                                                             FIFTH DIVISION
                                                             February 29, 2008



No. 1-07-1041

NICOR GAS COMPANY,                                    )      Appeal from the
                                                      )      Circuit Court of
       Plaintiff-Appellant and Cross-Appellee,        )      Cook County.
                                                      )
v.                                                    )      No. 04 L 444
                                                      )
THE VILLAGE OF WILMETTE.                              )      Honorable
                                                      )      Robert Lopez Cepero,
       Defendant-Appellee and Cross-Appellant.        )      Judge Presiding.

       PRESIDING JUSTICE FITZGERALD SMITH delivered the opinion of the court:

       Plaintiff Nicor Gas Company appeals from the dismissal with prejudice, pursuant to

section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2006)), of its

second amended complaint in its action for negligence against defendant Village of Wilmette

(Village). The Village has filed a cross-appeal from the denial of its motion to dismiss pursuant to

section 2-619 of the Code (735 ILCS 5/2-619 (West 2006)), which was based on assertions

concerning tort immunity. We have no jurisdiction to consider the Village's cross-appeal, but we

affirm the section 2-615 dismissal of Nicor's second amended complaint.

       According to allegations in Nicor's second amended complaint, the Village maintained and

operated, at all times relevant, a subterranean water system that includes an underground water

main pipe under the intersection of Poplar, 10th and Gregory Streets, and on January 10, 2003, a

broken subterranean water main near that intersection caused a puncture in Nicor's gas main.

Thousands of tons of water from the Village's subterranean water system were forced into the

punctured Nicor gas main, allegedly damaging not only the property of Nicor and its customers,
1-07-1041

but also causing natural gas outages to Wilmette and Evanston residents within an approximately

10-mile radius.

       In 2004, Nicor first filed a two-count action for property damage against the Village in

which Nicor alleged negligence and sought recovery under a theory of res ipsa loquitur. Shortly

thereafter, the Village filed a motion to dismiss pursuant to sections 2-615 and 2-619 of the Code.

Specifically, in the portion of the motion brought under section 2-619, the Village asserted that it

was immune from liability because "inspecting, monitoring and replacing water mains are

discretionary actions subject to immunity" under section 2-201 of the Local Governmental and

Governmental Employees Tort Immunity Act (Act), and that it was immune from liability under

section 3-102 of the same. See 745 ILCS 10/2-201, 3-102 (West 2006). The court granted the

Village's motion to dismiss with prejudice pursuant to section 2-615 as to the allegations of

negligence and res ipsa loquitur, finding there was no duty owed by the Village. The court also

found the Village did not meet its burden under section 2-201 of the Act and had failed to

establish that immunity applies.

       In 2005, Nicor filed an amended complaint again raising negligence and res ipsa loquitur.

The Village later filed a motion to dismiss pursuant to section 2-619 of the Code. That motion

was denied on October 26, 2005.

       In 2006, Nicor filed its second amended complaint, again including counts for negligence

(i.e., negligent maintenance of the water pipes and operation of the water distribution system by

the Village) and res ipsa loquitur and adding counts for breach of contract and intentional

trespass. In its breach of contract claim, Nicor alleged that the contract with the Village was


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formed when the Village passed Ordinance No. 94-0-66 (Village of Wilmette, Ill., Ordinance No.

94-0-66 (approved October 11, 1994)), granting it a 50-year easement (beginning in 1994) to

place, maintain and operate its gas pipes under the streets of Wilmette, in consideration for which

Nicor would provide gas for use by the Village. Nicor further alleged that the easement includes

a right of quiet enjoyment as an implied term of the contract. Finally, Nicor alleged that the

January 2003 leak of the Village's water main constituted an act of intentional trespass onto

Nicor's property.

       Also in 2006, the Village filed a complaint against Nicor in the municipal division of the

circuit court, alleging that Nicor negligently punctured one of the Village's water mains. Nicor

subsequently moved to consolidate the cases, but its motion was denied.

       The Village filed a motion to dismiss Nicor's second amended complaint pursuant to

section 2-615 of the Code in which it alleged that Nicor could not recover any damages for the

Village's alleged "misconduct" because its contract with Nicor included a provision indemnifying

it for any damages resulting from Nicor's occupation of the easement. Based on that provision,

the Village also alleged that Nicor's recovery on any of the counts alleged was barred.

