United States District Court, N.D. Illinois, Eastern Division.

Carol Carpenter, Plaintiff,

v.

Sirva Relocation, LLC, a Delaware limited liability company, previously sued as Sirva, Inc., and Office Depot, Inc., a Delaware corporation, Defendants.

 

11 C 7623

1:11–cv–07623Filed December 9, 2013

 

Steven H. Jesser, Attorney at Law, Skokie, IL, Susan Von Nordheim, Attorney at Law, Chicago, IL, for Plaintiff.

 

Steven Alan Hart, Brian M. Nye, Keya Rajput Milla, Segal, McCambridge, Singer & Mahoney, Chicago, IL, Maxwell H. Brusky, Law Offices of Maxwell H. Brusky, Batavia, IL, for Defendant.

 

MEMORANDUM OPINION AND ORDER

Gary Scott Feinerman, United States Disrtict Judge

*1 Carol Carpenter brought this diversity suit against her employer, Office Depot, Inc., and its employee relocation contractor, SIRVA Relocation, LLC, asserting claims for breach of contract, fraudulent misrepresentation, negligent misrepresentation, breach of quasi-contract, promissory estoppel, and specific performance. Doc. 24. The court dismissed the fraudulent misrepresentation claim against Office Depot. Doc. 36. Now before the court are Office Depot’s and SIRVA’s motions for summary judgment. Docs. 69, 72. SIRVA’s motion is granted, and Office Depot’s motion is granted in part and denied in part.

 

Background

The facts are stated as favorably to Carpenter, the non-movant, as permitted by the record and Local Rule 56.1. See Hanners v. Trent, 674 F.3d 683, 691 (7th Cir.2012).

 

In 2004, Carpenter relocated from Portland, Oregon, to Chicago, Illinois, upon accepting a District Sales Manager position with Office Depot. Doc. 83 at p. 3, ¶ 7. After moving to Chicago, Carpenter and her husband, Kirk Carpenter, purchased a cooperative property (“the coop”) on the city’s North Side. Id. at p. 3, ¶ 8. In 2006, Carpenter applied to Office Depot for a District Sales Manager position in Portland, Oregon. Id. at p. 3, ¶ 9. Chris Lupo, who led Office Depot’s sales force in the Pacific Northwest Region, interviewed Carpenter, and Carpenter told Lupo of her desire to move to Portland to be closer to her family. Id. at p. 4, ¶ 10; Doc. 74–3 at ¶ 2. Carpenter did not ask Lupo about the relocation benefits to which she would be entitled if she were offered and accepted the Portland position, and nor did Carpenter tell Lupo that her acceptance of the Portland position was contingent upon the sale of the co-op. Doc. 83 at p. 4, ¶ 11. Lupo offered Carpenter the position, Carpenter accepted the position on or after May 26, 2006, and Lupo provided Carpenter with a confirmation letter memorializing the acceptance. Id. at p. 5, ¶¶ 12–13.

 

Office Depot contracted with SIRVA to handle the relocation process for eligible Office Depot employees. Id. at pp. 1–2, 5, ¶¶ 2, 14; Doc. 84 at p. 1, ¶ 2. The contract between SIRVA and Office Depot states that they are “[not] joint venturers, partners, or affiliates of each other and shall not be held responsible for each other’s actions or omissions except as expressly set forth in this agreement.” Doc. 76–1 at 9. As described in detail below, the relocation services provided by SIRVA include assistance to relocating Office Depot employees in selling their homes. This case concerns whether Carpenter was entitled to benefit from the Home Sale Buyout Program, under which the employee’s home would be purchased if it failed to sell after ninety days on the market.

 

On May 10, 2006, about two weeks before Carpenter accepted the Portland position, Office Depot Senior Manager of Global Mobility Lisa Eckelkamp sent an email to SIRVA Vice President Chris Cicen under the heading “Co Op buildings.” Doc. 84–2 at 15. Eckelkamp’s email asked: “Chris, how does Sirva handle condo’s that are in a Co Op building? We have a person [Carpenter] debating whether to move and asking whether we provide assistance on that?” Ibid. Cicen responded to Eckelkamp as follows:

 

*2 It used to be that they were just flat out not eligible for the homesale program, however, it is now a case by case. If the ownership board allows “us” (third party relocation company) to participate in buying and selling a property, we can bring through the program. Historically, there have been few governing boards that allow 3rd parties to be involved—but more and more are open to it today. The best thing to do is have the employee check w/ the Board to see if in fact a 3rd party company can be involved in the sale (or we can make the calls once authorized) and then we go from there.

 

Ibid. Cicen sent his email only to Eckelkamp. Ibid.; Doc. 84 at p. 3, ¶ 14. But Eckelkamp forwarded Cicen’s email to Carpenter on May 10 with this message: “Carol, please see the response from our Relocation company. The only way we can let the condo come through the program is if your Board allows third party relocation companies to be involved.” Doc. 84–2 at 15. About a week later, on May 16, Carpenter obtained her condo board’s approval to use a third-party relocation company to assist her in the sale of the co-op. Doc. 84 at p. 7, ¶ 2.

 

In the meantime, on May 11, Carpenter emailed Eckelkamp to say that she “tried to find the Relo. info on the intranet but couldn’t locate it” and to request that Eckelkamp send her the pertinent relocation information. Doc. 84–1 at 17. Eckelkamp responded by email that day, informing Carpenter that she qualified for Office Depot’s “Tier 2 program” and stating that “[t]his program consists of 3 components.” Doc. 84–1 at 19. Eckelkamp described the three components as follows:

 

1. Home Sale: OD [Office Depot] pays for home sale program—up to 7% Real Estate commission in addition to home sale closing costs. This expense is direct billed to Office Depot with zero tax liability to associate. (Qualifications for entry into program).

 

2. Household Goods Program: Pack, load, and delivery of all house items in addition to move of up to two vehicles. This is direct billed to OD with zero tax impact to associate. Tier 2 also has 90 days of storage available.

 

3. Lump Sum Program: Cash payment of all other benefits. This cash payment is less income taxes. (See excel Lump sum Breakdown Sheet) This Lump Sum is typically paid within the first two weeks of an approved Relocation.

 

Ibid. Eckelkamp’s email then states: “I have attached the official policy and the Lump Sum excel sheet.” Ibid.

 

The attached document, titled “Tier 2 Relocation Program,” states: “Office Depot provides an extensive relocation benefits program to provide you and your family with a network of support and services throughout your relocation process.” Id. at 20. The document also states: “Each phase of your move will be assigned to one of our relocation service providers, who will assist you throughout every step of your move.” Ibid. Under the heading “Home Sale Program Details,” the document states: “Office Depot partners with Sirva Relocation to provide a unique Home sale Program to our eligible relocating employees…. No Employee or new Hire should list their property without contacting the Relocation Department.” Id. at 21. Then, under the heading “Home Sale Buyout Program (Safety Net),” the document states:

 

Home Sale Buyout Program (Safety Net)

 

Sirva Relocation offer our Tier 2 relocating homeowners a ‘Buyout’ option on their home. On day 75 of marketing time two Relocation Appraisals are ordered. (The Appraisers are local independent Appraisers.) Relocation appraisals are very different than a bank or mortgage appraisal. Please see the article attached which explains the difference between appraisals. The buyout should be considered a last option to sell your home. Once the two appraisals are completed, at Day 90 you will be offered a purchase price for your home valued at 95% of the average of the two Appraisals. You would have 60 days after this day to accept the offer.

 

*3 Id. at 22.

 

Carpenter accepted the Portland position in reliance upon the May 10 Cicen email (which, as noted above, Eckelkamp had forwarded to her) and the email and “Tier 2 Relocation Program” document sent by Eckelkamp on May 11. Doc. 83 at pp. 12–13, ¶ 3; Doc. 84 at p. 7, ¶ 3. The facts in the previous sentence are set forth in Carpenter’s Local Rule 56.1(b)(3)(C) statements of additional facts. Because neither Office Depot nor SIRVA responded to Carpenter’s Local Rule 56.1(b)(3)(C) statements, the facts in those statements are deemed true for purposes of summary judgment. See N.D. Ill. L.R. 56.1(a)(3) (“If additional material facts are submitted by the opposing party pursuant to section (b), the moving party may submit a concise reply in the form prescribed in that section for a response. All material facts set forth in the statement filed pursuant to section (b)(3)(C) will be deemed admitted unless controverted by the statement of the moving party.”).

