Altom Transport, Inc. v. Westchester Fire Insurance Company et al

Filing 24

MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 5/18/2015:Mailed notice(rth, )

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ALTOM TRANSPORT, INC.,
Plaintiff,
v.
WESTCHESTER FIRE INSURANCE
COMPANY and MICHAEL STAMPLEY,
Defendants.

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No. 14-cv-9547
Judge Sharon Johnson Coleman

MEMORANDUM OPINION AND ORDER
Defendant, Westchester Fire Insurance Company (“Westchester”), moves to dismiss
plaintiff, Altom Transport, Inc.’s (“Altom”), complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim. Westchester argues that the complaint incorporated the
insurance policy at issue, and the policy clearly does not cover Altom for the underlying lawsuit.
Thus, Westchester asserts that it had no duty to defend and Altom’s complaint for coverage, breach
of the duty to defend, and attorney’s fees or statutory penalty under the Illinois Insurance Code. For
the reasons stated herein, the motion is granted.
Background
Altom is a federally licensed interstate motor carrier and hauls liquid commodities in tankertrailers. Westchester is Altom’s insurer. Altom purchased an ACE Express Private Company
Management Indemnity Package Insurance Policy (“policy”) from Westchester effective from
August 3, 2013, to August 3, 2014.
The policy has a Directors & Officers and Company coverage part which applied to
allegations that the Company (Altom), its principals, and/or officers are liable for wrongful conduct.

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The policy is a “claims made” policy, meaning it covers claims made during the policy period. The
insuring agreement provision states:
The Insurer [Westchester] shall pay the Loss of the Company [Altom Transport]
which the Company becomes legally obligated to pay by reason of a Claim first made
against the Company during the Policy Period or, if applicable, the Extended Period,
and reported to the Insurer pursuant to subsection E1 herein, for any Wrongful Act
taking place prior to the end of the Policy Period.
The policy contains the following relevant definitions:
1. Claim means:

***
(c) A civil proceeding against any Insured seeking monetary damages or nonmonetary or injunctive relief, commenced by the service of a complaint or
similar pleading;
***
9. Wrongful Act means any actual or alleged error, omission, misleading statement,
misstatement, neglect, breach of duty or act allegedly committed or attempted by:
***
(c) the Company, but only with respect to Insuring Clause 3 of this Coverage
Section.

