                             2018 IL App (2d) 160989

                                  No. 2-16-0989

                          Opinion filed February 13, 2018 

______________________________________________________________________________

                                            IN THE


                             APPELLATE COURT OF ILLINOIS


                              SECOND DISTRICT

______________________________________________________________________________

RITACCA LASER CENTER,                     ) Appeal from the Circuit Court
                                          ) of Lake County.
      Plaintiff-Appellant,                )
                                          )
v.                                        ) No. 12-L-655
                                          )
LOUIS BRYDGES,                            )
GEORGE RISEBOROUGH,                       )
BRYDGES RISEBOROUGH, and                  )
O’HARE ENGINEERING,                       )
                                          ) Honorable
      Defendants                          ) Margaret J. Mullen and
                                          ) Michael J. Fusz,
(O’Hare Engineering, Defendant-Appellee). ) Judges, Presiding.
______________________________________________________________________________

       JUSTICE McLAREN delivered the judgment of the court, with opinion.
       Justices Jorgensen and Spence concurred in the judgment and opinion.

                                           OPINION

¶1     Plaintiff, Ritacca Laser Center, appeals the trial court’s summary judgment in favor of

defendant O’Hare Engineering in this case involving a fire that occurred after defendant installed

HVAC systems in plaintiff’s office building.      Plaintiff argues that the trial court erred by

granting summary judgment in favor of defendant and striking affidavits attached to plaintiff’s

response to defendant’s motion for summary judgment. We affirm.

¶2                                     I. BACKGROUND
2018 IL App (2d) 160989


¶3     On October 7, 2013, plaintiff, a medical service provider, filed a two-count third

amended complaint (complaint). Count I asserted legal malpractice against plaintiff’s lawyers;

that claim was dismissed and is not part of this appeal. Count II, pertinent to this appeal,

asserted negligence against defendant as follows. In June 2008, plaintiff entered into a contract

for Ryan, Inc. (Ryan), to construct improvements to remodel plaintiff’s basement into a surgical

suite. Ryan hired defendant to design, furnish, and install HVAC systems in plaintiff’s office

building. In December 2008, a few days after the grand opening of plaintiff’s remodeled office

building, a fire broke out, and an investigation suggested that defendant installed an air filter “too

close” to an electric heating coil. Plaintiff alleged that, due to defendant’s negligence, plaintiff

was unable to work out of its office building for three years, which resulted in lost business

income and property damage. Plaintiff tendered its claim to its insurance carrier, Erie Insurance

(Erie), and plaintiff settled with Erie, but the settlement did not cover all of plaintiff’s lost

business income. Plaintiff attached to its complaint the construction contract between it and

Ryan, which, in article 14, contained the following relevant provisions:

               “(b) Builders Risk Insurance.

                       (i) Owner [(plaintiff)] shall purchase and maintain, until the date of

               Substantial Completion, ‘all-risk’ builder’s risk insurance covering the Project

               risk associated with such deductible [sic] shall be borne entirely by Owner. ***

                                                    ***

               (c) Waiver of Subrogation.       Owner [(plaintiff)] and Design-Builder [(Ryan)]

       waive all rights against each other, and against their respective agents, employees and

       subcontractors, for damages caused by perils covered by the insurance to be maintained

       pursuant to Paragraph 14(b) hereof, except such rights as they may have to the proceeds

       of such insurance.      If, during the Project construction period, the Owner insures

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2018 IL App (2d) 160989


       properties, real or personal or both, at or adjacent to the site by property insurance under

       policies separate from those insuring the Project, or if after final payment property

       insurance is to be provided on the completed Project through a policy or policies other

       than those insuring the Project during the construction period, the Owner shall waive all

       rights against the Design-Builder, and against its respective agents, employees and

       subcontractors, for damages caused by perils covered by this separate property

       insurance.”