 

After Eckelkamp’s May 11 email exchange with Carpenter, and before Carpenter contacted SIRVA or accepted the Portland position, Eckelkamp sent Carpenter an overnight FedEx package with an information relocation guide titled “Tier 2 Relocation Program/Manager and Senior Manager Program.” Doc. 71 at ¶ 21; Doc. 83 at p. 8, ¶ 21. On its first page, the guide states:

 

The Company [Office Depot] reserves the right to end, suspend or amend the relocation policy. Further, the Company retains ultimate discretionary authority to interpret the provisions of this policy and to determine eligibility and benefits. This policy shall not be considered or construed as an employment contract and does not constitute a guarantee of employment for any minimum or specified period of time.

 

Doc. 71 at ¶ 22; Doc. 74–9 at 2. In a section titled “Property Eligibility,” the guide states that “[i]neligible homes may include … Co Op Properties.” Doc. 71 at ¶ 23; Doc. 74–9 at 10.

 

However, neither Carpenter nor her husband received a copy of the “Tier 2 Relocation Program/Manager and Senior Manager Program” guide before Carpenter accepted the Portland position. Doc. 83 at p. 8–10, ¶¶ 21–24, 27–28; id. at p. 13, ¶ 4; Doc 84 at p. 7, ¶ 4. Although Office Depot’s Local Rule 56.1(a)(3) statement asserts that Carpenter received a copy of the guide from Eckelkamp in 2004 (in connection with her move to Chicago) and from SIRVA in May 2006, and also that Carpenter saw the guide on the Office Depot intranet, the portion of the record cited by Office Depot—Eckelkamp’s averment that “[i]t was the custom and practice of the mobility services department to Fed–Ex mobility services documents, including [the guide], to all prospective transferees, so that our employees’ relocation decisions would be informed”—does not support those assertions. Doc. 71 at ¶ 24 (citing Doc. 74–8 at ¶ 18). Those assertions accordingly are disregarded. See N.D. Ill. L.R. 56.1(a)(3) (“The statement referred to in (3) shall consist of short numbered paragraphs, including within each paragraph specific references to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph.”). In any event, Carpenter denies having seen the “Tier 2 Relocation Program/Manager and Senior Manager Program” guide on the Office Depot intranet. Doc. 83 at pp. 8–9, ¶ 24.

 

*4 Carpenter’s May 11 email exchange with Eckelkamp was the last time Carpenter communicated with, requested information from, or had any discussions with Eckelkamp before relocating to Portland in June 2006. Id. at p. 9, ¶ 25. Carpenter does not dispute that she had no discussions with an Office Depot employee between May 11 and May 26 regarding her relocation benefits. Id. at p. 9, ¶ 26. Nor does Carpenter dispute that SIRVA’s internal client management system, Wintrac, shows that Kirk Carpenter contacted SIRVA on May 18, and that SIRVA “Fed–Ex’ed initial packet and additional Office Depot info out” on May 19. Id. at p. 9, ¶ 27. After May 11, 2006, nobody at SIRVA directly told Carpenter that the co-op was eligible for a buyout. Doc. 84 at p. 6, ¶ 21.

 

On or about May 18, Office Depot asked SIRVA to place Carpenter and the co-op in the relocation program. Id. at p. 2, ¶ 9. SIRVA acknowledged Office Depot’s request and initiated Carpenter’s relocation. Doc. 76 at ¶ 10; Doc. 84 at p. 2, ¶ 10. SIRVA arranged to move the Carpenters’ belongings from Chicago to Portland and arranged for third-party assistance in marketing the co-op. Doc. 76 at ¶ 11; Doc. 84 at p. 2, ¶ 11. Heather Bise was the SIRVA relocation counselor initially assigned to handle Carpenter’s relocation. Doc. 71 at ¶ 29; Doc. 83 at p. 10, ¶ 29. On July 26, Kiezieh McCullough replaced Bise as Carpenter’s relocation counselor. Doc. 71 at p. 10, ¶ 31; Doc. 83 at ¶ 31.

 

Starting on August 7, Carpenter exchanged a series of emails with McCullough in which she complained that her co-op was not being bought out. Doc. 76 at ¶ 17; Doc. 84 at p. 4, ¶ 17. McCullough stated that the co-op, because it was a co-op, was not eligible for the Home Buyout Program under the Tier 2 Relocation Program. Doc. 76 at ¶ 18; Doc. 84 at pp. 6–7, ¶ 18. This was the first time that Carpenter was told that the co-op was ineligible for the Home Sale Buyout Program. Doc. 84 at p. 7, ¶ 3.

 

On August 9, Carpenter sent Eckelkamp an email to ask why she was not being allowed to participate in the Home Sale Buyout Program. Doc. 76 at ¶ 19; Doc. 84 at p. 5, ¶ 19; Doc. 76–5 at 2–3. On September 15, Carpenter sent another email to Eckelkamp asking “if the contract that Office Depot signed with Sirva excludes certain properties, i.e. Co-ops.” Doc. 76–5 at 7. That day, Eckelkamp responded that “our contract does exclude co ops,” that Office Depot “had two people this year who could not enter into the buyout program,” and that “[t]his is not a SIRVA issue, [as] most relocation companies have exactly the same rules regarding co op properties.” Id. at 6.

 

Discussion

I. Breach of Contract (Count I)

Count I alleges that Defendants breached their contact with Carpenter by refusing to purchase the co-op under the Home Sale Buyout Program. Under Illinois law, a plaintiff alleging breach of contract must show: “(1) the existence of a valid and enforceable contract; (2) substantial performance by the plaintiff; (3) a breach by the defendant; and (4) resultant damages.” Reger Dev., LLC, v. Nat’l City Bank, 592 F.3d 759, 764 (7th Cir.2010) (quoting W.W. Vincent & Co. v. First Colony Life Ins. Co., 814 N.E.2d 960, 967 (Ill.App.2004)); see also Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 560 (7th Cir.2012); Roberts v. Adkins, 921 N.E.2d 802, 810 (Ill.App.2010); Kopley Grp. V., L.P. v. Sheridan Edgewater Props., Ltd., 876 N.E.2d 218, 226 (Ill.App.2007).

 

A. Office Depot

Carpenter argues that Office Depot’s contractual obligation to provide her a home buyout benefit upon her acceptance of the Portland position arises from Eckelkamp’s May 11 email and the attached “Tier 2 Relocation Program” document, which Eckelkamp called Office Depot’s “official policy” for relocation benefits. Doc. 85 at 4. As noted above, in a section titled “Home Sale Buyout Program (Safety Net),” the “Tier 2 Relocation Program” document states that an employee’s home will be purchased at 95% of its appraised value if it does not sell within ninety days of being placed on the market. In response to Carpenter’s submission, Office Depot maintains that the “Tier 2 Relocation Program” document was “purely informational” and “bereft of any of the elements required to establish a legal contract.” Doc. 70 at 3. Viewing the record in the light most favorable to Carpenter, the document contractually entitled Carpenter to the benefits of the Home Sale Buyout Program.

 

*5 Under Illinois law, “an employee handbook or other policy statement creates enforceable contractual rights if the traditional requirements for contract formation are present.” Duldulao v. St. Mary of Nazareth Hosp. Ctr., 505 N.E.2d 314, 318 (Ill.1987); see also Moss v. Martin, 473 F.3d 694, 700 (7th Cir.2007) (“Illinois law … recognizes that employee handbooks have the potential to form contracts between employers and workers”); Garcia v. Kankakee Cnty. Hous. Auth., 279 F.3d 532, 535 (7th Cir.2002) (same); Border v. City of Crystal Lake, 75 F.3d 270, 273 (7th Cir.1996) (same); Robinson v. Ada S. McKinley Cmty. Servs., Inc., 19 F.3d 359, 360–61 (7th Cir.1994) (holding that contractual obligations arose from an employment offer letter and an employee handbook); Mitchell v. Jewel Food Stores, 568 N.E.2d 827, 830–31 (Ill.1990) (holding that a manual describing employee benefits and policies “was sufficient to create a binding contract between defendant and plaintiff”). The circumstances under which an employee handbook or policy statement creates enforceable contractual rights are as follows:

 

First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after learning of the policy statement.

 

Border, 75 F.3d at 273 (citing Duldulao, 505 N.E.2d at 318); see also Cromwell v. City of Momence, 713 F.3d 361, 364 (7th Cir.2013) (same).

