Northland Insurance Co. v. Malibu Limousine, Inc. et al

Filing 43

MOTION by Plaintiff Northland Insurance Co. for judgment (Attachments: # 1 Exhibit Judgment)(Valentino, Richard)

3006379-RTV IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

NORTHLAND INSURANCE CO., a Minnesota corporation, Plaintiff, v. NO: 08 C 2901 MALIBU LIMOUSINE, INC., an Illinois corporation, HINSDALE COACH LIMOUSINE, an Illinois corporation, ROBERT HOBERG and DONALD MROZEK, Defendants. MOTION FOR ENTRY OF JUDGMENT PURSUANT TO SETTLEMENT Plaintiff, NORTHLAND INSURANCE COMPANY ("Northland"), by its attorneys, SmithAmundsen LLC, pursuant to FRCP 55 and 58, moves the Court for entry of judgment in its favor, and against Malibu Limousine ("Malibu"), Hinsdale Coach Limousine ("Hinsdale"), Robert Hoberg ("Hoberg") and Donald Mrozek, ("Mrozek"), and for dismissal without prejudice of the Third Party Complaint filed by Malibu against Third Party Defendant Kamberos & Associates, Inc. ("Kamberos") and, in support of said Motion, states as follows: 1. On May 19, 2008, Northland filed its Complaint for Rescission against

Defendants Malibu, Hinsdale, Hoberg and Mrozek.

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2.

Northland's complaint sought to rescind a policy of Public Auto Liability

Insurance issued to Patrick Miceli ("Miceli"). Subsequent to the issuance of the Northland policy, Miceli incorporated his business as "Malibu Limousine, Inc." 3. Northland's complaint alleged that the Application for the Northland

policy contained material representations regarding the identity of drivers who would operate the insured limousine ("limo") and that the application misrepresented that the limo would be operated only by Miceli when, in fact, it was not Miceli's intent to operate the limo himself, but rather to give possession and control of the limo to Hinsdale, for operation by one or more of Hinsdale's drivers. Hoberg was the driver of the limo at the time of the accident in which Mrozek was injured.
4.

On October 1, 2008, Hinsdale and Hoberg were defaulted for failure to

appear or plead with respect to Northland's complaint. (CM/ECF Doc. 27.) 5. On June 19, 2009, Northland, on the one hand, and Malibu and Mrozek, in

the other hand, reached an agreement to settle their differences, as part of a larger settlement which also includes the underlying Mrozek suit. All matters in controversy between Northland, Malibu and Mrozek have been resolved. As a part of the settlement, Mrozek and Malibu agree that Northland is entitled to a judgment rescinding its policy. Also, for the court's information, the settlement will terminate the potential tort liability of Hoberg and Hinsdale Limousine in the underlying Mrozek suit as well. 6. Malibu has filed a third party complaint against Kamberos, alleging that

Kamberos negligently completed the application for the Northland policy. As of the preparation of this Motion, a dispute still exists between Malibu and Kamberos and the

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settlement does not bear on said dispute. The controversy between them is between nondiverse citizens and does not involve a sum in excess of $75,000. 7. Attached hereto as Exhibit 1 is a proposed Judgment prepared by

Northland and agreed to by Malibu and Mrozek. WHEREFORE, for the reasons set forth herein, Northland prays that the court enter judgment in its favor, rescinding its policy, dismiss the third party complaint of Malibu against Kamberos, without prejudice to Malibu's right to refile suit in State Court, and for such further relief as the Court deems just.

Respectfully submitted, NORTHLAND INSURANCE COMPANY

By:

s/Richard Valentino One of Its Attorneys

Richard T. Valentino, Esq. SmithAmundsen LLC 150 North Michigan Avenue Suite 3300 Chicago, IL 60601 Phone: [phone] FAX: [phone]

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CERTIFICATE OF SERVICE

Richard T. Valentino, an attorney, certify that on July 21, 2009, he electronically filed the foregoing Motion with the Clerk of the Court using the CM/EMF system which will send notification of such filing(s) to the parties listed below. s/Richard T. Valentino

SERVICE LIST Northland Insurance v. Malibu Limousine, Incorporated, et al. No. 08 CV 02901 Attorney for Malibu Limousine, Incorporated Timothy James Murray Tinkoff, Popko and Associates 413 East Main Street Barrington, IL 60010 Phone: [phone] Attorney for Donald Mrozek Amy Hemmingsen Garretson Santora Urgo & Nugent, Ltd. 2 North LaSalle Street Suite 1100 Chicago, IL 60602 Phone: [phone] Attorney for Kamberos & Associates Insurance Agency, Inc. Dennis J. Kellogg, Esq. The Law Offices of Dennis J. Kellogg 105 West Madison Street Suite 1300 Chicago, IL 60602 Phone: [phone] FAX: [phone]

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