# Harbison

> District Court, C.D. Illinois · March 27, 2026

URL: https://www.frixlaw.com/law-library/cases/11296005

## Case

- **Full name:** Andrew Harbison v. JBS USA Food Company and Swift Pork Company
- **Court:** District Court, C.D. Illinois
- **Decided:** March 27, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11296005

## How later opinions describe it (automated extraction)

- finding a fraud claim alleging a party entered a contract intending to not effect performance was dependent on the contract

## Opinion text

rriday, 2/ Marcn, 24U20 □□□□□□□
Clerk, U.S. District Court, IL
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
ANDREW HARBISON, )
Plaintiff, )
)
) Consolidated Cases
-JBS USA FOOD COMPANY and ) Case Nos. 24-cv-3159,
SWIFT PORK COMPANY, ) 24-cv-3196
Defendants/Third-Party Plaintiffs, )
v. )
)
SHARKEY TRANSPORTATION, INC. )
Third-Party Defendant. )
OPINION
COLLEEN R. LAWLESS, United States District Judge:
Before the Court is Third-Party Defendant Sharkey Transportation Inc.’s Motion
to Dismiss (Doc. 36).
I. BACKGROUND
Plaintiff Andrew Harbison alleges he was injured on June 21, 2023, at the
Defendants’ premises while working as a spotter employed by Sharkey Transportation
Inc. (“Sharkey”). (Doc. 1-1). He filed two lawsuits in state court against the companies
that owned and operated the parking lot where he was injured, JBS USA Food Company
(“JBS”) and Swift Pork Company (“Swift”).1 After the case was removed to federal court,
JBS and Swift brought three counts against Sharkey, Harbison’s employer. (Doc. 27). JBS
and Swift contend Sharkey entered into a services agreement (“Agreement”) and

' Harbison filed one state case against JBS and another against Swift and JBS USA Holdings, Inc. (Doc. 27
at 1-2). JBS USA Holdings, Inc. has since been terminated as a defendant. (August 20, 2024 Text Order).
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Statement of Work requiring Sharkey to obtain insurance coverage naming JBS and Swift
as insureds. Count I alleges Sharkey failed to obtain this required insurance coverage in
violation of the Agreement. Count II alleges contractual indemnity under the Agreement
and Count III seeks contribution in that Sharkey’s negligence caused Harbison’s injury.
II. DISCUSSION
A. Legal Standard
A motion under Rule 12(b)(6) challenges the sufficiency of the complaint. See
Christensen v. Cnty. of Boone, Ill., 483 F.3d 454, 458 (7th Cir. 2007). The court construes the
complaint in the light most favorable to the plaintiff, accepting all well-pleaded
allegations in the complaint as true and construing all reasonable inferences in the
plaintiff's favor. Id. at 457. To state a claim for relief, a plaintiff need only provide a “short
and plain statement of the claim” showing she is entitled to relief and giving the
defendants “‘fair notice’ of the claim and its basis.” Maddox v. Love, 655 F.3d 709, 718 (7th
Cir. 2011) (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007)). However, the complaint
must set forth facts that plausibly demonstrate a claim for relief. Bell Atl. Corp. v. Twombly,
990 U.S. 544, 547 (2007). A plausible claim is one that alleges factual content from which
the Court can reasonably infer that defendants are liable for the misconduct alleged. Iqbal,
556 U.S. at 678.

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B. Analysis
1. Jurisdiction
As a threshold matter, the Court has jurisdiction over this case. Harbison is an
Illinois citizen and JBS and Swift are corporate citizens of Delaware and Colorado. JBS
and Swift have now sued Sharkey, making it a third-party defendant. Sharkey is Illinois-
based like Harbison. However, this overlap does not defeat the Court's diversity
jurisdiction as Sharkey and Harbison are not adverse. See Fid. & Deposit Co. of Maryland v.
City of Sheboygan Falls, 713 F.2d 1261, 1266 (7th Cir. 1983); Caterpillar Inc. v. Lewis, 519 US.
61, 66 n.1 (1996) (“The fact that [plaintiff] and [third-party defendant] may be co-citizens
is completely irrelevant. Unless [plaintiff] chooses to amend his complaint to assert a
claim against [third-party defendant], [plaintiff] and [third-party defendant] are simply
not adverse, and there need be no basis of jurisdiction between them.”) (quotation marks
omitted).
2. Breach of Contract (Count I)
Sharkey argues Count I fails to state a plausible claim for breach of contract. In a
breach-of-contract claim, a party must prove four elements: “(1) the existence of a
contract; (2) performance by the plaintiff or some justification for nonperformance; (3)
failure to perform the contract by the defendant; and (4) resulting damages to the
plaintiff.” W. Distrib. Co. v. Diodosio, 841 P.2d 1053 (Colo. 1992) (internal citations
omitted). ? Sharkey asserts JBS and Swift did not allege facts establishing a breach of