       On November 1, 2006, the court granted the Village's section 2-615 motion to dismiss

Nicor's second amended complaint. Nicor subsequently filed a motion to reconsider, which the

court denied on March 14, 2007. Nicor timely filed an appeal from the orders of November 1,

2006, and March 14, 2007.

       The Village subsequently filed a cross-appeal from the court's October 26, 2005, order

denying its section 2-619 motion to dismiss Nicor's amended complaint.


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        At this juncture, we note that Nicor has filed a motion in this court, which was taken with

the case, to strike portions of the Village's brief.

        In its motion, Nicor asks this court to strike, pursuant to Supreme Court Rule 361 (177

Ill. 2d R. 361), the portions of the Village's response brief relating to: (1) the Village's section 2-

619 motion to dismiss Nicor's amended complaint; (2) the Village's factual statements drawn from

sources other than Nicor's second amended complaint; and (3) "any arguments improperly made"

by the Village in its statement of facts.

        As to its first point, Nicor points out that its amended complaint was superseded by its

second amended complaint and it asks that the arguments pertaining to the Village's section 2-619

motion to dismiss be stricken because they are no longer part of the record and are irrelevant to

the current appeal. While Nicor correctly states that its amended complaint has been superseded

by its second amended complaint (see, e.g., Vincent v. Williams, 279 Ill. App. 3d 1, 6-7, 664

N.E.2d 650 (1996)), the Village's cross-appeal must be dismissed because we lack jurisdiction to

consider it. The order from which the Village purports to appeal was entered on October 26,

2005, yet the Village filed its notice of appeal only in April 2007. Thus, the Village's notice of

appeal was not timely filed. See 155 Ill. 2d R. 303(a)(1) (requiring notice of appeal to be filed

within 30 days after entry of final order). Moreover, the denial of the Village's motion was not a

final order and, thus, it would not have been appealable in any event. See 155 Ill. 2d R.

303(a)(1). Accordingly, because we do not have jurisdiction to hear the Village's cross-appeal,

we do not consider the portions of the Village's response brief relating to the appeal of the denial

of its section 2-619 motion to dismiss Nicor's amended complaint.


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       In its motion, Nicor next contends that certain pages in the Village's statement of facts

should be stricken because they are drawn from affidavits that were part of the Village's section 2-

619 motion to dismiss but that are not included on the face of the second amended complaint.

Specifically, Nicor objects to pages 4 through 8 of the Village's response brief which contain facts

drawn from affidavits of three individuals, Brad Enright, Brigitte Mayerhofer, and Ray Ames.

Nicor contends that the same pages, 4 through 8, of the response brief should also be stricken as

violative of Supreme Court Rule 341 because they are argumentative. See 188 Ill. 2d R.

341(e)(6).

       Nicor correctly states that the standard of review of a dismissal pursuant to section 2-615

(as well as pursuant to section 2-619) of the Code is de novo, making the Village's attempt to

present an additional factual basis for its position irrelevant. See Neppl v. Murphy, 316 Ill. App.

3d 581, 583-84, 736 N.E.2d 1174 (2000). Nicor also correctly states that Rule 341 prohibits

argument or comment in the statement of facts. See 188 Ill. 2d R. 341(e)(6). However, we need

not strike the pages of the Village's brief designated by Nicor because neither the facts nor

commentary contained therein plays a role in our disposition.

       On appeal, Nicor first contends that the indemnification clause at issue does not indemnify

the Village because the clause was not so clear, specific and unequivocal as to require

indemnification of the Village for its own negligence.

       As noted earlier, we review de novo the grant of a section 2-615 motion to dismiss. See

Neppl, 316 Ill. App. 3d at 583.

       Illinois law generally provides that contracts of indemnity against one's own negligence are


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1-07-1041

valid and enforceable (Burlington Northern R.R. Co. v. Pawnee Motor Service, Inc., 171 Ill. App.

3d 1043, 1045, 525 N.E.2d 910 (1988)); such contracts are valid provided that the indemnitor's

obligations are set forth in clear and explicit language. Burlington Northern R.R. Co., 171 Ill.

App. 3d at 1045; see also Zadak v. Cannon, 59 Ill. 2d 118, 120, 319 N.E.2d 469 (1974); Tatar v.

Maxon Construction Co., 54 Ill. 2d 64, 66-67, 294 N.E.2d 272 (1973).

