidated\u2019s train did not derail or collide with Burlington\u2019s train, nor was Consolidated\u2019s train damaged during the accident. However, in a broader interpretation, Consolidated\u2019s train may have been \u201cinvolved\u201d in the derailment of Burlington\u2019s commuter train. As alleged in Burlington\u2019s complaint, it was a door from Consolidated\u2019s boxcar that fell on the track and was struck by Burlington\u2019s train, thereby causing the derailment. Because of this ambiguity with respect to whether Consolidated\u2019s train was \u201cinvolved\u201d in the derailment under paragraph 1, we conclude that extrinsic evidence is necessary to interpret the application of the parties\u2019 indemnity agreement to the case at bar. As a result, we determine that summary judgment was improperly entered in Burlington\u2019s favor with respect to count II of its complaint, in which Burlington alleged that Consolidated was obligated to indemnify Burlington pursuant to the terms of the parties\u2019 indemnity agreement.\nBurlington contends that Consolidated made arguments during the trial court\u2019s hearing on its partial summary judgment motion that amounted to judicial admissions by Consolidated that it was liable for the derailment of Burlington\u2019s commuter train. Specifically, Burlington points to statements made by counsel for Consolidated that paragraph 1 was intended to render the \u201cvisiting railroad\u201d liable when that party \u201cbringfs] in cars *** which are defective.\u201d Burlington submits that by these statements, Consolidated judicially admitted that it owed Burlington indemnification for damages due to derailments of Burlington\u2019s trains, where those derailments were caused by the condition of cars and trains operated by Consolidated on Burlington\u2019s tracks.\nTo support its position that these statements amounted to binding judicial admissions, Burlington relies on Lowe v. Kang (1988), 167 Ill. App. 3d 772, 521 N.E.2d 1245. Lowe was a personal injury case wherein the parties\u2019 comparative negligence was sharply contested at trial. In closing argument to the jury, the defendant\u2019s attorney made statements in which he admitted his client had been partially responsible for the plaintiff\u2019s injuries. Upon review, the court found that these statements were binding judicial admissions of the defendant\u2019s partial liability for the plaintiff\u2019s injuries.\nThe decision in Lowe is distinguishable from the case at bar. Consolidated\u2019s attorney acknowledged to the trial court that paragraph 1 could be interpreted to render the \u201cvisiting railroad\u201d liable when that party \u201cbring[s] in cars *** which are defective.\u201d However, Consolidated\u2019s attorney did not admit that Consolidated had brought defective cars onto Burlington\u2019s tracks. Instead, Consolidated\u2019s attorney argued that its cars had not been defective, but had been damaged by the willful and wanton acts of Burlington. On this record, we cannot say that Consolidated\u2019s arguments to the trial court constituted binding judicial admissions that Consolidated was liable for the derailment of Burlington\u2019s commuter train.\nBurlington also contends that Consolidated waived its argument that paragraph 1 applies only when one party is operating equipment on the tracks of the other party, because Consolidated did not present this argument to the trial court. Even assuming arguendo that this claim is waived on appeal, we cannot accept Burlington\u2019s position that paragraph 1 clearly and unambiguously applies to the facts as alleged by the parties in the instant cause.\nIn light of our disposition, we need not and do not address Consolidated\u2019s argument that because the indemnity agreement was allegedly drafted by Burlington, the agreement should be strictly construed against Burlington in the case at bar. The parties have stipulated to the amount of damages and other matters relating to damages.\nFor the reasons stated, the judgment of the circuit court of Cook County is reversed on the issue of liability and the cause remanded for further proceedings consistent herewith.\nReversed and remanded.\nJIGANTI, P.J., and JOHNSON, J., concur.", "type": "majority", "author": "JUSTICE McMORROW" } ], "attorneys": [ "Lord, Bissell & Brook, of Chicago (Alvin E. Domash, Hugh C. Griffin, and Paul J. Peralta, of counsel), for appellant.", "John Newell and Kenneth J. Wysoglad & Associates, both of Chicago (Michael L. Sazdanoff and Kenneth J. Wysoglad, of counsel), for appellees." ], "corrections": "", "head_matter": "WEST SUBURBAN MASS TRANSIT DISTRICT et al., Plaintiffs-Appellees, v. CONSOLIDATED RAIL CORPORATION, Defendant-Appellant.\nFirst District (4th Division)\nNo. 1 \u2014 89\u20142916\nOpinion filed March 7, 1991.\nLord, Bissell & Brook, of Chicago (Alvin E. Domash, Hugh C. Griffin, and Paul J. Peralta, of counsel), for appellant.\nJohn Newell and Kenneth J. Wysoglad & Associates, both of Chicago (Michael L. Sazdanoff and Kenneth J. Wysoglad, of counsel), for appellees." }, "file_name": "0484-01", "first_page_order": 506, "last_page_order": 514 }