Camico Mutual Insur v. Citizens Bank

In the
United States Court of Appeals
For the Seventh Circuit
____________

No. 06-2346
CAMICO MUTUAL INSURANCE COMPANY,
Plaintiff,
v.

CITIZENS BANK,
Defendant-Appellant,
v.

NAVARRO, ELISCO & O’CONNELL,
TERRANCE NAVARRO and LAURENCE ELISCO,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 7270—Suzanne B. Conlon, Judge.
____________
ARGUED DECEMBER 8, 2006—DECIDED FEBRUARY 2, 2007
____________

Before BAUER, FLAUM, and KANNE, Circuit Judges.
BAUER, Circuit Judge. In this accounting malpractice
action, Citizens Bank entered into a tolling agreement
with Navarro, Elisco & O’Connell, Terrance Navarro, and
Laurence Elisco (collectively, “the accounting firm”) that
provided, in part, that all statute of limitations defenses
and other defenses were tolled from the effective date of
the agreement, May 1, 2003, through the date of the
2 No. 06-2346

termination of the agreement, December 31, 2005. On
January 17, 2006, Citizens Bank filed an accounting
malpractice cross-claim against the accounting firm. The
accounting firm moved for summary judgment against
Citizens Bank, arguing that the cross-claim was barred
by the applicable two-year statute of limitations, which
the parties agree began to run in April 2003. The district
court granted the accounting firm’s motion. Citizens Bank
now appeals the entry of summary judgment in favor of
the accounting firm. We affirm.

I. Background
The accounting firm performed an audit of KMS Energy
International, Inc.’s (“KMS”) 2000 and 2001 financial
statements. At that time, the accounting firm was insured
under a professional liability policy by Camico Mutual
Insurance Company (“Camico”). KMS applied to Citizens
Bank for a loan, submitting its 2000 audited financial
statements and a draft of the 2001 audited financial
statements with its financial records. Citizens Bank
agreed to extend the loan to KMS in May 2002. On
October 15, 2002, Citizens Bank received notice from
another bank that it had observed suspicious activity in
KMS’s accounts. Citizens Bank investigated the activity
and subsequently declared the KMS loan in default and
foreclosed on all collateral.
On April 30, 2003, which the parties agree is the date
on which the statute of limitations began to run, Citizens
Bank informed the accounting firm of its belief that the
accounting firm was negligent in its preparation of KMS’s
financial statements. Thereafter, the accounting firm
notified Camico of Citizen Bank’s potential claim for
professional negligence, and Citizens Bank and the
accounting firm entered into the tolling agreement. After
unsuccessful settlement negotiations, Camico filed a
No. 06-2346 3

declaratory judgment action in the district court against
the accounting firm and Citizens Bank on December 29,
2005, seeking a resolution of disputed terms of the insur-
ance policy. On January 17, 2006, Citizens Bank filed its
cross-claim for professional negligence against the ac-
counting firm.
Citizens Bank and Camico filed motions for summary
judgment as to the disputed terms of the Camico policy
on January 27, 2006 and March 7, 2006, respectively. On
February 28, 2006, the accounting firm moved for sum-
mary judgment on Citizen Bank’s cross-claim, arguing that
the claims were barred by the statute of limitations. The
district court granted the accounting firm’s motion on
April 12, 2006, holding that the language of the tolling
agreement was unambiguous and that the agreement
removed the accounting firm’s right to assert specific
defenses, including the statute of limitations defenses,
while the agreement was effective. The district court
rejected Citizen Bank’s contention that the statute of
limitations stopped running while the tolling agreement
was in effect, explaining that the plain language of the
agreement precluded that argument. Having found that
Citizen Bank’s cross-claim was untimely, the district
court granted the accounting firm’s motion for summary
judgment. The district court further determined that the
insurance company faced no liability and found that the
complaint for declaratory judgment and the cross-motions
for summary judgment on the declaratory judgment ac-
tion were moot. On May 10, 2006, Citizens Bank filed a
timely appeal from the entry of summary judgment in
favor of the accounting firm.