 

The summary judgment record shows that Office Depot sent the “Tier 2 Relocation Program” document to Carpenter while she considered relocating, that she was aware of its contents, and that she accepted the Portland position in reliance upon its contents. Doc. 83 at pp. 12–13, ¶¶ 1–3; Doc. 84 at pp. 6–7, ¶¶ 1–3. And a reasonable factfinder could conclude that the “Tier 2 Relocation Program” document and Eckelkamp’s May 11 email conveyed a promise clear enough that a reasonable employee would believe that she was entitled to benefit from the Home Sale Buyout Program. Eckelkamp’s email begins by stating that Carpenter “would qualify for [Office Depot’s] Tier 2 Program,” and concludes by informing Carpenter that Eckelkamp “ha[s] attached the official policy.” Doc. 76–2 at 1. The attached “Tier 2 Relocation Program” document states that as part of the relocation program, Office Depot, acting through SIRVA, “offer[s] our … relocating homeowners a ‘Buyout’ option on their home.” Id. at 4. After describing how the buyout option operates, the document states that “you will be offered a purchase price for your home valued at 95% of the average of the two Appraisals.” Ibid. The language describing the buyout program is not vague or equivocal, and nothing in the attachment indicates that co-op properties may be ineligible for a buyout. This is sufficient at the summary judgment stage to find that Office Depot contractually obligated itself to provide Carpenter with a home buyout benefit following her relocation.

 

Office Depot next argues that even if the “Tier 2 Relocation Program” document contains language sufficient to create a contract, the “Tier 2 Relocation Program/Manager and Senior Manager Program” guide contained an express disclaimer stating “that its terms did not constitute a contract between Office Depot and its employees.” Doc. 70 at 5. It is true that the guide contains that disclaimer and also that it cautioned that co-ops are ineligible for certain benefits. Doc. 74–9 at 2, 10. It is likewise true that “a disclaimer, if clear and forthright, … is a complete defense to a suit for breach of contract based on an employee handbook.” Workman v. UPS, Inc., 234 F.3d 998, 1000 (7th Cir.2000); see also Moss, 473 F.3d at 700 (“disclaiming language in a handbook may preclude the formation of an employment contract”); Garcia, 279 F.3d at 532 (“Disclaimers … are enough in Illinois to show that the handbook does not create legal rights.”); Border, 75 F.3d at 273 (same); Moore v. Ill. Bell Tel. Co., 508 N.E.2d 519, 521 (Ill.App.1987) (holding that the presence of a disclaimer in an employment document meant “it would not be reasonable for an employee to believe that defendant had made an offer”).

 

*6 The trouble with Office Depot’s argument is that the record, viewed with all genuine disputes resolved in Carpenter’s favor, shows that Carpenter did not receive or see the “Tier 2 Relocation Program/Manager and Senior Manager Program” guide before accepting the Portland position. And if Carpenter did not receive or see the guide, its provisions are not part of her contract with Office Depot. See Montgomery v. Ass’n of Am. R.Rs., 741 F.Supp. 1313, 1316 (N.D.Ill.1990) (Illinois law) (holding that where the plaintiff never received a copy of a policy manual preface containing a disclaimer, the plaintiff could reasonably have believed that the other portions of the policy manual constituted an offer); cf. Hanna v. Marshall Field & Co., 665 N.E.2d 343, 790–91 (Ill.App.1996) (“A personnel manual which is never disseminated to the employee cannot form the basis for a contract.”). The factual dispute over whether Carpenter received or saw the guide before accepting the Portland position precludes summary judgment for Office Depot based on the disclaimer. See Lawson v. Veruchi, 637 F.2d 699, 705 (7th Cir.2011) (“It is not for [the court] … to judge the credibility of … competing versions [of fact]—that is a question for the jury.”); Constr. Aggregates Corp. v. Hewitt–Robins, Inc., 404 F.2d 505, 509 (7th Cir.1968) (“the question of the existence of the terms of a contract should be submitted to a jury unless a reasonable man can determine the issue in only one way”); Mulliken v. Lewis, 615 N.E.2d 25, 28 (Ill.App.1993) (“what constituted the terms of the contract would be a question of fact for the jury”).

 

B. SIRVA

SIRVA argues that it is entitled to summary judgment on the contract claim because the undisputed facts establish that it had no contract with Carpenter. To show that she had a contract with SIRVA, Carpenter must show “offer, acceptance, and consideration.” Zemke v. City of Chicago, 100 F.3d 511, 513 (7th Cir.1996); see also Melena v. Anheuser–Busch, Inc., 847 N.E.2d 99, 109 (Ill.2006).

 

The only communication that the contract section of Carpenter’s brief identifies to support her position that she had a contract with SIRVA is Eckelkamp’s May 11 email and the attached “Tier 2 Relocation Program” document. Doc. 85 at 3–6. As discussed in Part I.A, supra, the email and document are sufficient at the summary judgment stage to establish a contractual obligation on Office Depot’s part to allow Carpenter to participate in the Home Sale Buyout Program. To determine whether a comparable contractual obligation was imposed on SIRVA, the court must take account of the fact that the email and document were sent to Carpenter by Office Depot (through its employee Eckelkamp), not by SIRVA. Indeed, there is no record evidence suggesting that SIRVA was even aware that Eckelkamp sent the May 11 email and “Tier 2 Relocation Program” document to Carpenter, and SIRVA’s first contact with Carpenter did not occur until a week later, on May 18, 2006. Doc. 84 at p. 2, ¶ 9. And the contract between SIRVA and Office Depot states that they are “[not] joint venturers, partners, or affiliates of each other and shall not be held responsible for each other’s actions or omissions except as expressly set forth in this agreement.” Doc. 76–1 at 9 (emphasis added). Given all this, Eckelkamp’s act of sending her May 11 email and the “Tier 2 Relocation Program” document to Carpenter did not contractually obligate SIRVA to buy out the co-op. See Mizuho Corp. Bank (USA) v. Cory & Assocs., Inc., 341 F.3d 644, 656 (7th Cir.2003) (affirming summary judgment for the insurer and finding that no contract with higher liability limits was formed where the insurer had “never communicated directly” on that subject with either the retail insurance broker or the bankrupt entity on whose behalf the broker had procured the policy); Hayes Mech., Inc. v. First Indus., L.P., 812 N.E.2d 419, 427 (Ill.App.2004) (holding that defendant property owner was not liable for the costs of renovation work arising from a contract between the plaintiff construction contractor and a tenant of the property where the property owner had “no contact with [the contractor] before or during the renovation project” regarding payment).

 

Carpenter argues in the alternative that even if she and SIRVA had no direct contractual relationship, “SIRVA had a contractual relationship with Office Depot to provide Office Depot’s employees with relocation services,” Carpenter “was clearly an employee of Office Depot at the time of the incident in question,” and “SIRVA failed to provide Office Depot and the plaintiff with the relocation services it was contractually liable to perform.” Doc. 85 at 6. Put another way, and without referencing the doctrine, Carpenter argues that she was a third-party beneficiary of the Office Depot–SIRVA contract.

 

*7 The argument fails on forfeiture grounds because Carpenter presents a skeletal argument and offers no supporting authority. The Illinois third-party beneficiary doctrine is subject to a strict “intent to benefit” test. See XL Disposal Corp. v. John Sexton Contractors Co., 659 N.E.2d 1312, 1316 (Ill.1995). “Under that test, it is not enough that a party receive merely an incidental benefit” from a contract between two other parties. Ahern v. Bd. of Educ. of City of Chicago, 133 F.3d 975, 983 (7th Cir.1998); see also People ex rel. Resnik v. Curtis & Davis, Architects & Planners, Inc., 400 N.E.2d 918, 920 (Ill.1980). In fact, “[t]here is a strong presumption that parties intend contract provisions to apply only to themselves.” Ahern, 133 F.3d at 983; see also 155 Harbor Drive Condo. Assoc. v. Harbor Point Inc., 568 N.E.2d 365, 375 (Ill.App.1991). To overcome the presumption, there must “be practically an express declaration” that a third party is an intended beneficiary of the contract. 155 Harbor Drive, 568 N.E.2d at 375; see also Johnson Bank v. George Korbakes & Co., LLP, 472 F.3d 439, 441 (7th Cir.2006) (“Parties to contracts are naturally reluctant to empower a third party to enforce their contract, so third-party beneficiary status ordinarily is not inferred from the circumstances but must be express.”); A.E.I. Music Network, Inc. v. Bus. Computers, Inc., 290 F.3d 952, 955 (7th Cir.2002) (“Third parties, that is, persons who are not parties to a contract, are permitted to enforce the contract if and only if the parties made clear in the contract an intention that they be permitted to do so.”). Carpenter’s brief does not even try to overcome this presumption, thus forfeiting the point. See Humphries v. CBOCS W., Inc., 474 F.3d 387, 407–08 (7th Cir.2007) (“We agree with the district court’s determination that [the plaintiff] waived (forfeited would be the better term) his discrimination claim by devoting only a skeletal argument in response to [the defendant’s] motion for summary judgment.”), aff’d on other grounds, 553 U.S. 442 (2008); Milligan v. Bd. of Trs. of S. Ill. Univ., 686 F.3d 378, 386–87 (7th Cir.2012); Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir.2011); Fabriko Acquisition Corp. v. Prokos, 536 F.3d 605, 609 (7th Cir.2008); Wojtas v. Capital Guardian Trust Co., 477 F.3d 924, 926 (7th Cir.2007); Kramer v. Banc of Am. Sec., LLC, 355 F.3d 961, 964 n.1 (7th Cir.2004); Stransky v. Cummins Engine Co., 51 F.3d 1329, 1336 (7th Cir.1995).

