Alexandre Solomakha v. Safety International, LLC

In the

United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 19-2414 & 19-2395

THOMAS ROBERTS and DIANE ROBERTS,

Plaintiffs,

v.

ALEXANDRIA TRANSPORTATION, INC., et al.,

Defendants.

____________________

ALEXANDRIA TRANSPORTATION, INC., et al.,

Third-Party Plaintiffs-Appellants, Cross-Appellees,

v.

SAFETY INTERNATIONAL, LLC,

Third-Party Defendant-Appellee, Cross-Appellant.

____________________

Appeals from the United States District Court for the

Southern District of Illinois

No. 3:14-cv-1063 — J. Phil Gilbert, Judge.

____________________

ARGUED MAY 19, 2020 — DECIDED AUGUST 5, 2020

____________________

Before EASTERBROOK, BRENNAN, and ST. EVE, Circuit Judges.

2 Nos. 19-2414 & 19-2395

ST. EVE, Circuit Judge. At a road construction site in Madi-

son County, Illinois, a flagger abruptly turned his sign from

“SLOW” to “STOP.” Thomas Roberts slammed on his breaks,

and Alexandre Solomakha rear-ended him, causing Roberts

serious injury and prompting a lawsuit against Solomakha

and transportation companies Alexandria Transportation,

Inc. and Alex Express, LLC. 1 The Alex Parties filed a third-

party complaint for contribution against the general contrac-

tor for the construction site, Edwards-Kamalduski (“E-K”),

and a subcontractor, Safety International, LLC (“Safety”). E-K

settled with the plaintiffs, and the district court dismissed it

from the Alex Parties’ contribution action with prejudice. The

Alex Parties later settled with the plaintiffs, as well.

With E-K out of the picture, though, the Alex Parties’ case

becomes more complicated. The Alex Parties contend that the

Illinois Joint Tortfeasor Contribution Act, 740 ILCS 100 (the

“Contribution Act”), allows for the court to redistribute E-K’s

share of liability as determined by a jury between the Alex

Parties and Safety, but Safety disagrees. The controversy sur-

rounds the meaning of a particular phrase in the statute—

“unless the obligation of one or more of the joint tortfeasors is

uncollectable.” We can find no decision of an Illinois court

that has addressed whether the “obligation” of a settling

party is “uncollectable” pursuant to 740 ILCS 100/3. Rather

than decide this issue in the first instance, we respectfully re-

quest that the Illinois Supreme Court do so.

1 The parties have referred to Solomakha, Alexandria Transportation,

Inc., and Alex Express, LLC collectively throughout this litigation as the

“Alex Parties.” We continue to do so here.

Nos. 19-2414 & 19-2395 3

I. Background

Thomas Roberts was driving a truck westbound through

a construction zone on Interstate 70 in Madison County, Illi-

nois, when a work zone flagger suddenly turned a “SLOW”

sign to “STOP.” When Roberts abruptly slammed on his

brakes, Solomakha’s tractor rear-ended Roberts’s truck. Rob-

erts’ injuries resulted in medical bills totaling over $500,000.

Plaintiffs Thomas and Diane Roberts filed a complaint

against the Alex Parties for negligence under Illinois common

law in the United States District Court for the Southern Dis-

trict of Illinois, which sat in diversity jurisdiction. The Alex

Parties, in turn, filed a third-party complaint for contribution

against E-K, the general contractor for the road construction

project, and Safety, the subcontractor E-K retained through an

oral contract to manage (some disputed aspect of) the con-

struction site’s worker safety program. The plaintiffs settled

with E-K for $50,000, and E-K filed a motion for a good faith

finding pursuant to the Contribution Act. The district court

granted this motion and dismissed E-K with prejudice. The

Alex Parties then settled with the plaintiffs for a confidential

amount. That settlement released claims against Safety, as

well.

The Alex Parties continued with their contribution action

against Safety, which filed a motion for summary judgment,

arguing it owed no duty to the plaintiffs based on its oral con-

tract with E-K. The district court denied this motion, and the

Alex Parties and Safety proceeded to trial to resolve the Alex

Parties’ contribution claim. Before trial, the district court de-

termined that, as a matter of Illinois law, the Alex Parties,

Safety, and E-K all must appear on the verdict form so that

the jury could adequately apportion fault among every party,

4 Nos. 19-2414 & 19-2395

even though the court had dismissed E-K. The court also de-

termined, based on its interpretation of the Contribution Act,

the share of liability that the jury assigned to E-K should not

be redistributed between the Alex Parties and Safety on a pro

rata basis—instead, Safety would pay to the Alex Parties only

what the jury determined was its portion of fault, and the

Alex Parties would remain liable for E-K’s entire share along

with its own.