II. Discussion
We review the district court’s grant of summary judg-
ment de novo. Durkin v. Equifax Check Services, Inc., 406
4 No. 06-2346

F.3d 410, 414 (7th Cir. 2005). Summary judgment is
appropriate if the “pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c).

A. Jurisdiction
Before turning to the merits of the appeal, we note that
we have diversity jurisdiction over this action pursuant
to 28 U.S.C. § 1332. While neither party raised the matter
of jurisdiction, we have an independent obligation to
ensure that jurisdiction exists. St. Paul Mercury & Indem.
Co. v. Red Cab Co., 303 U.S. 283, 287 n.10, 58 S.Ct. 586,
82 L.Ed. 845 (1938); Andrews v. E.I. Du Pont De Nemours
and Co., 447 F.3d 510, 514 (7th Cir. 2006).
The amended complaint alleged that the amount in
controversy exceeded $75,000. The amended complaint
further alleged that Camico is a California corporation
with its principal place of business in California and
that Citizens Bank is a Michigan corporation with its
principal place of business in Michigan. The amended
complaint also alleged that accounting firm is an Illinois
limited liability company (“LLC”). For diversity jurisdic-
tion purposes, the citizenship of an LLC is the citizenship
of each of its members. See Wise v. Wachovia Securities,
LLC, 450 F.3d 265, 267 (7th Cir. 2006). We were unable
to determine based on the pleadings whether the parties
are completely diverse, however, because the amended
complaint only alleged the residence of two of the account-
ing firm’s members without stating the citizenship of each
of the accounting firm’s members at the time this action
commenced. See McMahon v. Bunn-O-Matic Corp., 150
F.3d 651, 653 (7th Cir. 1998) (“An allegation of residence
is inadequate.”); Meyerson v. Harrah’s East Chicago
No. 06-2346 5

Casino, 299 F.3d 616, 617 (7th Cir. 2002) (“[R]esidence and
citizenship are not synonyms and it is the latter that
matters for purposes of diversity jurisdiction.”). After
responding to our requests for clarification, the parties
have resolved our concerns. Each of the accounting firm’s
members was a citizen of Illinois at the time this action
was filed. Accordingly, there is complete diversity among
the parties, and we have jurisdiction to resolve the appeal.

B. The Tolling Agreement
Turning to the substance of this appeal, Citizens Bank
argues that the district court erred in granting the ac-
counting firm’s motion for summary judgment on the
basis of its finding that the cross-claim was untimely.
Citizens Bank contends that the unambiguous language
of the tolling agreement established that while the tolling
agreement was in effect, the running of the limitations
period was tolled. As a result, Citizens Bank argues, the
district court should have treated the day after the
tolling agreement expired, January 1, 2006, as though it
were the day after the effective date of the tolling agree-
ment, May 2, 2003, which would result in a timely-filed
cross-claim. Under Illinois law, which the parties agree
governs, contracts are interpreted according to the “four
corners” rule: “[a]n agreement, when reduced to writing,
must be presumed to speak the intention of the parties
who signed it. It speaks for itself, and the intention with
which it was executed must be determined by the language
used. It is not to be changed by extrinsic evidence.” Davis
v. G.N. Mortgage Corp., 396 F.3d 869, 878 (7th Cir. 2005)
(citations and internal quotations omitted). In applying
this rule, we first look to the language of the contract
alone. Air Safety, Inc. v. Teachers Realty Corp., 185 Ill.2d
457, 462, 706 N.E.2d 882, 884 (Ill. 1999) (citing Rakowski
v. Lucente, 104 Ill.2d 317, 323, 472 N.E.2d 791, 794 (Ill.
6 No. 06-2346