       Indemnity agreements are contracts that are subject to general rules of contract

interpretation. Buenz v. Frontline Transportation Co., No. 103562, slip op. at 4 (January 25,

2008). As such, it is the parties' intent, as expressed in the contract language, that is paramount,

and where the language is clear and unambiguous, it should be given its plain and ordinary

meaning. Buenz, slip op. at 4.

       Recently, in Buenz, our supreme court again addressed whether indemnity agreements

provide indemnification for an indemnitee's own negligence. See Buenz, slip op. at 4-12. There,

the court recognized that parties to a contract could indemnify a person for that person's own

negligence. Buenz, slip op. at 5. The Buenz court examined its earlier holding in Westinghouse

Electric Elevator Co. v. LaSalle Monroe Building Corp., 395 Ill. 429, 70 N.E.2d 604 (1946),

where, holding that the indemnity contract could not apply, it noted that an indemnity contract

would not be construed as indemnifying one against one's own negligence " 'unless such a

construction is required by clear and explicit language of the contract [citations] or such intention

is expressed in unequivocal terms.' " (Emphasis added.) Buenz, slip op. at 5, quoting

Westinghouse Electric, 395 Ill. at 433.

       The court briefly noted other past decisions in which it reviewed contracts that were


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1-07-1041

purported to indemnify an indemnitee for its own negligence, but concluded with an observation

made earlier, that " 'it serve[s] no useful purpose to attempt to analyze or reconcile the numerous

cases interpreting indemnity clauses' since each individual case 'depends upon the particular

language used and the factual setting of the case.' " Buenz, slip op. at 6-7, quoting Zadak, 59 Ill.

2d at 121. The court then examined at length Karsner v. Lechters Illinois, Inc., 331 Ill. App. 3d

474, 771 N.E.2d 606 (2002), which the appellant (like Nicor here) placed reliance upon and it

discussed whether the use of the phrase "any and all" in an indemnification provision was

sufficient to indemnify an indemnitee for its own negligence. Buenz, slip op. at 7-12. The Buenz

court criticized the decision in Karsner, where the contract contained no limiting language, and it

concluded that the indemnitee there "was entitled to indemnification, even for its own

negligence," but "[t]his was not, however, the Karsner court's holding." Buenz, slip op. at 9. The

court noted that, as in Karsner, there have been other cases where the inclusion of the phrase "any

and all" within an indemnification clause was insufficient to indemnify an indemnitee for its own

negligence, but in those instances, the indemnification agreements contained limiting language

expressly restricting indemnification liability. Buenz, slip op. at 9 (discussing Blackshare v.

Banfield, 367 Ill. App. 3d 1077, 857 N.E.2d 743 (2006), and Hankins v. Pekin Insurance Co., 305

Ill. App. 3d 1088, 713 N.E.2d 1244 (1999)).

       In the discussion, the court clarified that, contrary to the appellant's assertion, neither

Blackshare nor Hankins stood for "the proposition that the inclusion of the phrase 'any and all'

within an indemnification clause is insufficient to indemnify an indemnitee for its own negligence."

Buenz, slip op. at 10. Those cases, according to the Buenz court, "merely stand for the


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proposition that when an indemnity contract expressly limits itself to the negligence of the

indemnitor, courts will not strain, simply because the contract also contains 'any and all' language,

to read into that contract indemnification for an indemnitee's own negligence." Buenz, slip op. at

10.

       Rather, the use of the phrase "any and all" must be read in the context of the entire

contract to determine whether the particular contract does, in fact, provide indemnification for an

indemnitee's own negligence. Buenz, slip op. at 11. The employment of that phrase may indeed

indicate that the parties intended an indemnitee be indemnified, even for the indemnitee's own

negligence. Buenz, slip op. at 11; see also Economy Mechanical Industries, Inc. v. T.J. Higgins

Co., 294 Ill. App. 3d 150, 155, 689 N.E.2d 199 (1997); Rios v. Field, 132 Ill. App. 2d 519, 522,

270 N.E.2d 98 (1971); Haynes v. Montgomery Ward & Co., 47 Ill. App. 2d 340, 343, 198

N.E.2d 548 (1964). To the extent that the analysis in Karsner was contrary, it was overruled.

Buenz, slip op. at 12.

       In the case before it, the court found the indemnification did not contain any limiting

language and, thus, the express language "clearly and explicitly provide[d] indemnification for [the

indemnitee's] own negligence." Buenz, slip op. at 12. The agreement was "very broad and,

considering its common unambiguous meaning, encompasses even claims which arise out of [the

indemnitee's] negligence." Buenz, slip op. at 12.