 

II. Fraudulent Misrepresentation (Count II)

As noted above, the court granted Office Depot’s motion to dismiss to dismiss the fraudulent misrepresentation claim against it. Doc. 36. SIRVA now seeks summary judgment on that claim. Doc. 73 at 7–10. Carpenter’s response brief does not defend her fraud claim against SIRVA, resulting in a forfeiture. See Milligan, 686 F.3d at 386–87; Alioto, 651 F.3d at 721; Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir.2010) (“Failure to respond to an argument—as the Bontes have done here—results in waiver.”); Humphries, 474 F.3d at 407–08.

 

III. Negligent Misrepresentation (Count III)

SIRVA argues that the economic loss doctrine—which “bars recovery in tort for purely economic losses arising out of a failure to perform contractual obligations,” Wigod, 673 F.3d at 567; see Moorman Mfg. Co. v. Nat’l Tank Co., 435 N.E.2d 443, 448–52 (Ill.1982)—defeats Carpenter’s negligent misrepresentation claim. Doc. 73 at 10–12. Although Carpenter’s brief defends the negligent misrepresentation claim against other arguments advanced by Defendants, it does not mention the economic loss doctrine, let alone explain why the doctrine does not apply to that claim. Doc. 85 at 6–7. Carpenter has thereby forfeited that claim. See Milligan, 686 F.3d at 386–87; Alioto, 651 F.3d at 721; Bonte, 624 F.3d at 466; Humphries, 474 F.3d at 407–08.

 

IV. Quasi–Contract/Unjust Enrichment (Count IV)

“In an action for ‘quasi-contract’ (or, contract implied in law), a plaintiff asks the court to remedy the fact that the defendant was ‘unjustly enriched’ by imposing a contract.” Vill. of Bloomingdale v. CDG Enters., Inc., 752 N.E.2d 1090, 1101 (Ill.2001); see also Fleissner v. Fitzgerald, 937 N.E.2d 1152, 1159 (Ill.App.2010) (same). “A contract implied in law does not depend on the intention of the parties, but exists where there is a plain duty and a consideration. The essential element is the receipt of a benefit by one party under circumstances where it would be inequitable to retain that benefit without compensation.” Champaign Cnty. v. Hanks, 353 N.E.2d 405, 408 (Ill.App.1976). “In Illinois, to state a cause of action based on a theory of unjust enrichment, a plaintiff must allege that the defendant has unjustly retained a benefit to the plaintiff’s detriment, and that defendant’s retention of the benefit violates the fundamental principles of justice, equity, and good conscience.” Cleary v. Philip Morris, Inc., 656 F.3d 511, 516 (7th Cir.2011) (internal quotation marks omitted). “Such an action is based on the principle that no one ought to enrich himself unjustly at the expense of another. Liability is based on the principle of unjust enrichment and the contract is the remedy.” Vill. of Bloomingdale, 752 N.E.2d at 1102; see also Midcoast Aviation, Inc. v. Gen. Elec. Credit Corp., 907 F.2d 732, 737 (7th Cir.1990) (“[q]uasi-contractual duties arise only in situations of unjust enrichment, situations where one person has received money or its equivalent under such circumstances that in equity and good conscience he ought not to retain it”) (internal quotation marks omitted).

 

A. Office Depot

*8 Carpenter cannot recover from Office Depot for the same injury under both contract and quasi-contract theories. “Under Illinois law, a plaintiff may not state a claim for unjust enrichment when a contract governs the relationship between the parties.” Borowski v. DePuy, Inc., 850 F.2d 297, 301 (7th Cir.1988) (internal quotation marks omitted); see also Hess v. Kanoski & Assocs., 668 F.3d 446, 455 (7th Cir.2012) (same); People ex rel. Hartigan v. E & E Hauling, Inc., 607 N.E.2d 165, 177 (Ill.1992) (“Because unjust enrichment is based on an implied contract, where there is a specific contract which governs the relationship of the parties, the doctrine of unjust enrichment has no application.”) (internal quotation marks omitted). However, a quasi-contract claim can proceed when there is a question of fact as to whether a contract governs the parties’ relationship. See Weyent v. Vertical Networks, Inc., 2004 WL 407017, at *2 (N.D.Ill. Feb. 4, 2004) (allowing a breach of contract claim and a quasi-contract claim to proceed when “it is a question of fact as to whether the contract governs the relationship between [plaintiff] and [defendant]”); Lilly v. Ford Motor Co., 2002 WL 84603, at *6 (N.D.Ill. Jan. 22, 2002) (allowing a breach of contract claim and a quasi-contract claim because “there is a good faith dispute as to whether an express warranty exists”). Because the existence of a home buyout contract between Office Depot and Carpenter turns on disputed factual questions that must be resolved at trial, Carpenter’s quasi-contract claim cannot be dismissed at this stage of the case on the ground that it is incompatible with her contract claim.

 

Office Depot argues that Carpenter “relocated [to Portland] for her own personal reasons” and that “Office Depot did not benefit from this relocation because it was a lateral transfer of a district sales manager within the company.” Doc. 70 at 12. Although this submission might win the day at trial, the court cannot conclude on summary judgment that Office Depot indisputably obtained no benefit from Carpenter’s transfer. Because the trier of fact could conclude that Office Depot “has unjustly retained a benefit [obtaining Carpenter’s agreement to transfer to Portland without allowing her to benefit from the Home Sale Buyout Program] to [Carpenter’s] detriment, and that [Office Depot’s] retention of the benefit violates the fundamental principles of justice, equity, and good conscience,” Cleary, 656 F.3d at 516, Carpenter’s quasi-contract claim against Office Depot survives summary judgment.

 

B. SIRVA

SIRVA is entitled to summary judgment on Carpenter’s quasi-contract claim. “To recover under [a quasi-contract] theory, plaintiffs must show that defendant voluntarily accepted a benefit which would be inequitable for him to retain without payment.” People ex rel. Hartigan, 607 N.E.2d at 177. By contrast to Office Depot, which accepted from Carpenter the benefit of her transfer to Portland, there is no evidence that SIRVA accepted anything from Carpenter. As Carpenter argues, an element of her quasi-contract claim is “the receipt by the defendant from the plaintiff of a benefit which it would be unjust to retain without paying compensation.” Doc. 85 at 7–8. It follows that SIRVA’s failure to purchase the co-op cannot amount to unjust enrichment. See Nat’l Casualty Co. v. White Mountains Reinsurance Co. of Am., 735 F.3d 549, 550 (7th Cir.2013) (“[t]o recover under a theory of unjust enrichment, [the plaintiff] must show that defendant … voluntarily accepted a benefit”) (internal quotation marks omitted).