1984)). If the language of the contract is clear and unam-
biguous, we interpret the contract without the use of parol
evidence, id., and contract terms are interpreted accord-
ing to their plain meaning unless otherwise defined. Utility
Audit, Inc. v. Horace Mann Serv. Corp., 383 F.3d 683, 687
(7th Cir. 2004) (citing Trade Center v. Dominick’s Finer
Foods, 304 Ill. App. 3d 931, 934, 711 N.E.2d 333, 335 (Ill.
App. Ct. 1999)). An ambiguity exists, however, if the
contract’s language is susceptible to more than one
interpretation. Air Safety, Inc., 185 Ill.2d at 462-63, 706
N.E.2d at 884. Only then is parol evidence admissible to
explain and determine the intent of the parties. Id.
As the district court correctly determined, the terms of
the tolling agreement are unambiguous. The relevant
portion of the tolling agreement states:
The Parties agree that all statute of limitations
defenses and other defenses relating to the time that
claims are asserted are tolled from the Effective Date
through the date of termination of this Tolling Agree-
ment. Nothing contained herein will be deemed to
renew, revive, resurrect or reinstate any claim that, on
the Effective Date, was already time barred.
Both parties agree that “toll” means to suspend or stop
temporarily; they disagree, however, as to what the
agreement tolled. Citizens Bank asserts that the statute
of limitations was tolled by the agreement, while the
accounting firm argues that only the statute of limitations
defenses and other defenses were tolled. The clear, un-
equivocal language of the tolling agreement resolves this
dispute: only the statute of limitations defenses and
other defenses were tolled. To find to the contrary would
require us to either eliminate the parties’ specific use of
“defenses” within the agreement or otherwise augment
the unambiguous agreement by including a provision
that specifically tolls the running of the statute of limita-
tions, neither of which we are permitted to do.
No. 06-2346 7

Citizens Bank argues, however, that this interpretation
of the tolling agreement produces an absurd result that
is contrary to our obligation to construe contract terms
as is “fair, customary, and such as prudent persons would
naturally execute.” Utility Audit, Inc., 383 F.3d at 687
(citing Foxfield Realty, Inc. v. Kubala, 287 Ill. App. 3d
519, 524, 678 N.E.2d 1060, 1063 (Ill. App. Ct. 1997)).
Citizen Bank contends that the parties had no need to
enter into the tolling agreement to toll the statute of
limitations defenses because as of the effective date of the
tolling agreement, the statute of limitations had just
begun to run. Because the accounting firm would not be
able to raise the statute of limitations as a defense for
nearly two years, Citizens Banks posits that the more
reasonable interpretation is that the parties agreed to
toll the statute of limitations. As recognized by the dis-
trict court, however, the tolling agreement provided
Citizens Bank with an eight-month extension from the
statutory expiration of the statute of limitations. Since
Citizens Bank received a benefit by entering into the
tolling agreement, our interpretation of the tolling agree-
ment does not produce an absurd or irrational result.
Additionally, our interpretation of the tolling agreement
is consistent with its recitals. These recitals state the
desire of the parties to “postpone or forego the costs and
expenses of litigation while determining whether the
claims can be resolved without litigation[,]” as well as
Citizen Bank’s desire to avoid the assertion of defenses
associated with delay in commencing litigation, whether
by way of statute of limitations, laches, estoppel, or other
defenses. The tolling agreement prevented the account-
ing firm from asserting such defenses until the expiration
of the agreement. That the parties were ultimately unsuc-
cessful in their negotiations did not eliminate the benefit
of the eight additional months that Citizens Bank received
to file its claim.
8 No. 06-2346

Citizens Bank also invites us to consider the April 30,
2003 letter sent by counsel for Citizens Bank to the
accounting firm to assist us in our interpretation of the
tolling agreement and the parties’ intent. We decline this
invitation, however, because the language of the tolling
agreement is subject to only one interpretation, and we
cannot add to or vary the terms of this unambiguous
agreement by reference to such extrinsic evidence. See
Davis, 396 F.3d at 878 (citing Sunstream Jet Express, Inc.
v. Int’l Air Serv. Co., Ltd., 734 F.2d 1258, 1265 (7th Cir.
1984)).
We agree with the district court’s conclusion that the
unambiguous language of the tolling agreement tolled
only the statute of limitations defenses and other de-
fenses. Because Citizens Bank failed to timely file its
cross-claim against the accounting firm, summary judg-
ment against Citizens Bank on its cross-claim was ap-
propriate.

III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of
the district court.

A true Copy:
Teste:

________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit

USCA-02-C-0072—2-2-07