¶4     On October 9, 2015, defendant moved for summary judgment, asserting additional facts

and arguing the following. When plaintiff tendered its claim to Erie, it acknowledged that its

policy covered both property damage and related business-interruption losses caused by the fire.

When Erie refused to pay the amount of loss plaintiff claimed, plaintiff sued Erie in August

2009. In the course of litigation, plaintiff and Erie produced widely disparate calculations of

plaintiff’s business-interruption damages. Plaintiff claimed that its business-interruption losses

were $6.3 million whereas Erie’s expert opined that plaintiff’s business-interruption losses were

only $1.5 million. By June 2011, plaintiff and Erie had agreed on the amount of the property

losses but not the business-interruption losses. After mediation on the matter, plaintiff agreed to

release all of its business-interruption claims against Erie for $3.5 million. The total settlement

amount for property damage and business interruption was over $4 million. After the settlement,

plaintiff learned that Erie did not intend to bring a subrogation action against defendant, because

Erie’s legal counsel opined that plaintiff’s fire-related property damage and business-interruption

losses were caused by a “peril” covered by the Erie policy and, therefore, subrogation was barred

by the waiver in the construction contract. Defendant argued that plaintiff’s claim could not

proceed, because it waived any claims against defendant in the construction contract and

plaintiff’s lawsuit against defendant was frivolous.

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2018 IL App (2d) 160989


¶5      In support of its motion for summary judgment, defendant attached the following

documents: (1) plaintiff’s complaint against defendant, along with the attached construction

contract, and (2) plaintiff’s complaint against Erie. In the latter, plaintiff alleged that its policy

provided it with, inter alia, “insurance coverage for what is commonly referred to as business

interruption ***. The Policy was in full force and effect at all time material hereto [namely] The

Fire Loss ***.” Plaintiff also alleged that “Erie promised to pay income protection loss for the

shorter of 1. The time period required to build, repair, or replace such part of the building or

business personal property as has been damaged or destroyed as a result of a peril; or 2. Twelve

(12) consecutive months from the date of the loss.” Also attached to defendant’s motion were

the following: (1) a letter from an Erie representative indicating that, on the date of the fire, as

indicated by the enclosed declarations, plaintiff was covered for “Business Personal Property

[and] Income,” (2) the settlement agreement between plaintiff and Erie, (3) Erie’s counsel’s

letter stating that “the subrogation waiver cannot be overcome,” and (4) Erie’s declaration of

coverage indicating that plaintiff was covered for personal property damage and income loss.

¶6      In opposition to defendant’s motion for summary judgment, plaintiff asserted that the

waiver of subrogation contained in paragraph 14(c) of the construction contract applied only to

“damages caused by perils covered by insurance required under [paragraph] 14(b). *** Further,

[a]rticle 14[b] discussed builder’s Risk Insurance, stating that [plaintiff] shall purchase this

insurance, [and it clearly applied] only to property damage. *** In fact, [plaintiff] did not

purchase the Builders Risk Insurance but instead purchased a commercial package policy which

included income loss, not required under Article 14.” The construction contract could “be

construed as ambiguous because [it] does not specify that income loss is part of the builders[’]

risk. *** Therefore[,] *** the Court should construe the terms in the light most favorable to the

insured, [plaintiff].”

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2018 IL App (2d) 160989


¶7     In support of plaintiff’s response to defendant’s motion for summary judgment, plaintiff

attached the following: (1) the construction contract; (2) Erie’s insurance documents; (3) the

affidavit of Eric Routman, an attorney, who opined, in pertinent part, that paragraph 14(b) of the

construction contract required plaintiff to obtain property insurance, commonly referred to as

builders’ risk insurance, and that the waiver of subrogation in paragraph 14(c) was “limited to

damages caused by perils covered by [insurance] required by [paragraph] 14(b)”; (4) the

affidavit of Brian Paquette, plaintiff’s insurance broker, who stated that he did not issue a

builders’ risk policy to plaintiff; and (5) the affidavit of Daniel Ritacca, M.D., plaintiff’s

principal, who stated that he did not obtain a builders’ risk policy but, instead, purchased a

commercial package policy that included income-loss insurance, and income loss is not part of a

builders’ risk policy.