 

For the sake of completeness, the court notes that Illinois law recognizes that a quasi-contract claim may proceed under certain limited circumstances where the defendant received a benefit from a third party rather than directly from the plaintiff. In HPI Health Care Servs., Inc. v. Mt. Vernon Hosp., Inc., 545 N.E.2d 672 (Ill.1989), the court held that although “[m]any unjust-enrichment cases involve situations in which the benefit the plaintiff is seeking to recover proceeded directly from him to the defendant,” a plaintiff may pursue an unjust enrichment claim where the benefit was transferred to the defendant by a third party if “(1) the benefit should have been given to the plaintiff, but the third party mistakenly gave it to the defendant instead, (2) the defendant procured the benefit from the third party through some type of wrongful conduct, or (3) the plaintiff for some other reason had a better claim to the benefit than the defendant.” Id. at 679 (internal quotation marks and citations omitted); see also Associated Benefit Servs., Inc. v. Caremark RX, Inc., 493 F.3d 841, 854 (7th Cir.2007) (same). Carpenter does not argue that any of these three circumstances are present here—indeed, as noted above, she argues that “the receipt by the defendant from the plaintiff of a benefit which it would be unjust to retain without paying compensation” is an element of her claim, Doc. 85 at 7–8 (emphasis added), without recognizing the exceptions carved by HPI Health Care Services —thereby forfeiting the point. See Milligan, 686 F.3d at 386–87; Alioto, 651 F.3d at 721; Bonte, 624 F.3d at 466; Humphries, 474 F.3d at 407–08. In any event, it does not appear from the record that Carpenter could benefit from any of those three exceptions. See Cole v. Cole, 2012 IL App (4th) 1 10842–U, 2012 WL 7018364, at *4 (Ill.App. Mar. 27, 2012) (holding on summary judgment that where none of the three exceptions applied, the plaintiff could not sustain his unjust enrichment claim based on a benefit bestowed by a third party on the defendant).

 

V. Promissory Estoppel (Count V)

*9 Under Illinois law, a promissory estoppel plaintiff must show that “(1) defendant made an unambiguous promise to plaintiff, (2) plaintiff relied on such promise, (3) plaintiff’s reliance was expected and foreseeable by defendants, and (4) plaintiff relied on the promise to its detriment.” Newton Tractor Sales, Inc. v. Kubota Tractor Corp., 906 N.E.2d 520, 523–24 (Ill.2009); see also Quake Constr., Inc. v. Am. Airlines, Inc., 565 N.E.2d 990, 1004 (Ill.1990) (same). “Promissory estoppel is not a doctrine designed to give a party … a second bite at the apple in the event that it fails to prove a breach of contract.” All–Tech Telecom, Inc. v. Amway Corp., 174 F.3d 862, 869–70 (7th Cir.1999) (internal quotation marks omitted). “Under Illinois law, a claim for promissory estoppel will only succeed where all the other elements of a contract exist, but consideration is lacking…. [T]o allow the doctrine of promissory estoppel to be invoked where consideration exists, becomes a gratuitous duplication or, worse, circumvention of carefully designed rules of contract law.” Dumas v. Infinity Broad. Corp., 416 F.3d 671, 677, 678 n.9 (7th Cir.2005) (internal quotation marks omitted); see also Wigod, 673 F.3d at 566 (“Promissory estoppel makes a promise binding where all the other elements of a contract exist, but consideration is lacking.”) (internal quotation marks omitted); Bank of Marion v. Robert “Chick” Fritz, Inc., 311 N.E.2d 138, 140 (Ill.1974) (holding that promissory estoppel applies only to serve “as a substitute for consideration or an exception to its ordinary requirements”). “It necessarily follows that where there is no issue of consideration, there is no gap in the remedial system for promissory estoppel to fill.” Dumas, 416 F.3d at 677 (internal quotation marks omitted); see also All–Tech Telecom, Inc., 174 F.3d at 869 (same).

 

A. Office Depot

Carpenter’s promissory estoppel claim against Office Depot fails because consideration indisputably is not lacking. Carpenter’s acceptance of Office Depot’s offer of the Portland position imposed identifiable obligations on both parties: Carpenter agreed to relocate to Portland and work for Office Depot, and Office Depot agreed to provide her with certain relocation benefits. (Although the nature of those benefits is disputed, it is undisputed that Office Depot promised to provide Carpenter with some benefits.) Given these mutual obligations, there was adequate consideration for the contract. See Wigod, 673 F.3d at 563–64; Dumas, 416 F.3d at n.9; Doyle v. Holy Cross Hosp., 708 N.E.2d 1140, 1145 (Ill.1999). Illinois law therefore forecloses Carpenter’s promissory estoppel claim against Office Depot. See Dumas, 416 F.3d at 678 n.9 (“The fact that consideration likely existed effectively extinguished any promissory estoppel claim that Dumas may have had.”); All–Tech Telecom, Inc., 174 F.3d at 869; Wagner Excello Foods, Inc. v. Fearn Intern, Inc., 601 N.E.2d 956, 965 (Ill.App.1992) (“[T]he plaintiff performed its part of the bargain and thereby rendered its consideration. There is no reason, therefore, to rely on promissory estoppel.”).

 

B. SIRVA

To prevail on her promissory estoppel claim against SIRVA, Carpenter must show that SIRVA “made an unambiguous promise to [her]” and that “[her] reliance was expected and foreseeable by [SIRVA].” Newton Tractor Sales, 906 N.E.2d at 523–24. The promissory estoppel section of Carpenter’s brief identifies only one communication that, according to Carpenter, constitutes an unambiguous promise by SIRVA to purchase the co-op: the May 10 email from Cicen to Eckelkamp, which Eckelkamp forwarded to Carpenter. Doc. 85 at 10–11. (Carpenter argues that the “Tier 2 Relocation Program” document attached to Eckelkamp’s May 11 email was an unambiguous promise by Office Depot ; she does not contend that the document reflected a promise by SIRVA. Id. at 10 (“The defendant Office Depot, made an unambiguous promise to the plaintiff, in a written document entitled ‘Tier 2 Relocation Program,’ on May 11, 2006.”).)

 

Cicen’s May 10 email cannot bear the weight that Carpenter places on it. Although Eckelkamp (of Office Depot) forwarded that email to Carpenter, Cicen (of SIRVA) had sent it only to Eckelkamp. Because Cicen did not send the email to Carpenter, and because there is no record evidence suggesting that Cicen intended that the email be forwarded to Carpenter, it cannot reasonably be said that the email contains an unambiguous promise from SIRVA to Carpenter. See Matter of Morris Paint & Varnish Co., 773 F.2d 130, 134 (7th Cir.1985) (“The doctrine of promissory estoppel may be invoked where … there is reliance by the party to whom the promise is made … and … the party to whom the promise is made relies upon the promise to his detriment”) (emphasis added); Bolden v. Gen. Accident, Fire & Life Assurance Corp., 456 N.E.2d 306, 309 (Ill.App.1983) (holding that where the plaintiffs never had “any promise [made] to them,” they were “not promisees and therefore … not authorized to bring an action in promissory estoppel”); Brook v. Oberlander, 199 N.E.2d 613, 617 (Ill.App.1964) (“the plaintiff corporation, not being the offeree, had no right to rely on defendant’s proposal”). For the same reason, nor can it reasonably be said that Carpenter’s reliance on the Cicen email was expected and foreseeable by SIRVA. See Levitt Homes Inc. v. Old Farm Homeowner’s Ass’n, 444 N.E.2d 194, 204 (Ill.App.1982) (holding that in an action for promissory estoppel, “[t]he reliance must be expected and foreseeable by the party making the promise ”) (emphasis added); Dale v. Groebe & Co., 431 N.E.2d 1107, 1111 (Ill.App.1981) (same). Accordingly, SIRVA is entitled to summary judgment on the promissory estoppel claim.

 

VI. Specific Performance (Count VI)

*10 Count VI, which is titled “Specific Performance,” is redundant of Carpenter’s other claims, as “specific performance is a remedy, not a cause of action.” LaSalle Nat’l Bank v. Metro. Life Ins. Co., 18 F.3d 1371, 1376 (7th Cir.1994); see also Chi. Police Sergeants Ass’n v. City of Chicago, 2011 WL 2637203, at *9 (N.D.Ill. July 6, 2011) (“injunctive relief and specific performance are remedies, not independent causes of action”) (internal quotation marks omitted); AT & T Capital Servs., Inc. v. Shore Fin. Servs., Inc., 2010 WL 2649874, at * 17 (N.D. Ill. June 30, 2010) (same); George v. Kraft Foods Global, Inc., 674 F.Supp.2d 1031, 1040 n. 11 (N.D.Ill.2009) (same); Am. Nat’l Bank & Trust Co. of Chi. v. Allmerica Fin. Life Ins. & Annuity Co., 2003 WL 1921815, at *4 (N.D.Ill. Apr. 21, 2003) (same). Accordingly, Carpenter cannot proceed at trial with a specific performance “claim.” That said, should Carpenter prevail at trial on either of her claims against Office Depot, she will be permitted to argue that specific performance is an appropriate remedy.