At trial, the Alex Parties and Safety disputed the scope of

the oral contract in which Safety agreed to provide services to

E-K. Safety, on one hand, contended that it agreed to provide

only services related to workers’ compensation insurance.

The Alex Parties, meanwhile, introduced evidence depicting

a broader agreement covering all site safety issues. The presi-

dent of Safety—Mike Sicking—admitted at trial that he au-

thored the Site Specific Safety Plan (“the Plan”), which E-K

submitted to the Illinois Department of Transportation. The

Plan identified Sicking as the job Safety Director and the “pri-

mary” contact “to help assist in day-to-day safety issues.” The

Plan also stated that “traffic control shall be in accordance

with the applicable sections of the standard specs for the road

and bridge construction, [and] the applicable guidelines con-

tained in the National Manual on Uniform Traffic Control De-

vices for Streets and Highways” (the “MUTCD”). Sicking ad-

mitted that he had agreed to perform a job hazard analysis for

each job description on the site, establish corresponding

safety procedures, and perform monthly audits to monitor

compliance. He sent a written proposal to E-K offering ser-

vices for $1,400 a month, and received that amount for his ser-

vices. Sicking explained, though, that E-K did not take ad-

vantage of all the services offered. Sicking admitted, for

Nos. 19-2414 & 19-2395 5

example, that he proposed to offer in-service safety training

to E-K’s employees, but that he never provided such training.

Sicking admitted that if he visited the construction site and

saw something unsafe, he had the authority to stop that prac-

tice. Thus, if the saw the site was missing a “flagger-ahead”

sign, he would have said something about it because it would

have presented a safety issue. A flagger failing to give proper

notice to oncoming drivers to stop was another such issue

where he would have intervened. Sicking further admitted he

was not on site on a daily basis and he never confirmed

whether the flaggers were compliant with the Plan.

In support of Safety’s theory, Sicking testified that the oral

contract between Safety and E-K did not involve traffic con-

trol or flagger training, as Sicking claimed he did not get in-

volved in flagging operations. Kevin Edwards, on behalf of E-

K, testified that the oral contract between E-K and Safety did

not provide for flagger training or designing traffic control

procedures because the flagger union trains the flaggers and

it was the duty of the contractor (in this case, E-K) to have

traffic control procedures in place.

After the conclusion of the trial, the jury determined the

respective percentage of fault for each party as follows:

10% Safety International

15% The Alex Parties

75% Edwards-Kamadulski

The Alex Parties were therefore on the hook for 90% of the

total liability for the accident—their share plus E-K’s. Safety,

meanwhile, was only obligated to contribute 10%. The district

court denied the Alex Parties’ post-trial motion to alter or

6 Nos. 19-2414 & 19-2395

amend the judgment under Federal Rules of Civil Procedure

59(e) and 52(b), which asked the court to revisit its determi-

nation of the reallocation issue. The court also denied Safety’s

post-trial motion for judgment as a matter of law under Rule

50(b), where Safety renewed its argument that the oral con-

tract it entered into with E-K did not create a duty to the plain-

tiffs.

The Alex Parties appealed, contesting the district court’s

resolution of the reallocation issue. Safety cross-appealed,

once again arguing that the district court erred in determining

it owed a duty to the plaintiffs.

II. Discussion

A federal court sitting in diversity jurisdiction must apply

the substantive law of the state in which its sits. Erie R.R. Co.

v. Tompkins, 304 U.S. 64 (1938). The parties agree Illinois law

governs this matter. We review a district court’s interpreta-

tion of state law de novo and the application of the legal

standard to the facts for clear error. e360 Insight, Inc. v. Spam-

haus Project, 658 F.3d 637, 648 (7th Cir. 2011).