2 The Court applies Colorado law consistent with the Agreement’s choice-of-law provision but would reach
the same conclusion under IIlinois law as the elements of a breach of contract claim are virtually identical.
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contract. The Court disagrees. The Third-Party Complaint identifies the exact provision
of the contract that Sharkey allegedly breached by failing “to obtain insurance coverage
naming them as certificate holders, additional insureds or loss payees under any policy
of insurance.” (Doc. 27 at {J 14-15). JBS and Swift are not required to explain exactly how
Sharkey’s insurance coverage was non-compliant with the Agreement. JBS and Swift
have, as required, provided a “short and plain statement” showing they are entitled to
relief. Fed. R. Civ. P. 8(a)(2). Therefore, Sharkey’s motion is denied as to Count I.
3. Contractual Indemnity (Count II)
Sharkey argues Count II should be dismissed because it is barred by the
Colorado’s Worker’s Compensation Act (“Colorado Act” or “Act”).3 Colo. Rev. Stat. § 8-
40-101 et seq. The Colorado Act “establishes the benefits available to workers injured in
the course and scope of employment and the procedures for obtaining those benefits.”
Rundle v. Frontier-Kemper Constructors, Inc., 170 F. Supp. 2d 1075, 1077-78 (D. Colo. 2001)
(citing Duran v. Indus. Claim Appeals Office, 883 P.2d 477, 479 (Colo. 1994)). In return for
these benefits and coverage, an employer who “has brought itself within the ambit of the
[Act] . . . is not subject to a common law action for damages, and the employee is limited
to the remedies specified in the Act.” Hilzer v. MacDonald, 169 Colo. 230, 237 (1969)
(citations omitted). This prohibition extends to common law indemnity claims. Id. (“The
terms of [the Act] not only limit the employer's liability to his employee but also preclude

See Nat'l Prod. Workers Union Ins. Tr. v. Cigna Corp., 665 F.3d 897, 905 (7th Cir. 2011); see also Townsend v.
Sears, Roebuck & Co., 227 Ill.2d 147, 156 (2007) (“A choice-of-law determination is required only when a
difference in law will make a difference in the outcome.”).
3 Both parties agree Colorado law should apply to Count II under the Agreement’s choice-of-law clause.
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liability to third persons for indemnification.”) (citations omitted); Pub. Serv. Co. of
Colorado v. Dist. Ct. In & For City & Cnty. of Denver, 638 P.2d 772, 776 (Colo. 1981) (“[T]his
court has held that an employer who has complied with the Workmen’s Compensation
Act cannot be held liable for indemnification to third parties.”) (citations omitted).
JBS and Swift maintain the Colorado Act does not bar their contractual
indemnification claim because (1) the Act only bars indemnity claims under common law,
not contract, and (2) Sharkey is not subject to the Act’s exclusivity provisions because it
has not brought itself within the Act’s ambit. JBS and Swift correctly state other courts
have found that “a cause of action based on a contractual right of indemnity is
independent of the exclusive jurisdiction provisions of Colorado’s Workmen's
Compensation Act.” Borroel v. Lakeshore, Inc., 618 F. Supp. 354, 359 (D. Colo. 1985); see also
United Cable Television of Jeffco, Inc. v. Montgomery LC, Inc., 942 P.2d 1230, 1233 (Colo. App.
1996) (“[T]he Act does not immunize an employer from a claim based on an express
indemnity agreement.”); Dutchmen Mfg., Inc. v. Reynolds, 849 N.E.2d 516, 524 n.5 (Ind.
2006) (favorably citing Borroel).
Sharkey argues the authority relied upon by JBS and Swift conflict with the
Colorado Act's “true purpose,” which is to provide blanket immunity from all liability
outside that imposed by the Act itself. In support of its argument, Sharkey directs the
Court to cases discussing the sweeping nature of the Colorado Act's exclusivity
provisions but does not provide any authority specifically addressing contractual
indemnity. Notably, the cases that do address contractual indemnity have found that