 

Conclusion

For the foregoing reasons, SIRVA’s summary judgment motion is granted, while Office Depot’s summary judgment motion is granted with respect to Counts III, V, and VI, and is denied with respect to Counts I and IV. The case will proceed to trial on Counts I and IV (contract and quasi-contract) against Office Depot.

 

Appellate Court of Illinois,

First District, Third Division.

Anne Marie EGAN, Independent Executor of the Estate of Sarah P. Conway, Deceased; James O’Toole, Independent Executor of the Estate of Kathleen O’Toole, Deceased; and Therese Heidkamp Joya, Independent Executor of the Estate of Mary Therese Heidkamp, Deceased, Plaintiffs–Appellants

v.

Lynnard McCULLOUGH, Hogan Dedicated Services, LLC, Hogan Personnel, LLC, and Joanne Steenveld, Defendants–Appellees.

 

No. 1–12–2475.

Dec. 11, 2013.

 

Appeal from the Circuit Court, Cook County, Illinois, No. 09 L 9162, Edward Washington, Judge Presiding.

 

OPINION

Presiding JUSTICE HYMAN delivered the judgment of the court, with opinion:

*1 ¶ 1 The executors of the estates of three women killed when the car they were passengers in collided with a truck in DeKalb, Illinois, filed a wrongful death action against the driver of the car, the driver of the truck, and the truck driver’s employer and its affiliates. Plaintiffs accused the driver of the car and the driver of the truck of traveling too fast for road conditions. Although evidence showed that both drivers were traveling below the posted speed limit, the plaintiffs argued that because it was snowing and the roads were icy, the drivers should have been driving even slower. The plaintiffs also alleged the truck driver was negligent in veering to the right and driving into a field in an effort to avoid the accident.

 

¶ 2 The jury returned a verdict in favor of all defendants. The jury also answered a special interrogatory as to the truck driver, finding him free from fault. Plaintiffs appealed arguing that in the absence of negligence on the part of the decedents, the circuit court erred in declining to instruct the jury that at least one of the defendants was negligent and thus liable to plaintiffs. But there were genuine issues of fact and liability for the jury to decide and the jury could find none of the defendants legally responsible for the deaths. The trial court did not err in refusing to instruct the jury that at least one defendant must be found liable for the accident that resulted in death of plaintiffs’ decedents. We affirm.

 

¶ 3 BACKGROUND

¶ 4 The tragic accident that gives rise to this case occurred on December 1, 2008. That morning, defendant Joanne Steenveld, age 70, left her home in Skokie, Illinois, and picked up three friends and fellow parishioners, Sarah Conway, Kathleen O’Toole, and Mary Heidkamp, on the north side of Chicago to travel to DeKalb for the funeral of a friend’s husband. Steenveld drove down I–294 south to I–88; she exited northbound on Peace Road, drove past the intersection of Fairview Drive and into the city of DeKalb. After attending the service and a luncheon, at about 2 p.m., the four women began their return trip to Chicago.

 

¶ 5 Since it had been snowing off and on for most of the day, snow had accumulated on the roads in the area, though the extent to which it affected driving conditions was a matter of dispute. Steenveld planned to take the reverse route she took earlier. She was driving south on Peace Road approaching the intersection of Fairview Drive when she lost control of her vehicle, slid across the center line, into the northbound lane in front of a tractor trailer driven by defendant Lynnard McCullough. McCullough stepped on his brakes and veered to the right into an adjacent field to try to avoid a collision. But Steenveld’s car continued to move in the direction of the field, and the vehicles collided there. Two of the car’s passengers, Sarah Conway and Mary Heidkamp, died at the scene. Kathleen O’Toole survived the accident, was transferred to a hospital where she underwent surgery, but never regained consciousness. She died three weeks later on December 24, 2008. Steenveld was injured and airlifted to a hospital for treatment and was later released.

 

*2 ¶ 6 On September 29, 2010, plaintiffs filed a second amended complaint against Steenveld, McCullough, and Hogan Dedicated Services, LLC, Hogan Motor Leasing, LLC, and Hogan Personnel, LLC (Hogan), McCullough’s employer and its affiliates. Plaintiffs alleged Steenveld and McCullough were negligent in operating their vehicles at speeds too fast for weather conditions and that McCullough was also negligent for leaving the roadway. Before trial, plaintiffs filed motion in limine number 13, asking the court to bar the parties, their attorneys, and witnesses from “[a]ny argument, evidence, reference or suggestion that anything other than the alleged negligence of the defendants caused or contributed to cause plaintiff’s injuries.” No objection was raised, and the circuit court granted the motion.

 

¶ 7 The evidence at trial showed that it was snowing on December 1, 2008, but witnesses presented conflicting testimony about the condition of Peace Road at the time of the accident. William Rozell was driving northbound on Peace Road, behind McCullough just before the accident. He testified that at 5 a.m. when he drove to work, southbound Peace Road was icy, causing his car to slide, but that when he was returning home at about 2 p.m., he had no problem controlling his vehicle. Rozell did not see McCullough’s truck sliding or weaving. Anthony Jovanovich was also driving northbound on Peace Road at the time of the accident, in the vicinity of McCullough’s truck. Jovanovich also testified that the roads were slushy and icy but that he had no problem controlling his vehicle. Illinois State Trooper James Glowinski, who responded to the accident, testified that the roads were slick but did not recall any ice. DeKalb County sheriff’s detective John Sistema, who arrived at the scene about 30 or 40 minutes after the accident, described Peace Road as “icy, slushy, slippery, treacherous.” Sheriff William Kominski testified that Peace Road is surrounded on both sides by farmland and “tends to ice up very quickly.” He stated that when he arrived at the scene, Peace Road was “very icy.”

 

¶ 8 Defendant Steenveld testified that when she drove from Chicago to DeKalb on the morning of December 1, 2008, it was snowing but that she had no difficulty controlling her vehicle. After leaving a luncheon following the funeral for the return trip home, Steenveld noticed it was snowing and that snow was accumulating on the road. Although she had no recollection of her speed, she testified that it would have been her custom to travel well below the posted 55 miles per hour speed limit in the snow or rain and estimated that she was driving about 35 miles per hour. There was no other evidence presented regarding the speed at which Steenveld was driving. Steenveld testified that she was traveling southbound on Peace Road and recalled seeing a sign for I–88 to Chicago but remembers nothing after that until she was put on a helicopter for transfer to St. Anthony’s Hospital in Rockford.

 

*3 ¶ 9 Lynnard McCullough testified that he is a professional truck driver and was working for Hogan on December 1, 2008. McCullough’s job that day required him to pick up a full trailer at the Target distribution center, about 500 yards form the intersection of Peace Road and Fairview Drive, deliver it to a Target store in Oak Lawn, Illinois, and return to the distribution center with an empty trailer. On his return trip, McCullough was traveling northbound on Peace Road in the vicinity of Fairview Drive when he first saw Steenveld’s car in the southbound lane. McCullough estimated his speed at about 35 to 40 miles per hour. Two witnesses, William Rozell and Anthony Jovanovich, who were driving behind McCullough estimated his speed at 40 to 45 miles per hour. The posted speed limit was 55 miles per hour. McCullough testified that when he first saw Steenveld’s car, it appeared to be under control. The next time he saw the car, however, he noticed the driver had lost control, was “fishtailing,” and crossing the centerline into the northbound lane. McCullough said he then applied his brakes to slow down the truck, in what he called a “controlled breaking” and steered toward the right and into a field east of the road. McCullough testified that he drove toward the right because the left was not an option, he did not think he could avoid the accident by continuing to drive straight, and he had been trained to avoid an oncoming vehicle by moving to the right if possible. McCullough said he then saw Steenveld’s car shoot across the northbound lane and into the field, where the front of his truck struck the passenger side of the car. The impact occurred about eight feet east of northbound Peace Road.

