Sweis v. Travelers Casualty Insurance Company of America
Filing
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ENTER MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 12/30/2013. Mailed notice by judge's staff. (srb,)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NICHOLAS SWEIS, as co-trustee )
of the Sweis Living Trust,
)
)
Plaintiff,
)
)
v.
)
)
TRAVELERS CASUALTY INSURANCE )
COMPANY OF AMERICA; OVERMAN
)
INSURANCE AGENCY, LLC; and
)
LARRY D. BROWN, and
)
TERRI I. BROWN,
)
)
Defendants.
)
No. 13 C 7175
MEMORANDUM OPINION AND ORDER
Nicholas Sweis as co-trustee of the Sweis Living Trust
(“Sweis”) has sued Travelers Casualty Insurance Company of
America (“Travelers”), Sweis’ insurance broker Overman Insurance
Agency, LLC (“Overman”) and its two principals Larry and Terri
Brown (collectively “Browns), seeking insurance coverage for the
partial collapse of the roof structure at 526 E. 47th Street,
Chicago (the “loss location”).
Travelers has denied Sweis’ claim
because property coverage for the loss location was assertedly
never provided by Travelers under the commercial insurance policy
that Travelers had issued to Sweis (the “Policy”).
Travelers has
now moved for a Fed.R.Civ.P. (“Rule”) 12(c) judgment on the
pleadings, and Sweis’ recently filed Answer to that motion makes
the issue ripe for decision.
Both sides’ counsel have mistakenly cited N. Ind. Gun &
Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 452 (7th
Cir. 1998) as establishing the controlling criterion for decision
here.
Although that case correctly holds that a Rule 12(c)
motion is governed by the same standard as a motion to dismiss
for failure to state a claim under Rule 12(b)(6), counsel should
have been alerted by the case’s outdated teaching that such
motion may be granted only if “it appears beyond doubt that the
plaintiff cannot prove any facts that would support his claim for
relief” -- an overly generous principle that stems from the nowdiscredited decision in Conley v. Gibson 355 U.S. 41, 45 (1957).
Anyone who practices in the federal courts ought to know by now
that the Conley v. Gibson test has been supplanted by adding the
need for “plausibility” articulated in the Twombly-Iqbal canon.1
That aside, however, what is fatal to Sweis’ claim is that
he seeks to hang his hat on the Certificate of Property Insurance
(“Certificate”) issued by his insurance broker Overman, rather
than on Travelers’ policy, which concededly does not provide
insurance coverage covering the claimed loss.
Sweis has attached
the Certificate as Complaint Ex. C, and it is headed with this
express disclaimer:
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.
THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE
COVERAGE AFFORDED BY THE POLICIES BELOW.
In Illinois the strict enforceability of such a disclosure has
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Sweis has compounded the error by italicizing the word
“any” in the quoted language for emphasis.
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been squarely reconfirmed by the recent decision in Westfield
Ins., Co. v. FCL Buildings, Inc. 407 Ill.App.3d 730, 736-37, 948
N.E.2d 115, 120-21 (1st Dist. 2011), which discussed the earlier
Illinois caselaw in detail and concluded (citations omitted):
As in those cases, the certificate here expressly
confers no rights on the certificate holder, and it
expressly does not alter Westfield’s liability on the
policy in any way. FCL consequently cannot rely on the
certificate in order to establish that it is an
additional insured under the policy.
That language might well have been written for this case.
Sweis’ Memorandum of Law in opposition to Travelers’ motion
seeks to squirm out from under the fatal impact of that
disclaimer by stating his intention to have added property
coverage for the loss location to his commercial general
liability policy with Travelers.
But all that he can point to in
that regard is the asserted knowledge of that intention on the
part of Overman and the Browns.
That does Sweis no good at all, for his First Amended
Complaint at Law (“FAC”) expressly confirms that the insurance
broker was his agent.
Indeed, except for FAC Count I’s prayer
for a declaratory judgment against Travelers and the alreadyrejected FAC Count II breach of contract claim against Travelers,
all of the remaining Counts III through VII are advanced against
Overman and the Browns on theories of negligence, breach of
contract and respondeat superior, all stemming from their failure
to have obtained Sweis’ desired insurance coverage.
In sum, Travelers’ Rule 12(c) Motion is granted.
dismissed as a defendant.
It is
Because Travelers’ motion has not
spoken to the issue of a possible Rule 54(b) determination to
make the ruling here the predicate for a final judgment, this
Court will simply await any action that Travelers may choose to
advance in that respect.
__________________________________
Milton I. Shadur
Senior United States District Judge
Dated:
December 30, 2013
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