¶8     Defendant moved to strike the three affidavits attached to plaintiff’s response on the basis

that the affidavits were insufficient under Illinois Supreme Court Rule 191 (eff. Jan. 4, 2013).

¶9     On January 26, 2016, after a hearing on the matter, the trial court granted defendant’s

motion to strike plaintiff’s affidavits and granted plaintiff leave to file affidavits compliant with

Rule 191 no later than seven days prior to the hearing on defendant’s motion for summary

judgment. Plaintiff failed to file amended affidavits.

¶ 10   On February 9, 2016, after hearing argument on defendant’s motion for summary

judgment, the trial court granted defendant’s motion and granted defendant leave to file a motion

seeking to recover fees and costs from plaintiff by March 1, 2016. On March 2, 2016, defendant

filed a motion for sanctions against plaintiff pursuant to Illinois Supreme Court Rule 137 (eff.

July 1, 2013). On March 4, 2016, plaintiff filed a notice of appeal. However, because plaintiff’s

notice of appeal was premature due to defendant’s pending motion for sanctions, plaintiff

withdrew its appeal. On November 3, 2016, after hearing arguments by counsel, the trial court

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2018 IL App (2d) 160989


denied defendant’s motion for sanctions. On November 22, 2016, plaintiff filed its notice of

appeal.

¶ 11                                      II. ANALYSIS

¶ 12                                   A. Summary Judgment

¶ 13      Plaintiff argues that the trial court erred by granting summary judgment in defendant’s

favor, because it improperly interpreted the waiver of subrogation contained in the construction

agreement.

¶ 14      Summary judgment is appropriate when there are no genuine issues of material fact and

the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2014).

The trial court may grant summary judgment after considering “the pleadings, depositions,

admissions, exhibits, and affidavits on file in the case” and construing that evidence in favor of

the nonmoving party. Purtill v. Hess, 111 Ill. 2d 229, 240 (1986). Summary judgment aids in

the expeditious disposition of a lawsuit but should be allowed only “when the right of the

moving party is clear and free from doubt.” Id. We review de novo a trial court’s decision to

grant summary judgment. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d

90, 102 (1992).

¶ 15      The interpretation of a contract presents a question of law subject to de novo review in

accordance with the general rules applicable to contract interpretation. Gallagher v. Lenart, 226

Ill. 2d 208, 219 (2007). We construe a clear and unambiguous contract as a matter of law. See

Storino, Ramello & Durkin v. Rackow, 2015 IL App (1st) 142961, ¶ 18. Our primary goal in

interpreting a contract is to give effect to the intent of the parties. Thompson v. Gordon, 241 Ill.

2d 428, 441 (2011). When the words in the contract are clear and unambiguous, they must be

given their plain, ordinary, and popular meaning.        Id.   If the language of the contract is

susceptible to more than one reasonable meaning, it is ambiguous and a court can consider

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2018 IL App (2d) 160989


extrinsic evidence to determine the parties’ intent. However, the parties’ disagreement on the

meaning of a contract term does not, by itself, render that term ambiguous. Id. at 443. Rather,

ambiguity arises only when the language has more than one reasonable interpretation. Nicor,

Inc. v. Associated Electric & Gas Insurance Services Ltd., 223 Ill. 2d 407, 417 (2006).

¶ 16    Plaintiff argues that summary judgment was improper because (1) the construction

contract applied to property damage only and not to business-income loss, (2) plaintiff did not

purchase “builder’s risk insurance” as required by article 14, but instead plaintiff purchased a

commercial package policy that covered income loss, which was not required by article 14, and

(3) the construction contract is ambiguous in that it does not specify that income loss is part of 


the builder’s risk, and thus it should be interpreted in plaintiff’s favor as it is the insured. 