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allowing contractual indemnity claims to move forward favors freedom of contract and
does not conflict with the Colorado Act's policy, which is “to protect employees who
suffer injuries arising out of their employment and to give injured workers a reliable
source of compensation.” Borroel, 618 F. Supp. at 359 (quoting Engelbrecht v. Hartford
Accident and Indemnity Co., 680 P.2d 231 (Colo. 1984)). Therefore, the Colorado Act does
not bar Count II.
For the Act's exclusivity provisions to apply, an employer must have “complied
with the provisions of articles 40 to 47 of this title.” C.R.S.A. § 8-41-102. Sharkey does not
identify how it complied with the necessary articles. Neither Sharkey nor Harbison are
located in Colorado and Sharkey’s settlement with Harbison was approved by the Illinois
Workers’ Compensation Commission pursuant to Illinois’ Worker’s Compensation Act.
(Doc. 36-3). Sharkey offers no support for its argument that paying worker's
compensation pursuant to Illinois law makes it subject to the Colorado Act. For the above
reasons, Sharkey’s request to dismiss Count II is denied.4

4 Sharkey argues under IIlinoi law, JBS and Swift have not sufficiently pled a claim for indemnification
because the indemnification clause is not “without limitation” but is rather cabined to only encompass
Sharkey’s pro rata share of negligence. Sharkey argues the contractual indemnity claim is redundant
because it is functionally a contribution claim masquerading as a contract claim. Sharkey does not point to
any legal authority requiring the Court to dismiss a claim made under one legal theory because it seeks the
same remedy as a claim made under another legal theory. See Frazer v. A.F. Munsterman, Inc. 123 Ill.2d 245,
254 (1988). (“Indemnity and contribution are mutually exclusive remedies for allocating a plaintiff's
damages among joint tortfeasors with liability to the plaintiff.”).
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4. Contribution (Count ITI)
a) Choice of Law
Sharkey contends Colorado law applies to the contribution claim while JBS and
Swift contend Illinois law governs. Their disagreement centers on whether the choice-of-
law provision in the Agreement applies to tort claims, specifically contribution. Guerino
v. Depot Place P’ship, 191 Il.2d 314, 322 (2000) (“Contribution liability is predicated on tort,
not contract, liability.”). The provision states that “[t]his Agreement, including its
interpretation, performance and enforcement shall be governed by and construed in
accordance with the laws of the State of Colorado.” (Doc. 27-1 at 4).
A federal court exercising diversity jurisdiction applies the choice-of-law rules of
the forum state. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941).5 In Illinois,
“courts first examine the breadth and language of the choice-of-law provision to
determine whether the parties intended the choice-of-law provision to govern all claims
between them.” Medline Indus. Inc. v. Maersk Med. Ltd., 230 F. Supp. 2d 857 (N.D. Ill. 2002).
Thus, the question for the Court is not whether choice-of-law provisions abstractly
govern tort claims but whether the specific choice-of-law provision in the Agreement
governs tort claims. See Kuehn v. Childrens Hosp., Los Angeles, 119 F.3d 1296, 1302 (7th Cir.
1997) (“One can, it is true, find cases that say that contractual choice of law provisions

