Westfield Insurance Company v. Indemnity Insurance Company of North America et al
Filing
119
OPINION: The Court directs Star Insurance Company to submit competent evidence, either affidavits or declarations from persons with personal knowledge or other competent documentary evidence, to establish the nature of Paule Firm's involvement i n the Underlying Action, including the identity of its client and the nature of the work performed for that client. Such information is necessary before the Court can determine whether Indemnity should be required to pay a pro rata share of the Paule Firm's fees and costs included in Star's calculation. The Court directs Star Insurance Company to submit such evidence by February 21, 2020. SEE ATTACHED OPINION. Entered by Judge Sue E. Myerscough on 01/16/2020. (SKN, ilcd)
E-FILED
Thursday, 16 January, 2020 02:37:42 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
WESTFIELD INSURANCE
COMPANY,
Plaintiff,
v.
INDEMNITY INSURANCE
COMPANY OF
NORTH AMERICA, et al.,
Defendants.
INDEMNITY INSURANCE
COMPANY OF
NORTH AMERICA,
Plaintiff,
v.
HOLLIS SHAFER et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
No. 16-cv-3298
No. 14-cv-3040
OPINION
SUE E. MYERSCOUGH, U.S. DISTRICT JUDGE:
Pending before the Court is Defendant/Counter-Plaintiff Star
Insurance Company’s (Star) Submission of Damage Calculations,
Including Prejudgment Interest (as Ordered by the Court) (Case No.
Page 1 of 6
16-3298 d/e 115, Case No. 14-3040 d/e 126) (Star Submission),
and Indemnity Insurance Company of North America’s (Indemnity)
Response and Objection to Calculation of Star Insurance Company
(Case No. 16-3298 d/e 116, Case No. 14-3040 d/e 127) (Indemnity
Objection). Star and Westfield Insurance Company (Westfield) paid
the costs to defend the Defendants in an underlying action Alvin
Marsh, et al. v. Brian R. Bradshaw, et al., Scott County, Illinois
Case No. 2010-L-3 (Underlying Action or Marsh Litigation). This
Court determined that Indemnity is obligated to pay a pro rata
share of the defense costs to Star and Westfield, plus prejudgment
interest. Opinion entered October 28, 2019 (Case No. 16-3298 d/e
111, Case No. 14-3040 d/e 121) (Summary Judgment Opinion).
The Court directed the parties to meet, confer, and submit an
agreed calculation of the fees and costs paid by Westfield and Star
to defend the Underlying Action, the pro rata share owed by
Indemnity to Westfield and Star, and the appropriate amount of
prejudgment interest. If the parties could not agree, the Court
directed the parties to file their own calculations. The Court would
then resolve the dispute and enter final judgment. Id. at 64-65.
Page 2 of 6
Indemnity and Westfield agreed that Indemnity’s pro rata
share of defense costs paid by Westfield and prejudgment interest
totaled $535,466.22. Agreed Calculation Regarding Fees and Costs
Pursuant to Opinion Dated October 28, 2019 (Case No. 16-3298
d/e 113, Case No. 14-3040 d/e 123), at 2. Star did not agree to the
$535,466.22 figure as Indemnity’s pro rata share of its defense
costs and accrued prejudgment interest. Pursuant to this Court’s
instructions, Star filed its own calculations in the Star Submission.
Star calculates Indemnity’s pro rata share and prejudgment interest
to be a total of $576,506.20. Star Submission, at 5.
Star claims that Indemnity’s pro rata share plus prejudgment
interest is $41,039.98 more than the amount that Indemnity and
Westfield agreed upon. A significant part of this difference in the
calculations relates to whether Indemnity should reimburse Star for
the $54,915.72 in fees and costs Star paid to the law firm of Paule
Camazine and Blumenthal (Paule Firm). See Plaintiff Star
Insurance Company’s Motion for Summary Judgment (Case No. 163298 d/e 93) (Star Summary Judgment Motion) (Case No. 14-3040
d/e 103), at 16. Indemnity disputes whether the Paule Firm
defended the Defendants in the Underlying Action.
Page 3 of 6
Star relies on evidence that conflicts on whether the Paule
Firm represented the Defendants in the Underlying Action. Star
relies on an affidavit of Star’s counsel in this action Mark
Zimmerman submitted as Exhibit V in support of the Star
Summary Judgment. Star Submission, at 2. Attorney Zimmerman
stated in this affidavit, in pertinent part:
2.
Attached hereto as Exhibit A are true and correct
copies of invoices from the Paule Camazine &
Blumenthal, P.C. ("Paule Camazine") law firm that were
contained in Star's claim file and produced by Star in
this litigation. The Paule Camazine Invoices reflect
certain fees and costs incurred in defending [Defendants]
in the Marsh Litigation.
Star Summary Judgment Motion, Exhibit V, Affidavit of Mark
Zimmerman, ¶ 2. Zimmerman states that the fees were incurred in
defending the Underlying Action. Star, however, also relies on the
affidavits of attorneys Edward Dwyer and Stephen Kaufmann, from
the law firms of Hodge, Dwyer, and Dwyer and Hepler Broom.
Dwyer and Kaufmann state that their two law firms represented the
Defendants in the Underlying Action. Star Summary Judgment
Motion, Exhibit R, Affidavit of Edward W. Dwyer in Support of Star
Insurance Company’s Motion for Summary Judgment dated June 6,
2019, ¶¶ 2-3, Exhibit U, Affidavit of Edward W. Dwyer dated June
Page 4 of 6
1, 2019, ¶¶ 3-6, and Exhibit T, Affidavit of Stephen R. Kaufmann,
¶¶ 3-6. Dwyer and Kaufmann nowhere indicate that the Paule Firm
defended the Defendants in the Underlying Action.
At this point, the Court cannot tell whether the Paule Firm
represented the Defendants in the Underlying Action, represented
Star, or represented some other client in connection with the
Underlying Action. Given the conflicting evidence, the Court cannot
tell whether Indemnity should be required to pay a pro rata share of
the fees that Star paid to the Paule Firm. The Court requires
additional evidence clarifying the nature of the Paule Firm’s
participation in the Underlying Action.
CONCLUSION
THEREFORE, the Court directs Star Insurance Company
to submit competent evidence, either affidavits or declarations
from persons with personal knowledge or other competent
documentary evidence, to establish the nature of Paule Firm’s
involvement in the Underlying Action, including the identity of
its client and the nature of the work performed for that client.
Such information is necessary before the Court can determine
whether Indemnity should be required to pay a pro rata share
Page 5 of 6
of the Paule Firm’s fees and costs included in Star’s
calculation. The Court directs Star Insurance Company to
submit such evidence by February 21, 2020.
ENTER:
January 16, 2020
s/ Sue E. Myerscough
UNITED STATES DISTRICT JUDGE
Page 6 of 6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?