Public Service Mutual Insurance Company v. Capitol Transamerica Corporation

Filing 53

MOTION by Plaintiff Public Service Mutual Insurance Company for judgment in the Amt of $71,744.11 on Count I of the Complaint (Attachments: # 1 Exhibit 1-2)(Fishman, Howard)

Public Service Mutual Insurance Company v. Capitol Transamerica Corporation

Doc. 53

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

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PUBLIC SERVICE MUTUAL INS., CO.,

Individually and as Subrogree of
KENARD MGMT. CO.,

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Plaintiff
v.
CAPITOL TRANSAMERICA CORP.,

d/b/a CAPITAL INDEM. CORP.,

Defendant

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NO. 09 C 2829

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PLAINTIFF'S MOTION FOR ENTRY OF JUDGMENT IN THE AMOUNT OF ... .. $71,744.11 ON COUNT I OF THE COMPLAINT
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N,?w..comes the Plaintiff, Public Service Mutual Insurance Company ("PSMfI) and

hereby moves',,thl$ Honorable Court for entry of judgment in the amount of $71,744.11 on "'..: :

Count I of Plaintiff's Complaint. Consistent with this Court's Memorandum Opinion and
Doçket Entry dated November 17, 2010 (attached hereto as Exhibit 1), this Court should
enter judgment against the defendant, Capitol Transamerica Corp. ("Capitol) on Count I in
the amount of

$71,744.11 because this figure represents 50% of the defense fees and

costs. PSM has incurred in connection with defending Kenard in the Underlying Lawsuit. 1

As grounds in support of this Motion, PSM states as follows:
1.
On November 17, 2010, this Court entered a Memorandum Opinion and
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Docket Entry that "Capitol and PSM must share the cost of Kenards defense 50/50,
Plaintiff reserves the right to seek an amendment of this Judgment because there wil be at least

one additional. invoice from counsel retained by PSM to defend Kenard in the Underlying Lawsuit.
Additionally, this Judgment relates only to Count I of the Complaint and there are remaining claims which must be resolved.

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including fees and costs that PSM has already expended defending Kenard in the

Underlying Lawsuit." Exhibit 1, Docket Entry and Memorandum Opinion.
2. To date, PSM has incurred $143,488.23 defending Kenard in the Underlying

Lawsuit (Doyle v. Kenard). Exhibit 2, Affdavit of Scott Edwards, Regional Claims Manager
for PSM. These costs include attorneys' fees, expert fees and court reporting costs. The
costs were necessary and appropriate to defend Kenard from the wrongful death

allegations in the Underlying Lawsuit. The costs were fair and reasonable. Exhibit 2.
3. By letter dated November 2, 2010, PSM demanded repayment of defense
costs and fees (as well as all of the fees incurred in connection with this Federal Court

litigation). Exhibit 3, letter to Linda Spring, Esquirei dated November 21 2010 (without

attachments). The November 2, 2010 correspondence included all invoices and checks
relating to the payments made by PSM to defend Kenard in the Underlying Lawsuit.
4. . Following this Court's recent Memorandum Opinion and Docket Entry, PSM

made a formal demand for Capitol to reimburse PSM for $71,744.11 (or 50% of the
$143,488.23) PSM has incurred to date.
5. This Court should enter Judgment for PSM on Count I for $71,744.11

because this represents 50% of the $143,488.23 PSM has incurred to defend Kenard in the

Underlying Litigation. Pursuant to the Court's Memorandum Opinion and Docket Entry
dated November 17, 2010, Capitol is obligated to reimburse PSM for $71,744.11 and there
is no valid reason for Capitol's continued refusal to comply with the Court's Order. Capitol

has had all invoices and supporting documentation relating to the costs and fees for

approximately one month. Moreover, the costs incurred by PSM were fair and reasonable
under the circumstances.

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WHEREFORE, the Plaintiff respectfully requests that this Honorable Court enter

judgment for PSM on Count I of the Complaint for $71,744.11.

Respectfully. submitted,

Plaintiff, Public Service Mutual Insurance Company
By: lsI John A. Donovan III

One of its attorneys
Dated: 12-1-2010
Admitted Pro Hac Vice

John A. Donovan III
Sloane and Walsh, LLP

Three Center Plaza Boston, MA 02108 [phone] [phone]

Howard J. Fishman (Ilinois Bar No. 6216066)
Aronberg Goldgehn Davis & Garmisa

330 North Wabash, Suite 1700 Chicago, IL 60611 [phone]
[phone] (Fax)

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