Ritacca Laser Center v. Brydges
100 N.E.3d 569
Ill. App. Ct.2018Background
- Ritacca hired Ryan to remodel its office; Ryan engaged O’Hare Engineering to design and install HVAC systems. A December 2008 fire occurred days after reopening; investigation suggested an air filter was installed too close to an electric heating coil.
- Ritacca claimed three years of lost income and property damage and tendered claims to its insurer, Erie; Erie disputed business-interruption loss amounts and later settled with Ritacca for over $4 million, including a $3.5 million release of business-interruption claims.
- The construction contract between Ritacca and Ryan contained an Article 14 builders’-risk provision requiring owner-purchased "all-risk" builder’s risk insurance and a waiver of subrogation for "damages caused by perils covered by the insurance to be maintained pursuant to Paragraph 14(b)."
- Erie’s counsel advised Erie would not subrogate against O’Hare because the loss was caused by a peril covered by Ritacca’s insurance and was thus barred by the contract waiver; Erie’s policy covered both property damage and business-interruption (income) loss.
- O’Hare moved for summary judgment relying on the contract waiver and the insurance documents; Ritacca opposed, arguing the waiver applied only to property damage under builders’-risk insurance and did not bar claims for business-income loss under the commercial policy it actually purchased.
- The trial court struck Ritacca’s affidavits for noncompliance with Supreme Court Rule 191, granted O’Hare summary judgment, denied sanctions, and this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the contract’s waiver of subrogation bars Ritacca’s negligence claim against O’Hare | Waiver covers only perils insured under builders’-risk (property damage) and does not encompass business-interruption (income) loss; contract ambiguous and must be construed for the insured | Waiver unambiguously bars claims for "damages caused by perils" covered by separate property insurance, regardless of policy name or damage type; fire was a covered peril | Court: Waiver unambiguous; "damages" includes business-income loss; summary judgment for O’Hare affirmed |
| Whether trial court erred striking Ritacca’s affidavits under Rule 191 | Affidavits complied with Rule 191 and should not have been stricken | Affidavits were deficient; trial court properly struck them and gave leave to amend | Court: Record lacks hearing transcript; presumes trial court acted properly; moreover affidavits would not have changed contract interpretation |
| Whether defendant’s failure to attach local statement of undisputed facts required denial | Local rule requires short numbered paragraphs; failure prejudiced Ritacca | Any procedural violation was cured when defendant later filed the statement; trial court has discretion to excuse noncompliance | Court: No abuse of discretion; no showing of prejudice, so denial of motion was not required |
Key Cases Cited
- Purtill v. Hess, 111 Ill. 2d 229 (summary judgment standard and construction of record)
- Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90 (de novo review of summary judgment)
- Gallagher v. Lenart, 226 Ill. 2d 208 (contract interpretation principles)
- Thompson v. Gordon, 241 Ill. 2d 428 (plain-meaning rule and ambiguity threshold)
- Nicor, Inc. v. Associated Electric & Gas Insurance Services Ltd., 223 Ill. 2d 407 (when contract language is ambiguous)
- Foutch v. O’Bryant, 99 Ill. 2d 389 (appellant’s burden to provide complete record on appeal)
- VC&M, Ltd. v. Andrews, 2013 IL 114445 (trial court discretion to enforce local rules and impose sanctions)