We review a district court’s ruling on a Rule 50(b) motion

for judgment as a matter of law de novo, construing “the trial

evidence ‘strictly in favor of the party who prevailed before

the jury.’” Thorne v. Member Select Ins. Co., 882 F.3d 642, 644

(7th Cir. 2018) (quoting Empress Casino Joliet Corp. v. Balmoral

Racing Club, Inc., 831 F.3d 815, 822 (7th Cir. 2016)). “We give

the nonmovant ‘the benefit of every inference’ while refrain-

ing from weighing for ourselves the credibility of evidence

and testimony.” Ruiz-Cortez v. City of Chicago, 931 F.3d 592,

601 (7th Cir. 2019) (quoting EEOC v. Costco Wholesale Corp.,

903 F.3d 618, 621 (7th Cir. 2018)). Accordingly, “we must

Nos. 19-2414 & 19-2395 7

affirm unless there is ‘no legally sufficient evidentiary basis

for a reasonable jury to find for the non-moving party.’” J.K.J.

v. Polk Cty., 960 F.3d 367, 378 (7th Cir. 2020) (en banc) (quoting

Woodward v. Corr. Med. Servs. of Ill., Inc., 368 F.3d 917, 926 (7th

Cir. 2004)).

A. Safety’s Duty to the Plaintiffs

We begin our analysis with Safety’s cross-appeal, in which

Safety challenges whether the Alex Parties presented suffi-

cient evidence at trial to show that the oral contract between

Safety and E-K created a duty that Safety owed to the plain-

tiffs to ensure the safety of the construction site. If there is not

a sufficient evidentiary basis for the existence of this duty, the

Alex Parties’ contribution action against Safety is doomed.

Under Illinois law, “the negligent performance of contrac-

tual duties causing physical injury can give rise to tort liability

regardless of whether privity of contract exists between the

plaintiff and the defendant, and the scope of the defendant’s

duty is dependent on the terms of the contract.” Unger v. Eich-

leay Corp., 614 N.E.2d 1241, 1245 (Ill. App. Ct. 1993) (citations

omitted). In many contexts, Illinois courts have noted that a

contract defines the scope of a duty between a contractor and

the general public. See Thompson v. Gordon, 948 N.E.2d 39, 51–

52 (Ill. 2011) (contract between a general contractor and engi-

neering firm defined the scope of the engineering firm’s du-

ties to the general public); Ferentchak v. Vill. of Frankfort, 475

N.E.2d 822, 825–26 (Ill. 1985) (civil engineer had no duty to

homeowner to set foundation grades because his contract

with the land developer did not require him to do so); Block v.

Lohan Assoc., Inc., 645 N.E.2d 207, 224 (Ill. App. Ct. 1993)

(structural engineer did not a have a duty to ensure safety to

the employees of the general contractor where the contract

8 Nos. 19-2414 & 19-2395

with the general contractor was limited to design conform-

ance); O’Brien v. Musfeldt, 102 N.E.2d 173, 178 (Ill. App. Ct.

1951) (contract between engineering firm and the state cre-

ated a duty to the general public to install warning signs). In-

deed, contractors have “a duty to protect members of the pub-

lic from injuries in connection with construction work on

highways,” in particular. Mora v. State, 369 N.E.2d 868, 871–

72 (Ill. 1977) (collecting cases). 2

Where a negligence action derives from a contractual ob-

ligation, “[t]he question of whether a duty exists … is deter-

mined by the terms of the contract, and the duty, if any, will

not extend beyond that described in the contract.” Winters v.

Fru-Con Inc., 498 F.3d 734, 746 (7th Cir. 2007) (quoting Putman

v. Vill. of Bensenville, 786 N.E.2d 203, 208 (Ill. App. Ct. 2003));

see also Melchers v. Total Elec. Constr., 723 N.E.2d 815, 818 (Ill.

App. Ct. 1999). Ordinarily, the determination of whether a

duty exists is a question of law. Ward v. K Mart Corp., 554

N.E.2d 223, 226 (Ill. 1990). But the terms of an oral contract,

along with whether it exists, its conditions, and the intent of

2 Safety cites a handful of cases purporting to contradict the proposi-

tion that a contract can establish and define a duty between a contractor

and the general public, but none of them refute this statement of the law.

Indeed, in two of the cases Safety cites, the court held that a contract did

not create a duty to protect the general public from intervening criminal

acts specifically. See Sanchez v. Wilmette Real Estate & Mgmt. Co., 934 N.E.2d

1029, 1037 (Ill. App. Ct. 2010) (apartment complex did not undertake a

duty to protect tenants from harm by a third-party attacker); Chelkova v.

Southland Corp., 771 N.E.2d 1100, 1110 (Ill. App. Ct. 2002) (holding that a

franchisee was not liable to an employee who was assaulted on the prem-

ises, despite the franchisee undertaking to provide certain security

measures). This key factual difference distinguishes those cases from the

one we address today.

