                                  Illinois Official Reports

                                          Appellate Court



                    Gomez v. Bovis Lend Lease, Inc., 2013 IL App (1st) 130568




Appellate Court              CARLOS GOMEZ, Plaintiff, v. BOVIS LEND LEASE, INC.,
Caption                      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).


District & No.               First District, Third Division
                             Docket No. 1-13-0568


Filed                        December 24, 2013



Held                         In a negligence action against the construction manager and the
(Note: This syllabus         contractor for a major construction project where plaintiff was injured
constitutes no part of the   when he fell through a plywood board that covered an “infill,” the
opinion of the court but     entry of summary judgment against defendants on their contribution
has been prepared by the     claim against a subcontractor engaged in providing designs and
Reporter of Decisions        support for the infill areas was affirmed on appeal, since the
for the convenience of       subcontract was ambiguous as to the subcontractor’s duties, but the
the reader.)                 undisputed extrinsic evidence established that the subcontractor had
                             no duty to provide support for the infill areas.




Decision Under               Appeal from the Circuit Court of Cook County, No. 09-L-003250; the
Review                       Hon. Daniel T. Gillespie, Judge, presiding.
     Judgment                 Affirmed.


     Counsel on               Mark E. Christensen, Katherine A. Jones, and Nathan A. Hall, all of
     Appeal                   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                    PRESIDING JUSTICE HYMAN delivered the judgment of the court,
                              with opinion.
                              Justices Neville and Mason concurred in the judgment and opinion.


                                               OPINION

¶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.

¶2                                        BACKGROUND
¶3         Bovis and McHugh were Trump International Hotel and Tower’s (Trump Tower)
       construction manager and general contractor, respectively. On July 11, 2005, McHugh hired
       PERI to design and supply Trump Tower’s concrete forming systems and to provide on-site
       technical support for the concrete forming systems. McHugh used the concrete forming
       systems to create floors by pouring concrete into PERI’s metal and wood forms. After the
       concrete dries, the forms are removed. Infills occur when the forming system’s prefabricated
       frames do not match the floor’s size or shape, resulting in a small gap between the formed
       concrete and a wall or column. The parties agree that PERI did not provide any designs,


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       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.

¶9                                                ANALYSIS
¶ 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
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       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.

¶ 12                                 Contract Interpretation–Ambiguity
¶ 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:
               • “Drawings and calculations shall be provided for all major systems, including, but
               not limited to Skydeck and Multiflex slab and beam forming (inclusive of reshoring),

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                CCP system, Helix forming systems (Rundflex and Uniportal), and the Perimeter ACS
                column system.”
                • “This contract is intended to be all inclusive of the forming requirements for every
                cast-in-place concrete component of the project unless specifically excluded herein.”
                • “PERI shall provide all safety devices and equipment as specified by McHugh in it’s
                [sic] project safety plan, as required by government regulation or as is normally used
                with PERI’s systems are included.”
                • “PERI shall provide all required shop drawings and assembly drawings.”
                • “PERI shall provide technical assistance as required by McHugh.”
                • “Purchase of Skydeck System complete with new fin form facing *** PERI shall
                periodically review the condition of the form facing materials and make
                recommendations to McHugh.”
                • “Rental equipment is inclusive of *** all other additional equipment as required to
                form all supported slabs, drop heads, beams, slab steps and other components of the
                supported slabs for the project.”
                • “Pricing includes on site technical support and complete formwork drawings
                detailing the proper use of PERI systems. PERI’s technical personnel will ensure that
                Contractor’s personnel are adequately trained in the use, assembly and disassembly of
                the different systems. PERI will visit the site as required to insure that the proper use
                and maintenance of the systems are being performed and will document the same.”
                • “PERI will provide all necessary shop drawings and design and technical design
                services for the application of all material supplied hereunder.”
¶ 19        None of the clauses address PERI’s duties regarding infill areas, nor do Bovis and McHugh
       describe how these clauses bolster their argument. The only explicit mention of “infill” in the
       contract excludes the supply of “[p]lywood for Multiflex forming systems or Skydeck infills”
       from PERI’s duties. This mere mention affords no clue as to what duties PERI had regarding
       infill areas.
¶ 20        PERI emphasizes that the contract never specifically references infill areas, other than the
       plywood board exclusion. Moreover, PERI points out that under the contract it must “provide
       all necessary shop drawings and design and technical design services for the application of all
       material supplied hereunder,” which PERI construes as imposing a duty on PERI to provide
       design drawings or technical support only in connection with materials that PERI was required
       to supply. Since PERI was not required to supply the plywood for the infills, PERI argues that
       it likewise had no duty to provide drawings or technical support for the infills. But this
       interpretation ignores that nothing in the contract explicitly excludes PERI from providing
       support for materials it does not supply. In addition, the clause does not address the
       engineering or technical support services that are also at issue.
¶ 21        Ambiguity exists when the contract provisions can reasonably be read in more than one
       way. William Blair & Co., 358 Ill. App. 3d at 334. In William Blair, defendant hired plaintiff to
       find a potential buyer for its business. Id. at 327. The contract entitled plaintiff to a commission
       as long as plaintiff introduced a party to defendant who ultimately purchased the business, but
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       if either party terminated the contract, the commission would be paid only if the buyer engaged
       in “substantive discussions” before the contract’s termination. Id. Plaintiff introduced a buyer
       who purchased the business after the contract’s termination. Id. At issue was whether
       plaintiff’s confidentiality agreement and phone calls with the buyer constituted “substantive
       discussions.” Id. at 332-33. The court found the term ambiguous because “substantive
       discussions” was open to differing interpretations. Id. at 336. See also Clayton v. Millers First
       Insurance Cos., 384 Ill. App. 3d 429, 436-37 (2008) (insurance policy was ambiguous because
       the term “ward” was open to differing interpretations).
¶ 22        As in William Blair, ambiguity arises because PERI’s duty, if any, regarding infills is open
       to differing interpretation. The contract’s only reference to infills, the exclusion of infill
       plywood boards, offers no guidance. Hence, we cannot ascertain from the four corners of the
       contract the nature of PERI’s duty as to the infill areas and find the contract ambiguous.