 

¶ 10 The police who investigated the accident found no fault with McCullough’s actions. DeKalb sheriff’s deputy Kaminski, who was a first responder to the accident, testified that witnesses at the scene told him there was nothing unusual about the speed of the truck before the accident. He also stated that based on his interviews and investigation, he concluded that McCullough was not driving too fast for road conditions. Deputy Kaminski testified that McCullough made an evasive move to try to avoid the accident and had no criticism of McCullough’s actions. Illinois State Police Trooper James Glowinski is a commercial vehicle officer and enforces United States Department of Transportation Regulations that apply to commercial motor vehicles in the State of Illinois, including those pertaining to driver qualifications and equipment regulations. Trooper Glowinski interviewed McCullough and inspected his truck. The inspection showed that there were no equipment violations and that the tractor trailer was in good mechanical condition with fully operational brakes.

 

¶ 11 Plaintiffs’ trucking expert witness, Michael Williams, testified that McCullough was negligent in failing to recognize that Peace Road was slick and icy. He estimated McCullough was traveling at 45 miles per hour, which he asserted was too fast for conditions. He opined that had McCullough been driving at 30 miles per hour or less, he may have been able to stop his truck and avoid the collision. On cross-examination, Williams acknowledged that the Illinois Vehicle Code (625 ILCS 5/1–100, et seq. (West 2010)) and federal regulations governing commercial motor vehicles did not require McCullough to drive 25 miles per hour below the posted speed limit. He also agreed no evidence existed that McCullough’s truck slid or that he had lost control. Williams acknowledged that a driver’s natural instinct when faced with an oncoming vehicle would be to steer to the right and that truck driving training manuals recommend truck drivers veer to the right when faced with oncoming vehicle, if possible. But Williams asserted that McCullough could have avoided the accident by veering toward the left and into a safety lane between the southbound and northbound lanes of Peace Road.

 

*4 ¶ 12 Defendants’ trucking expert, Lewis Grill, testified that McCullough moved at a reasonable speed because he breaked without sliding or losing control of the truck. Grill acknowledged that the commercial driver’s license study guide recommends that a truck drive reduce speed by 30% on wet roads but testified that McCullough did not need to do that as an experienced truck driver. He further stated that McCullough acted correctly in trying to slow down his truck and veering to the right when he saw a car enter his lane.

 

¶ 13 Plaintiffs’ accident reconstruction expert, Tom Feiereisen, presented three animated simulations regarding the accident. The first simulation showed how he believed the accident happened, assuming McCullough driving at 46 miles per hour and Steenveld riving at 45 miles per hour The second simulation showed that if McCullough had stayed in his lane while driving between 42 and 51 miles per hour and Steenveld’s car had been traveling 45 miles per hour, there would not have been a collision though it would have been close. Using a third simulation, Feiereisen asserted that if McCullough had been traveling 30 miles per hour or less and Steenveld driving 45 miles per hour, McCullough would have had much more time to react and could have easily stopped the truck and avoided the collision. On cross-examination, Feiereisen acknowledged that he would not advise drivers to continue driving straight when a car crosses the center line into their lane of travel. He also acknowledged that McCullough could not know what path Steenveld’s car would travel once it crossed the centerline and that he had only 1.5 seconds to perceive the dangerous situation, decide on an action plan, and then react.

 

¶ 14 During the jury instruction conference, plaintiffs tendered instruction number 31, a modified Illinois Pattern Jury Instructions, Civil, No. 3.06 (2011), relating to directed findings. Plaintiffs’ proposed modified IPI Civil No. 3.06 stated as follows:

 

“The Court has determined that this collision is not one that occurred in the absence of negligence and that one or more of the defendants is liable to the plaintiff. You will need to decide whether defendant, Joan Steenveld, or defendant Lynnard McCullough, Hogan Dedicated Services, LLC, and Hogan Personnel, LLC, or all of the defendants are liable to the plaintiffs.”

 

¶ 15 Plaintiffs argued that because motion in limine number 13, barring evidence or argument that anything other than defendants’ alleged negligence caused plaintiff’s injuries, was granted without objection and there was no allegation of contributory negligence on the part of Steenveld’s passengers, the only verdict that could be consistent with the evidence would be a finding that one or more of the defendants were negligent.

 

¶ 16 The circuit court denied plaintiffs’ proposed jury instruction. The court stated it would be improper to instruct the jury it had “determined that this collision is not one that occurred in the absence of negligence,” because it had not heard a directed verdict motion. The court further noted that neither driver had conceded negligence or liability and that the court never made a determination that one or both drivers did not have a viable defense. Finding that this was an issue for the jury to decide, the court concluded “[w]hen we look at this set of permutations of liability, just because this accident occurred does not mean that there has to be a verdict under all fact scenarios considered by this jury that at least one of these defendants is negligent, and I have not made that determination.”

 

*5 ¶ 17 On February 27, 2012, a unanimous jury verdict was entered in favor of all defendants. Without objection from plaintiffs, the circuit court permitted the jury to answer a special interrogatory that read, “Did Lynnard McCullough act as a reasonably careful person would act under the circumstances shown by the evidence?” The jury answered in the affirmative. Plaintiffs filed a posttrial motion for a new trial, which the trial court denied on July 18, 2012, finding “there were ample facts for the jury to come to the conclusion that it did in this case.” Plaintiffs timely appealed to this court, asking us to vacate the verdict and grant a new trial on all issues.

 

¶ 18 ANALYSIS

¶ 19 Standard of Review

[1][2] ¶ 20 Plaintiffs contend the trial court’s decision not to instruct the jury that it must find one of the defendants liable corresponds to the denial of motion for a directed verdict and, therefore, should be review de novo. Harris v. Thompson, 2012 IL 112525 ¶ 15, 364 Ill.Dec. 436, 976 N.E.2d 999 (“An adverse ruling on a motion for a directed verdict * * * * is reviewed de novo.”). We disagree. A trial court has discretion to determine which instructions to give the jury and that determination will not be disturbed absent an abuse of that discretion. Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201 Ill.2d 260, 273–74, 266 Ill.Dec. 892, 775 N.E.2d 964 (2002). A circuit court does not abuse its discretion regarding jury instructions if the instructions in their entirety “fairly, fully, and comprehensively apprise[ ] the jury of the relevant legal principles.” Id. at 273–74, 266 Ill.Dec. 892, 775 N.E.2d 964. A reviewing court ordinarily will not reverse a trial court for giving faulty instructions unless they plainly misled the jury and resulted in prejudice to the appellant. Id. at 274, 266 Ill.Dec. 892, 775 N.E.2d 964.

 

¶ 21 Jury Instruction

[3] ¶ 22 Plaintiffs argue that based on facts and evidence presented a trial, at least one of the defendants was negligent and thus liable for the death of plaintiff’s decedents. Plaintiffs assert that Steenveld’s counsel conceded that point when he stated during opening statements:

 

“On the issue of how this accident happened, who is responsible for it, you will have to decide based upon the evidence after you’ve heard from all the witnesses and all the experts as to whether Ms. Steenveld and Mr. McCullough are at fault or only one of them is at fault.”

 

¶ 23 Plaintiffs contend that since the three women who died in the accident bear no responsibility for it and there was no claim of contributory negligence, the trial court should have instructed the jury that it must return a verdict finding at least one of the defendants liable.

 

¶ 24 Plaintiffs also argue that their motion in limine 13 barring “any argument, evidence, reference or suggestion that anything other than the alleged negligence of the defendants caused or contributed to cause plaintiffs’ injuries,” which the trial court granted without objection, removed the possibility that anything other than the negligence of one or more of the defendants was liable for the accident. Plaintiffs contend that the trial court’s refusal to give jury instruction number 31 conflicted with the motion in limine and with the absence of any evidence at trial demonstrating a nonnegligent cause for the accident.

 

*6 ¶ 25 Plaintiffs acknowledge the rarity of the jury instruction they requested but rely on Millette v. Radosta, 84 Ill.App.3d 5, 26–27, 39 Ill.Dec. 232, 404 N.E.2d 823 (1980), as precedent. In Millette, defendant drove his car into plaintiff’s truck, injuring plaintiff. Defendant claimed that he lost control of the car because when he tried passing plaintiff’s truck on the left, the “car was simply steering itself.” Id. at 9, 39 Ill.Dec. 232, 404 N.E.2d 823. The car had been subject to a manufacturer’s recall due to a high likelihood of damage to the steering system, which, if not repaired, could cause loss of steering control. Id. at 9–10, 39 Ill.Dec. 232, 404 N.E.2d 823. Defendant testified he had gone to the dealership to replace the defective part more than once but was told the part was not in stock. Id. at 10, 39 Ill.Dec. 232, 404 N.E.2d 823. He also testified the dealer checked the car and told him not to worry about the steering system. Id. He testified no one told him to stop driving the car. Id.