> Under Illinois law, courts do not honor a contract's choice-of-law provisions when “(1) the chosen state
has no substantial relationship to the parties or the transaction; or (2) application of the chosen law would
be contrary to a fundamental public policy of a state with a materially greater interest in the issue in
dispute.” Pactiv LLC ov. Perez, No. 20 CV 01296, 2020 WL 7123070, at *2 (N.D. Ill. Dec. 4, 2020) (citing cases
and quoting Brown and Brown, Inc. v. Mudron, 379 Ill. App.3d 724, 727 (2008)). JBS and Swift don’t argue that
this case falls under either of these two exceptions, so the Court need not address them.
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govern only contractual disputes and not torts. But what the cases actually hold is that
such a provision will not be construed to govern tort as well as contract disputes unless
it is clear that this is what the parties intended.”). (citations omitted). Here, the choice-of-
law provision is devoid of any indication that the parties wanted tort claims to be
governed by Colorado law. Instead, the plain language of the choice-of-law provision
appears limited to contractual disputes, not tort claims.
Even if a choice-of-law clause does not explicitly encompass tort actions, “tort
claims that are dependent upon the contract are subject to a contract’s choice-of-law
clause.” NewSpin Sports, LLC v. Arrow Elecs., Inc., 910 F.3d 293, 307 (7th Cir. 2018) (internal
quotation marks omitted). To determine whether a tort claim is dependent on a contract,
“courts examine whether the action alleges a wrong based upon the interpretation and
construction of the contract, or whether the claim alleges elements constituting an
independent tort.” Id. (internal quotation marks omitted). Here, JBS and Swift's
contribution claim does not contain any mention of the Agreement and does not appear
dependent on the Agreement in any material way. Rather, the claim accuses Sharkey of
carelessly and negligently training Harbison. Even if the Agreement could in some way
be later implicated in the adjudication of the contribution claim, Sharkey has not shown
that the claim “could not exist without the contract.” Amakua Dev. LLC v. Warner, 411 F.
Supp. 2d 941, 955 (N.D. Ill. 2006) (finding a fraud claim alleging a party entered a contract
intending to not effect performance was dependent on the contract). Furthermore, the
parties could have easily broadened the choice-of-law clause’s scope to include tort

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claims but did not. See Gallagher v. Lenart, 367 Ill. App. 3d 293, 301 (2006) (“A presumption
exists against provisions that easily could have been included in the contract but were
not.”). Therefore, the Court finds the choice-of-law provision in the Agreement does not
govern tort claims.
The Court’s decision is consistent with other district courts in Illinois. In Union Oil
Company v. John Brown E. & C., a plaintiff sued a contractor for breach of a construction
contract as well as for negligence and gross negligence on the same project under an
agreement containing a similar choice-of-law provision. No. 94 C 4424, 1994 WL 535108
at *1 (N.D. Ill. Sept. 30, 1994). The court held the provision did not apply to the negligence
and gross negligence claims as it did not clearly indicate the parties intended that all
claims arising from the construction project would be subject to California law. Id. at *2-
3. Other courts have found similar choice-of-law provisions to be inapplicable to tort
claims. See Precision Screen Machines Inc. v. Elexon, Inc., No. 95 C1730, 1996 WL 495564, at
*2(N.D. Ill. Aug. 28, 1996) (interpreting “[t]his letter shall be governed by, and construed
in accordance with, the internal laws of the State of New Jersey” to not apply to tort
claims). Therefore, the Court will apply Illinois substantive law to Count III.
b) Application of Illinois Law
Sharkey contends it is not liable for contribution to JBS and Swift under the Illinois
Workers’ Compensation Act (“Compensation Act”) and the Illinois Contribution Among
Joint Tortfeasors Act (“Contribution Act”). To properly appraise Sharkey’s argument, the
Court must examine the purpose of these two acts and navigate the relationship (and