Nos. 19-2414 & 19-2395 9

the parties, are questions of fact for the jury to determine. Otto

v. Variable Annuity Life Ins. Co., 134 F.3d 841, 848 (7th Cir. 1998)

(citing Mulliken v. Lewis, 615 N.Ed.2d 25, 27 (Ill. App. Ct. 1993);

In re Estate of Kern, 491 N.E.2d 1275, 1280 (Ill. App. Ct. 1986)).

If the contract is ambiguous, the parties may introduce extrin-

sic evidence to help the factfinder interpret the contract. Kurti

v. Fox Valley Radiologists, Ltd., 464 N.E.2d 1219, 1226 (Ill. App.

Ct. 1984).

Here, there was sufficient evidence for a jury to conclude

that Safety entered into an oral agreement to provide E-K gen-

eral safety services, beyond those strictly pertaining to work-

ers’ compensation matters. The jury heard evidence that

Safety prepared and submitted a Site Specific Safety Plan to

the Illinois Department of Transportation designating Sicking

as the site Safety Director, making him responsible for “day-

to-day safety issues,” and committing to keeping traffic con-

trol in compliance with Occupational Safety and Health Ad-

ministration (“OSHA”) mandates and the MUTCD. The Alex

Parties also put forth evidence that Safety offered in-service

training about safety hazards in its proposal for $1,400 a

month, and that E-K paid that $1,400 a month. Sicking also

testified that if he saw an employee engaged in an unsafe

practice, such as improper flagging procedures, he had the

authority to stop that practice. And the jury heard that Sicking

had committed to devising safety procedures and performing

monthly audits to monitor compliance. All of this amounted

to a legally sufficient evidentiary basis for a jury to conclude

that the terms of the oral contract obligated Safety to ensure

the flaggers executed their duties in accordance with appro-

priate safety standards, through training, creation of proper

procedures, and monitoring.

10 Nos. 19-2414 & 19-2395

Safety raises two additional arguments, neither of which

succeeds. First, it argues that the Alex Parties failed to prove

that its settlement with the plaintiffs released Safety, which

the Alex Parties must do to prevail on their contribution

claim. But Safety and the Alex Parties stipulated that the set-

tlement released all claims against Safety, and Safety there-

fore cannot contest this point on appeal. Second, Safety argues

that the district court erred in denying Safety’s motion for

judgment as a matter of law because the Alex Parties alleged

in their third-party complaint that Safety had failed to train

and supervise its own employees and never amended their

complaint to allege a failure to train E-K’s employees. Alt-

hough Safety raised this argument before the district court, it

did so belatedly: the argument appears only in Safety’s post-

trial motion. Safety’s argument therefore came too late, and

Safety has waived it. Anderson v. Flexel, Inc., 47 F.3d 243, 247

(7th Cir. 1995) (“We have repeatedly stated that post-judg-

ment motions cannot be used to raise arguments or legal the-

ories that could have been and should have been brought be-

fore judgment.”).

B. Illinois Joint Tortfeasor Contribution Act

We next turn to whether the district court erred in con-

cluding that, pursuant to the Contribution Act, the share of

liability that the jury assigned to E-K should not be redistrib-

uted between the Alex Parties and Safety on a pro rata basis.

The Contribution Act states that “[n]o tortfeasor is liable to

make contribution beyond his own pro rata share of the com-

mon liability.” 740 ILCS 100/2(b). The Contribution Act con-

tinues,

The pro rata share of each tortfeasor shall be de-

termined in accordance with his relative

Nos. 19-2414 & 19-2395 11

culpability. However, no person shall be re-

quired to contribute to one seeking contribution

an amount greater than his pro rata share unless

the obligation of one or more of the joint tortfeasors

is uncollectable. In that event, the remaining tort-

feasors shall share the unpaid portions of the

uncollectable obligation in accordance with

their pro rata liability.

Id. § 3 (emphasis added). The district court deemed that E-K

was not an uncollectable party, and thus did not reallocate E-

K’s share of liability between the Alex Parties and Safety.

Thus, the key question from the Alex Parties’ appeal is the

meaning of the exception italicized above.

The Alex Parties point to § 2(d) of the Contribution Act,

which provides that a tortfeasor who settles with a claimant

in good faith “is discharged from all liability for any contri-

bution to any other tortfeasor.” Id. § 2(d). The plain language

of this provision, the Alex Parties contend, makes a settling

defendant—such as E-K—uncollectable in any future contri-

bution action. “Discharged,” however, does not necessarily

mean “uncollectable.” We are unable to find, at least, any in-

stance where an Illinois court has said it does.