¶ 17    Defendant argues that the trial court properly granted summary judgment in its favor


because the relevant provisions of the construction contract unambiguously apply to the damages


incurred by plaintiff. We agree with defendant.


¶ 18    Paragraph 14(c) provided the following:


                “Waiver of Subrogation. Owner [(plaintiff)] and Design-Builder [(Ryan)] waive

        all rights against each other, and against their respective agents, employees and

        subcontractors, for damages caused by perils covered by the insurance to be maintained

        pursuant to Paragraph 14(b) hereof, except such rights as they may have to the proceeds

        of such insurance.       If, during the Project construction period, the Owner insures

        properties, real or personal or both, at or adjacent to the site by property insurance under

        policies separate from those insuring the Project, or if after final payment property

        insurance is to be provided on the completed Project through a policy or policies other

        than those insuring the Project during the construction period, the Owner shall waive all

        rights against Design-Builder, and against its respective agents, employees and

                                                  -7­
2018 IL App (2d) 160989


       subcontractors, for damages caused by perils covered by this separate property

       insurance.” (Emphases added.)

Paragraph 14(b)(i) provided, in part:

       “Owner [(plaintiff)] shall purchase and maintain, until the date of Substantial

       Completion, ‘all-risk’ builder’s risk insurance covering the Project.”

¶ 19   Plaintiff’s interpretation of the waiver of subrogation renders the second sentence of

paragraph 14(c) meaningless. The Erie insurance endorsement and the insurance policy attached

to plaintiff’s response to defendant’s motion for summary judgment indicate that plaintiff was

covered by an “Ultrapack Business Policy” that was in effect at the time of the fire and covered

property damage and income loss. The name of the policy is irrelevant because under paragraph

14(c) the waiver applied to claims “for damages caused by perils covered by this separate

property insurance.” Thus, plaintiff’s argument that the waiver did not apply, because it bought

a commercial policy, fails. Under either policy, the peril of fire was covered by insurance. The

nature and extent of the damages insured are immaterial because it is the peril covered and not

the type of damages that sustains the waiver.

¶ 20   We now address plaintiff’s concomitant arguments that the construction contract applied

to property damage only and not business-income loss and that the contract is ambiguous

because it does not specifically list income loss. We reject both arguments.

¶ 21   The waiver expressly covered “damages caused by perils.” The dictionary definition of

“damage” does not support plaintiff’s argument. Damage is defined as “loss due to injury”

(Webster’s Third New International Dictionary 571 (1993)) and loss or injury to person or

property (Black’s Law Dictionary 416 (8th ed. 2004)).          These definitions are broad and

implicitly include loss of business income. To the extent that the waiver does not enumerate

different types of damages that could result from a peril, “it purports only to be inclusive, not

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2018 IL App (2d) 160989


preclusive.” Intergovernmental Risk Management v. O’Donnell, Wicklund, Pigozzi & Peterson

Architects, Inc., 295 Ill. App. 3d 784, 795-96 (1998). Nothing in the language of the waiver

indicates that the parties intended an exception for loss of business income. We will not add

terms to a contract to change the plain meaning, as expressed by the parties. See Empress

Casino Joliet Corp. v. W.E. O’Neil Construction Co., 2016 IL App (1st) 151166, ¶ 62; see also

Berryman Transfer & Storage Co. v. New Prime, Inc., 345 Ill. App. 3d 859, 863 (2004) (“Illinois

recognizes a strong presumption against provisions that easily could have been included in a

contract but were not.”). Thus, applying the plain and ordinary meaning of the term damages to

article 14 of the construction contract, we determine that it clearly and unambiguously included

loss of business income. Therefore, the trial court properly granted summary judgment in

defendant’s favor.