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tension) between them. The Compensation Act “generally provides the exclusive means
by which an employee can recover against an employer for a work-related injury.”
McDonald v. Symphony Bronzeville Park, LLC, 2022 IL 126511, | 32 (quoting Folta v. Ferro
Engineering, 2015 IL 118070, { 14 (overridden on other grounds)). The Contribution Act,
as the name suggests, sets forth a scheme governing contribution claims.
JBS and Swift have brought a contribution claim (implicating the Contribution
Act) related to a work injury (implicating the Compensation Act). To harmonize these
two acts, courts have found that even though the Compensation Act provides the
exclusive remedies available to employees, employers can still be liable to third parties
for contribution claims under the Contribution Act. Doyle v. Rhodes, 101 Ill.2d 1, 14 (1984)
(“[U]nder the Contribution Act, the employer’s immunity from a suit in tort by its
employee as plaintiff is not a bar to a claim for contribution against it by a defendant held
liable to such a plaintiff.”). The Illinois Supreme Court has recognized that the
Compensation Act and Contribution Act embody competing interests in that the
Compensation Act restricts an employer's liability to funnel an employee’s claims
through the worker’s compensation system, and the Contribution Act codifies “the
equitable interests of [a] third-party defendant in not being forced to pay more than its
established fault.” Virginia Sur. Co. v. N. Ins. Co. of New York, 224 Ill.2d 550, 558 (2007)
(citing Kotecki v. Cyclops Welding Corp., 146 III.2d 155, 164-65 (1991)).
Illinois courts have reconciled these interests by establishing the following rule: an
employer’s contribution liability to a third-party plaintiff is limited to the amount it is

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liable to an employee under the Compensation Act. Kotecki, 146 Ill.2d at 165; see also
Guerrero v. Sebastian Contracting Corp., 321 Il.App.3d 32, 35 n.1 (2001) (“An employer's
contribution liability to a third-party plaintiff is limited to the amount of workers’
compensation benefits paid by the employer.”) (citations omitted). This rule “allows the
third party to obtain limited contribution but substantially preserves the employer's
interest in not paying more than workers’ compensation liability.” Kotecki, 146 Ill.2d at
165 (quoting Lambertson v. Cincinnati Corp. 312 Minn. 114, 119-20 (1977)). The exact
amount Sharkey is arguably liable for is not before the Court, but this analysis is
necessary to demonstrate that Sharkey’s settlement with Harbison pursuant to the
Compensation Act does not bar JBS and Swift from seeking contribution. The
Compensation Act limits how much JBS and Swift can recover from Sharkey but does not
entirely preclude their claim.
Sharkey attempts to carve out an exception to the precedent discussed above
which would functionally overturn the rule. Sharkey relies on dicta in Guerrero to argue
that once it settled with Harbison, all tort liability stemming from Harbison’s injury was
extinguished including the contribution claim. In Guerrero, the court rejected in dicta® the
argument that an employer’s liability is only partially extinguished by settling with an
employee. 321 Il.App.3d at 40. The court, interpreting Doyle, stated that an employer is
no longer “subject to liability in tort” to its employee once it settles with the employee

6 The Guerrero decision found that under Section 2(e) of the Contribution Act, a settlement between a party
and the widow of a deceased employee injured on-the-job barred the settling party from bringing a
contribution claim against the decedent’s employer. 746 N.E.2d at 852. Section 2(e) is not relevant here
because only Sharkey has settled with Harbison, not JBS and Swift. 740 ILCS 100/2 § 2(e).
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under the Compensation Act. Id. Sharkey takes this analysis and stretches it beyond its
scope. The analysis relies in part on language in the Contribution Act which states that a
right for contribution exists when one is “subject to liability in tort.” 740 ILCS 100/2(a)
(2005). Sharkey argues that because it settled with Harbison, it is no longer “subject to
liability in tort” and JBS and Swift's right to contribution no longer exists. This reasoning
is not persuasive. For one, Guerrero’s finding addressed an employer's liability to its
employee, not a third-party. Second, the Illinois Supreme Court has already determined
“the phrase in the Contribution Act, ‘subject to liability in tort’ . . . [does] not exempt
employers who pay workers’ compensation benefits to the injured employee.” Kotecki,
146 Ill.2d at 159 (citing Doyle, 101 Iil.2d at 10-11). Therefore, Sharkey’s Motion is denied
as to Count III.
Il. CONCLUSION
Accordingly, Sharkey’s Motion to Dismiss, (Doc. 36), is DENIED and its Motion
for Order, (Doc. 61), is Moot with entry of this Order. Sharkey has 21 days from the entry
of this Opinion to file an Answer to the Third-Party Complaint.
enter: Matc/)

LE “LAWLESS
UNI ATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11296005. Public record. Not legal advice.