¶ 23                                         Extrinsic Evidence
¶ 24       The use of extrinsic evidence turns on the nature of the facts considered in resolving the
       ambiguity. See Loyola Academy v. S&S Roof Maintenance, 146 Ill. 2d 263, 272 (1992)
       (usually question of fact when court uses extrinsic evidence to interpret contract). If
       determination of the parties’ intent requires resorting to facts in dispute, then the contract must
       be construed by the trier of fact. Bank of Ravenswood v. Polan, 256 Ill. App. 3d 470, 474
       (1993). But if the parties’ intent can be determined solely from facts not in dispute, then the
       court can decide the issue as a matter of law. Id. See also William Blair & Co., 358 Ill. App. 3d
       at 342 (extrinsic evidence may be used at summary judgment to construe the contract’s
       meaning as matter of law when facts not in dispute); McCarthy v. Illinois Casualty Co., 408 Ill.
       App. 3d 526, 535-36 (2011) (contract interpretation was a matter of law when extrinsic
       evidence showed clear intent of parties); Ridenhour v. Mollman Publishing Co., 66 Ill. App. 3d
       1049, 1051 (1978) (undisputed evidence that employer paid a severance can be used to
       interpret employment contract as matter of law).
¶ 25       Bovis and McHugh argue that the contract’s integration clause precludes the court from
       using extrinsic evidence to interpret the contract. Paragraph 12, labeled “Stipulations and
       Clarifications,” states:
               “This Agreement represents the whole Contract between the parties, any course of
               dealing, usage of trade, or actual course of performance to the contrary
               notwithstanding, and no representations or agreements made by either party, or by any
               representative of either party, in the negotiations leading to this Agreement, or
               otherwise, which are not expressly reserved herein writing shall be binding on such
               party. Failure of PERI or Contractor to insist in any one or more instances upon strict
               performance of any on [sic] of the provisions of this contract, or to take advantage of
               any of its rights hereunder, shall not be construed as a waiver of any such provisions or
               the relinquishment of any such rights, but the same shall continue and remain in full
               force and effect.”
¶ 26       A court may not use extrinsic evidence to interpret a facially unambiguous contract if the
       contract contains an integration clause. Air Safety, Inc. v. Teachers Realty Corp., 185 Ill. 2d
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       457, 466 (1999). But an integration clause will not preclude the court’s consideration of
       extrinsic evidence in the event the contract is ambiguous. See Asset Recovery Contracting,
       LLC v. Walsh Construction Co. of Illinois, 2012 IL App (1st) 101226 (where contract
       ambiguous, extrinsic evidence used to interpret contract despite presence of integration
       clause). The integration clause in McHugh and PERI’s contract does not prevent the court from
       relying on extrinsic evidence because we find the contract ambiguous.
¶ 27       Bovis and McHugh further argue that the court may not decide the summary judgment
       motion based on the extrinsic evidence because “Peri and McHugh rely on conflicting extrinsic
       evidence.” Contrary to Bovis and McHugh’s contention, the parties’ intent can be determined
       solely by considering the facts not in dispute. Bovis and McHugh did not dispute any of
       PERI’s evidence regarding the parties’ previous dealings or course of performance.
¶ 28       The extrinsic evidence in the record reveals that McHugh and PERI worked on about 20
       projects before this project and on none of them did McHugh request or PERI provide McHugh
       with design or other support services for infill areas. While Bovis and McHugh argue that these
       previous dealings are irrelevant because the Trump Tower project was larger than any of the
       other projects, the size of the project should not make a difference. But even if the enormity of
       this project did make a difference, McHugh would have been expected 2to be explicit on
       PERI’s duty to provide infill support.
¶ 29       In addition, during construction, McHugh never requested that PERI provide designs,
       drawings, or support regarding infill areas, either before or after Gomez fell. McHugh paid
       PERI in full for its work and at no time indicated any deficiency with respect to PERI’s
       performance. Also, before filing the contribution claim, McHugh never suggested to PERI that
       PERI had a duty to provide support to the infill areas.
¶ 30       Thus, PERI’s extrinsic evidence on previous dealings between McHugh and PERI, as well
       as the parties’ performance on this project, establishes PERI had no duty to provide designs or
       other support for the infill areas. PERI’s extrinsic evidence is undisputed and convincing on
       this point. Accordingly, PERI owed no duty to provide support to the infill areas, and we
       affirm the grant of summary judgment on the contribution claim.
¶ 31       Given our resolution of this issue, we need not address the question of proximate cause,
       including issues raised by Bovis and McHugh’s expert witness’s affidavit.

¶ 32                                Occupational Safety and Health Act
¶ 33       Bovis and McHugh advance the notion that PERI’s duty to provide support for the infill
       areas arose due to its status as a “specialty contractor” under the Occupational Safety and
       Health Act (29 U.S.C. § 651 et seq. (2000)). The contention lacks reasoning or citation to
       authorities, and, therefore, we deem it waived. See Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013)
       (appellant’s brief must contain “citation of the authorities and the pages of the record relied
       on”); Aurora Loan Services, LLC v. Kmiecik, 2013 IL App (1st) 121700, ¶ 21.

¶ 34      Affirmed.


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