¶ 22                                      B. Affidavits

¶ 23   Plaintiff argues that the trial court improperly struck the affidavits of Routman, Paquette,

and Ritacca. According to plaintiff, the affidavits complied with Illinois Supreme Court Rule

191 (eff. Jan. 4, 2013).

¶ 24   The record on appeal, however, does not include a transcript of the hearing on the motion

to strike or a substitute in compliance with Illinois Supreme Court Rule 323 (eff. July 1, 2017).

An appellant has the burden of presenting a sufficiently complete record of the proceedings to

support a claim of error. In the absence of such a record on appeal, it will be presumed that the

order entered by the trial court was in conformity with the law. Foutch v. O’Bryant, 99 Ill. 2d

389, 391 (1984). Without an adequate report of the proceedings showing the basis for the trial

court’s ruling on the motion to strike, we must presume that its decision was appropriate. Id. at

391-92; see also Preze v. Borden Chemical, Inc., 336 Ill. App. 3d 52, 56 (2002) (absent a

complete record on appeal, the appellate court must assume that the trial court’s order was

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2018 IL App (2d) 160989


correct and had a sufficient factual basis). The trial court’s reasoning aside, the affidavits would

not have affected our interpretation of article 14 of the construction contract; therefore, they

would have had no impact on our determination that the trial court properly granted summary

judgment in favor of defendant.

¶ 25                                   C. Local Rule 2-1.04

¶ 26   Plaintiff argues that the trial court erred by granting summary judgment in defendant’s

favor when defendant failed to attach to its motion a statement of uncontested material facts

pursuant to Nineteenth Judicial Circuit Court Rule 2-1.04, formerly local rule 2.04. 19th Judicial

Cir. Ct. R. 2-1.04 (Oct. 24, 2016). Plaintiff also contends that, when defendant finally submitted

its statement of material facts, it was not in compliance, because the statements were in the form

of a chart rather than short paragraphs and were not numbered. Based on the trial court’s

inherent power to control its docket, it has discretion whether to impose sanctions for violating

local rules. VC&M, Ltd. v. Andrews, 2013 IL 114445, ¶ 26.

¶ 27   Local rule 2-1.04 governs motions for summary judgment and provides in pertinent part:

               “A. In all filings pursuant to 735 ILCS 5/2-1005, the moving party shall serve and

       file:

                                                   ***

                       3. a statement of material facts as to which the moving party contends

               there is no genuine issue and that entitles the moving party to a Judgment as a

               matter of law[.]

                                                   ***

               The statement referred to in Section (A)(3) shall consist of short numbered

       paragraphs, including within each paragraph specific references to affidavits, parts of the

       record, and other supporting materials relied upon to support the facts set forth in that

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2018 IL App (2d) 160989


       paragraph. Failure to submit such a statement constitutes grounds for denial or striking

       of the Motion.” 19th Judicial Cir. Ct. R. 2-1.04(A) (Oct. 24, 2016).

¶ 28   Here, defendant initially violated the local rule by failing to attach a statement of material

facts when it filed its motion for summary judgment. However, as directed by the trial court,

defendant subsequently submitted its statement of material facts. We cannot say that the trial

court abused its discretion by allowing defendant to submit the statement of facts after it filed its

motion for summary judgment.

¶ 29   Further, plaintiff has failed to indicate how defendant’s alleged failure to comply with the

technical aspects of local rule 2-1.04(A) caused plaintiff any prejudice or surprise. Accordingly,

we cannot say that the trial court abused its discretion by not denying defendant’s motion for

summary judgment as a sanction for failing to comply with the local rule. See VC&M, 2013 IL

114445, ¶ 27 (holding that the trial court did not abuse its discretion by failing to sanction a party

for a violation of a local rule where the opposing party did not claim prejudice).

¶ 30                                    III. CONCLUSION

¶ 31   For the reasons stated, we affirm the trial court’s order.

¶ 32   Affirmed.




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