 

¶ 26 The plaintiff truck driver sued the driver of the car, the car manufacturer, and the dealer. Id. at 7, 39 Ill.Dec. 232, 404 N.E.2d 823. The driver of the car counterclaimed against the other defendants. Id. On plaintiff’s motion, the trial court directed a verdict in plaintiff’s favor on the issue of contributory negligence. Id. at 18, 39 Ill.Dec. 232, 404 N.E.2d 823. The jury returned a verdict for the plaintiff and against all defendants and in favor of the driver of the car on his counterclaim against the manufacturer and dealer. Id. All of the defendants appealed the verdict arguing, in part, that the trial court erred in instructing the jury that it must find for the plaintiff and against one or more of the defendants and in giving the jury a verdict form that did not permit a not-guilty verdict as to all defendants. Id. at 26, 39 Ill.Dec. 232, 404 N.E.2d 823. As the appellate court stated, “[t]he basic question before this court is whether based on all the evidence a verdict for all three defendants could ever stand.” Id. The appellate court found that “it could not,” because: (1) as a matter of law, the plaintiff was not contributorily negligent and (2) there was no evidence of some unknown cause or intervening act of God. Id. The appellate court stated:

 

“ ‘[W]e believe a presumption of negligence does arise when the occurrence is shown to proceed from a performance of acts of such character, that when due care is taken, no injury ordinarily results from it. An automobile properly operated does not, under normal conditions, collide with another automobile or strike a building. Where two automobiles collide under normal conditions, it will be presumed that the collision occurred from the negligent operation of one or both colliding automobiles.’ “ Id. at 27, 39 Ill.Dec. 232, 404 N.E.2d 823 (quoting Krump v. Highlander Ice Cream Co., 30 Ill.App.2d 103, 105–07, 173 N.E.2d 822 (1961)).

 

¶ 27 Because a verdict for all three defendants could not stand, the appellate court found reasonable the trial court’s refusal to submit a verdict form allowing the jury to find all three defendants not liable. Id.

 

*7 ¶ 28 Plaintiffs contend that like the plaintiff in Millette, no negligence could be imputed to the three passengers here and there also was no evidence of some unknown cause or act of God. Therefore, the trial court should have instructed the jury that it could not return a verdict in favor of all defendants. This case is distinguishable in several key respects, however. First, while contributory negligence is not an issue on the part of the plaintiffs in either case, in Milette, the evidence showed that the car that caused the accident was defective and that all of the defendants knew that the defect could cause an accident. Therefore, in that case, the injuries arose from either a negligent driver, a negligent manufacturer that sold a defective car, or a negligent dealer that sold the car and did not advise the driver that it should not be driven. Absent that defect, the accident would not have happened. The defendants’ knowledge of the defect meant at least one of them was negligent.

 

¶ 29 Conversely, here, neither of the vehicles was defective and no one alleged advance knowledge by either driver of any problems that could cause an accident. The only allegations of negligence involved both drivers traveling too fast for road conditions and McCullough’s decision to drive off the road. Significantly, defendants did not concede those allegations. And the evidence at trial regarding the fact that both vehicles were traveling under the speed limit and McCullough’s decision to veer right when faced with an oncoming vehicle was uncontroverted. Steenveld, who could not remember the accident, testified that her custom and practice was to drive well below the speed limit in snow and guessed her speed at 35 miles per hour, a full 20 miles below the 55–miles–per–hour limit in effect on Peace Road. No witnesses challenged this assertion. McCullough testified to driving well below the speed limit at 35 or 40 miles per hour. Other witnesses estimated McCullough moving a little faster, at about 40 to 45 miles per hour. Deputy Kaminski, who investigated the accident, did not consider McCullough to have been driving too fast for road conditions, and he had no criticism of McCullough’s decision to veer right to try to avoid the accident. Other witnesses also acknowledged that maneuvering to the right when a car crosses over the center line and into the path of a truck comprised a normal response for a truck driver and a course of action recommended in truck driving training manuals.

 

¶ 30 That the accident did not occur under “normal conditions” constitutes another characteristic distinguishing this case from Millette. As plaintiffs tried to establish throughout the trial, snow covered Peace Road when the accident occurred, and witnesses offered differing opinions about the condition of the road and the effect it may have had on driving conditions. Therefore, unlike in Millette, it cannot be said that under the conditions present on Peace Road on December 1, 2008, an accident could not have happened unless one or both of the parties were negligent. Indeed, if a juror believed Steenveld’s testimony that she was driving only 35 miles per hour and the testimony of other witnesses who said that McCullough was driving 40 miles per hour and was not going too fast for road conditions, it follows that the accident could have happened even though neither party acted negligently.

 

*8 ¶ 31 Plaintiffs contend that motion in limine number 13, which barred the parties from presenting “any argument, evidence, reference or suggestion that anything other than the alleged negligence of the defendants caused or contributed to cause plaintiff’s injuries” precluded defendants from arguing that the weather rather than their own negligence was the cause of the accident. We disagree. Plaintiffs alleged defendants negligently drove too fast for conditions. This allegation necessarily required the jury to consider the nature of the conditions at the time of the accident. Throughout the trial, plaintiffs presented evidence and testimony about whether Peace Road was snow-covered and icy and whether other drivers in the area had difficulties controlling their vehicles. While defendants could not argue the weather was the per se cause of the accident, they were not precluded from arguing that, in light of the road conditions, their actions were not negligent.

 

[4] ¶ 32 Where a substantial factual dispute is disclosed by the evidence, the question of plaintiff’s due care or defendant’s negligence should be given to the jury for determination. Korpalski v. Lyman, 114 Ill.App.3d 563, 566, 70 Ill.Dec. 337, 449 N.E.2d 211 (1983). Here, as noted, a substantial amount of disputed evidence existed as to whether Steenveld or McCullough was driving too fast for conditions and whether McCullough should have driven off the highway to try to avoid the accident. As a result, it fell within the province of the jury to determine the negligence, if any, of the defendants. Therefore, the trial court did not abuse its discretion in refusing to grant the plaintiffs’ requested jury instruction.

 

¶ 33 Motion For a New Trial

[5][6][7][8] ¶ 34 In considering an appeal from a jury verdict, a reviewing court may not simply reweigh the evidence and substitute its judgment for that of the jury. Snelson v. Kamm, 204 Ill.2d 1, 35, 272 Ill.Dec. 610, 787 N.E.2d 796 (2003). A new trial should be granted only when the verdict goes against the manifest weight of the evidence. York v. Rush–Presbyterian–St. Luke’s Medical Center, 222 Ill.2d 147, 178, 305 Ill.Dec. 43, 854 N.E.2d 635 (2006) (citing Mizowek v. De Franco, 64 Ill.2d 303, 310, 1 Ill.Dec. 32, 356 N.E.2d 32 (1976)). A court of review will not reverse a circuit court’s decision with respect to a motion for a new trial unless it finds the circuit court abused its discretion, and the reviewing court must be “mindful that credibility determinations and the resolution of inconsistencies and conflicts in testimony are for the jury.” York, 222 Ill.2d at 179, 305 Ill.Dec. 43, 854 N.E.2d 635. An abuse of discretion occurs only if “no reasonable person would take the view adopted by the trial court.” Dawdy v. Union Pacific R.R. Co., 207 Ill.2d 167, 177, 278 Ill.Dec. 92, 797 N.E.2d 687 (2003).

 

¶ 35 We do not find the jury’s verdict against the manifest weight of the evidence or that the circuit court abused its discretion in denying plaintiffs’ motion. As we stated, Steenveld testified, without contradiction, to driving at 35 miles per hour, about 20 miles per hour below the posted speed limit. The evidence showed that McCullough similarly traveled below the speed limit, by 10 to 15 miles per hour. McCullough took evasive measures to try to avoid the accident by driving off the road, which he testified he was trained to do and which most witnesses agreed would be a driver’s natural instinct when faced with an oncoming vehicle. Although simulations showed that if McCullough had veered to the left or had been driving much slower the accident might have been avoided, the jury was still free to conclude that both drivers acted as a reasonably careful person under the circumstances, and were not negligent in causing the accident.

 

¶ 36 CONCLUSION

*9 ¶ 37 For the reasons set forth below, we affirm the circuit court.

 

¶ 38 Affirmed.

 

Justices NEVILLE and MASON concurred in the judgment and opinion.