       The agreement in the instant case, set forth in Ordinance No. 94-0-66 ("An Ordinance

Authorizing Northern Illinois Gas Company, Its Successors and Assigns, to Construct, Operate

and Maintain a Gas Distribution System in and Through the Village of Wilmette, Illinois") is just


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as clear and unambiguous. Village of Wilmette, Ill., Ordinance No. 94-0-66 (approved October

11, 1994). Section 4 of Ordinance No. 94-0-66 provides:

                       "The Grantee [i.e., Nicor] shall indemnify, become

               responsible for and forever save harmless the Municipality from any

               and all judgments, damages, decrees, costs and expenses, including

               attorneys' fees, which the Municipality may legally suffer or incur,

               or which may be legally obtained against the Municipality, for or by

               reason of the use and occupation of any Public Place in the

               Municipality by the Grantee pursuant to the terms of this ordinance

               or legally resulting from the exercise by the Grantee of any of the

               privileges herein granted." Village of Wilmette, Ill., Ordinance No.

               94-0-66 (approved October 11, 1994).

       As in Buenz, the use of the "any and all" language in the indemnification clause is not

accompanied by any limiting language that would "suggest that the indemnity provided is not

intended to cover claims resulting from [the indemnitee's] own negligence." Buenz, slip op. at 12.

Likewise, the indemnification clause here, as in Buenz, is very broad; the words "any and all" are

all inclusive and do not limit the scope of the agreement. See Buenz, slip op. at 12. Under

Buenz, we conclude that the express language of the parties' agreement clearly and explicitly

provides indemnification for the Village's own negligence; that is, taken in their common and

unambiguous meaning, the words used in the indemnification provision encompass even claims

that arise out of the Village's negligence. See Buenz, slip op. at 12.


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          Further, we reject Nicor's argument that the indemnification provision must be found void

under the Construction Contract Indemnification for Negligence Act (740 ILCS 35/1 (West

2006)). Rather, we agree with the Village that Nicor's sole authority for this proposition does not

apply. See Modern Steel Treating Co. v. Liquid Carbonic Industrial/Medical Corp., 298 Ill. App.

3d 349, 353, 698 N.E.2d 710 (1998) (finding that parties' contract involved alteration and repair

of furnace and building, for which city construction permits were obtained; thus, it was a

construction contract). Here, because the indemnification provision unequivocally requires

indemnification of the Village for its own negligence, all Nicor's claims against the Village are

barred (see section 4 of Ordinance No. 94-0-66: Village is held harmless from "any and all

judgments, damages, decrees, costs and expenses") and, therefore, the section 2-615 motion to

dismiss Nicor's second amended complaint was properly granted. Based on this disposition, we

need not consider Nicor's arguments concerning its breach of contract or intentional trespass

claims.

          Accordingly, the judgment of the circuit court is affirmed.

          Affirmed.

          GALLAGHER and O'MARA FROSSARD, JJ., concur.




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1-07-1041

            REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT

______________________________________________________________________________

                                 NICOR GAS COMPANY,

                           Plaintiff-Appellant and Cross-Appellee,

                                              v.

                             THE VILLAGE OF WILMETTE,

                     Defendant-Appellee and Cross-Appellant.
______________________________________________________________________________

                                        No. 1-07-1041

                                 Appellate Court of Illinois
                                 First District, Fifth Division
                                      February 29, 2008
______________________________________________________________________________

             PRESIDING JUSTICE FITZGERALD SMITH delivered the
                                opinion of the court:
                    Gallagher and O'Mara Frossard, JJ., concur.
____________________________________________________________________________
                      Appeal from the Circuit Court of Cook County
                                        04 L 444
                     The Hon. Robert Lopez Cepero, Judge Presiding.
______________________________________________________________________________
FOR PLAINTIFF-APPELLANT and
CROSS-APPELLEE:

Patrick G. Donnelly
Alexander McH. Memmen
Riordan, Donnelly, Lipinski & McKee, Ltd.           FOR DEFENDANT-APPELLEE and
10 N. Dearborn St., 4th Floor                       CROSS-APPELLANT:
Chicago, IL 60602
                                                    James L. DeAno


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1-07-1041

Howard P. Levine
DeAno & Scarry
2100 Manchester Road, Suite A-101
Wheaton, IL 60187




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