Unfortunately, no precedent from the Illinois Supreme

Court (nor any appellate court in Illinois) addresses whether

the obligation of a settling party is uncollectable pursuant to

the Contribution Act. In Illinois Tool Works, Inc. v. Indep. Mach.

Corp., 802 N.E.2d 1228 (Ill. App. Ct. 2003), a case upon which

the Alex Parties heavily rely, Illinois Tool Works settled with

the underlying plaintiffs, and then pursued its contribution

claim against the remaining unsettled defendant. Id. at 1229–

30. But that defendant asserted that any liability owed in

12 Nos. 19-2414 & 19-2395

contribution was capped according to the amount of its stat-

utory liability under the Workers’ Compensation Act, 820

ILCS 305. Id. The statutory cap—not a party’s settlement, as

here—rendered the defendant’s obligation uncollectable. Id.

at 1231 (“[W]hile an employer may be subject to contribution,

its liability is strictly limited to the amount of its worker’s

compensation liability.”). Illinois Tool Works thus does not an-

swer the question before us.

The Alex Parties also cite to Ready v. United/Goedecke Servs.,

Inc., 905 N.E.2d 725 (Ill. 2008), but that case dealt with § 2-1117

of the Illinois Code of Civil Procedure, an entirely different

provision than the one at issue here. Id. at 728 (discussing 735

ILCS 5/2-1117). Indeed, that provision does not even include

the pivotal term “uncollectable.” And Coney v. J.L.G. Indus.,

Inc., 454 N.E.2d 197 (Ill. 1983), another case the Alex Parties

cite, interprets the relevant section of the Contribution Act,

but only as it applies to “insolvent or immune defendant[s].”

Id. at 206. That case does not define the meaning of the rele-

vant exception, nor does it resolve whether the obligation of

a settling party qualifies.

Without much by way of caselaw on their side, the Alex

Parties resort to public policy arguments, namely, that the dis-

trict court’s ruling discourages third-party plaintiffs from set-

tling with plaintiffs if they are “left holding the bag” for other

settling defendants. Safety counters that it should not be on

the hook for an amount to which the Alex Parties voluntarily

agreed, as the Alex Parties chose to settle with the plaintiffs

for an amount greater than their pro rata share. We agree with

the Illinois Supreme Court, however, that “[d]eciding be-

tween such competing policy positions is, in our view, a task

better left to the legislature.” Ready, 905 N.E.2d at 733.

Nos. 19-2414 & 19-2395 13

Given the possible impact of the resolution of this control-

ling issue on Illinois citizens, we decline to decide it in the first

instance and instead certify it to the Illinois Supreme Court.

“‘Certification of a controlling issue of state law to the highest

court of the state is one method of reducing the possibility of

error’ in trying to predict what course the state supreme court

might choose.” United States v. Glispie, 943 F.3d 358, 372 (7th

Cir. 2019) (quoting Allstate Ins. Co. v. Menards, Inc., 285 F.3d

630, 638 (7th Cir. 2002)). Illinois Supreme Court Rule 20 pro-

vides that, when it appears to “the United States Court of Ap-

peals for the Seventh Circuit[] that there are involved in any

proceeding before it questions as to the law of this State,

which may be determinative of the said cause, and there are

no controlling precedents in the decisions of this court, [the

Seventh Circuit] may certify such questions of the laws of this

State to this court.” Ill. S. Ct. R. 20(a). In this case, the question

of whether the obligation of a settling party is uncollectable

will determine whether the Alex Parties may recover more

than Safety’s pro rata share to account for E-K’s liability, and

thus will control the outcome of this appeal. We can find no

Illinois cases resolving this issue. We therefore respectfully

ask the Illinois Supreme Court to answer the question of

whether the obligation of a settling party is uncollectable pur-

suant to the Illinois Joint Tortfeasor Contribution Act, 740

ILCS 100/3 (2019).

We invite the Justices of the Illinois Supreme Court to re-

formulate our question if they feel that course is appropriate.

We do not intend anything in this certification to limit the

scope of their inquiry. The Clerk of this Court will transmit

the briefs and appendices in this case, together with this opin-

ion, to the Illinois Supreme Court. On the request of that

14 Nos. 19-2414 & 19-2395

Court, the Clerk will transmit all or any part of the record as

that Court so desires.

QUESTION CERTIFIED.