Endorsement No. 14 amends the definition of Loss:
Loss means damages, judgments, settlements, pre-judgment or post-judgment interest
awarded by a court…
Westchester’s duty to defend is described in the policy as follows:
1. It shall be the duty of the Insurer and not the duty of the Insureds to defend any Claim.
Such duty shall exist even if any of the allegations are groundless, false or fraudulent. The Insurer’s
duty to defend any Claim shall cease when the Limits of Liability have been exhausted by the
payment of Loss including Costs, Charges and Expenses.
***
There are two relevant exclusions that preclude coverage for certain types of claims:
Insurer shall not be liable for Loss under this Coverage Section on account of any
Claim:
(m) alleging, based upon, arising out of, attributable to, directly or indirectly
resulting from, in consequence of, or in any way involving:
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(i) improper payroll deductions, unpaid wages or other
compensation, misclassification of employee status, or any violation
of any law, rule or regulation, or amendments thereto, that governs
the same topic or subject;
***
Insurer shall not be liable for Loss on account of any Claim:
(a) alleging, based upon, arising out of, attributable to, directly or indirectly
resulting from, in consequence of, or in any way involving the actual or
alleged breach of any contract or agreement; except and to the extent the
Company would have been liable in the absence of such contract or
agreement;
(Policy, Directors & Officers and Company Coverage Section C.1.m.(i), C.2.a, Dkt.
1-1 at 124, 125).
Defendant Michael Stampley was an independent operator truck driver for Altom. Altom
leased Stampley’s driving services. Altom terminated its lease agreement with Stampley on March 24,
2014, for service related failures. On May 21, 2014, Stampley filed a lawsuit against Altom in the
United States District Court for the Northern District of Illinois, case No. 1:14-cv-03747. In his
complaint, Stampley alleges that he and other owner-operator drivers similarly situated should have
been paid additional funds and that Altom wrongfully withheld such payments. (Dkt. 1-1, Complaint
at ¶ 11). Stampley alleges three causes of action in his complaint: (1) that the lease agreement used by
Altom violated 49 C.F.R. § 376.12 by failing to include aspects of the calculation of compensation;
(2) that Altom breached its agreement with Stampley and other owner-operators by failing to pay
compensation under the agreements; and (3) that Altom purportedly wrongfully enriched itself by
not paying Stampley and other drivers 70% of the gross.
Altom tendered the Stampley case to Westchester on May 23, 2014, requesting a defense and
indemnity. On July 14, 2014, Westchester denied coverage. Altom retained counsel and proceeded
to defend against Stampley. On October 14, 2014, Stampley submitted a “final” time-demand for
settlement to Altom in the amount of $1.9 million. The settlement demand, which was set to expire
on October 17, 2014, at 9:00 a.m., was within the Westchester policy limits. Altom tendered the
demand to Westchester and requested it reconsider its denial of coverage and settle the claim.
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Westchester did not respond and Stampley withdrew the settlement demand on October 21, 2014.
Stampley increased his demand to $2.3 million on October 27, 2014, with an expiration date of
October 31, 2014. Altom advised Westchester of the increased demand and requested that
Westchester cover the settlement. Westchester did not respond.
Altom filed the instant law suit against Westchester, alleging wrongful refusal of Duty to
Defend (Count I); imposition of estoppel, meaning Westchester is estopped from asserting any
defenses to coverage for the Stampley action if the claim is deemed to fall within the policy (Count
II); and relief under the Illinois Insurance Code, 215 ILCS 5/155 (Count III).
Legal Standard
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has facial
plausibility when the complaint’s factual content allows the Court to draw a reasonable inference
that the defendants are liable for the misconduct alleged. Id. Rule 10(c) provides that “a copy of a
written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.” Fed. R.
Civ. P. 10(c). “A plaintiff may plead himself out of court by attaching documents to the complaint
that indicate that he or she is not entitled to judgment.” In re Wade, 969 F.2d 241, 249 (7th Cir. 1992)
(citing Early v. Bankers Life and Casualty Co., 959 F.2d 75, slip op. at 5 (7th Cir. 1992)).
Discussion
Westchester asserts that the documents attached to the complaint show that Altom is not
entitled to judgment in its favor. Westchester makes three arguments in support of dismissal. First,
Westchester argues that the underlying lying lawsuit filed by Stampley against Altom is not covered
by the policy because the unpaid-compensation and breach-of-contract exclusions are unambiguous
and eliminate coverage for Stampley’s claims. Thus, Westchester claims it has no duty to defend
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Altom against that claim and it properly denied coverage. The second argument is that Altom is not
entitled to coverage by estoppel because Westchester had no duty to defend. Thirdly, Westchester
contends that Altom has no claim under section 155 of the Illinois Insurance Code because
Westchester has asserted a “legitimate policy defense” in the application of the policy exclusion to
the claims in the underlying lawsuit.
The parties agree that Illinois law governs the coverage dispute in this case. In an insurance
coverage declaratory judgment action brought in federal court in Illinois based on diversity, Illinois
contract law applies. Clarendon Nat. Ins. Co. v. Medina, 645 F.3d 928, 933 (7th Cir. 2011)(citing Hobbs
v. Hartford Ins. Co. of the Midwest, 214 Ill. 2d 11, 823 N.E.2d 561, 564, 291 Ill. Dec. 269 (Ill. 2005)).
When considering an insurance policy, courts aim to give effect to the intention of the parties based
on the plain language of the policy so long as doing so does not contravene public policy. Id.
In Illinois, a court resolves the question of whether a duty to defend exists by comparing the
facts alleged in the underlying complaint to the language of the insurance policy. State Farm Fire and
Casualty v. Young, 2012 IL App (1st) 103736, 968 N.E.2d 759, 763, 360 Ill. Dec. 266 (1st Dist. 2012).
If the facts alleged in the underlying complaint fall within or potentially within the policy’s coverage,
the insurer’s duty to defend arises. Outboard Marine Corp. v. Liberty Mutual, 154 Ill.2d 90, 108, 607
N.E.2d 1204, 1213, 180 Ill. Dec. 691 (1992). If it is clear from the face of the underlying complaint
that the allegations fail to state facts which bring the case within, or potentially within, the policy’s
coverage, there is no duty to defend. State Farm Fire and Casualty, 968 N.E.2d at 763. The underlying
complaint must be construed liberally in favor of the insured. U.S. Fidelity & Guaranty v. Wilkin
Insulation Co., 144 Ill.2d 64, 74, 578 N.E.2d 926, 930, 161 Ill. Dec. 280 (1991). Courts will apply as
written an exclusion provision in an insurance policy that is clear and unambiguous as long as it does
not contravene public policy. Nat'l Union Fire Ins. Co. v. R. Olson Constr. Contrs., 329 Ill. App. 3d 228,
233 (2d Dist. 2002).
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Here, Altom attached to its complaint the policy at issue as well as the Stampley complaint in
the underlying law suit. Both these documents are therefore considered part of the pleadings for this
Court’s evaluation of the legal sufficiency of Altom’s complaint. See Fed. R. Civ. P. 10(c).
Westchester contends that Stampley’s complaint in the underlying law suit falls under the exclusions
in the policy. As noted above, there are two relevant exclusions in the policy: the unpaidcompensation exclusion and the breach-of-contract exclusion.
This Court finds that the exclusions are clear and unambiguous and relieve Westchester of
the duty to defend under the policy. Stampley on behalf of himself and other similarly situated
owner operators filed a class complaint alleging that Altom failed “to disclose in the owner operator
agreements that Altom would be compensating Plaintiff and the other members of the Class based
upon an amount less than the actual gross amount applicable to the shipment, even though Plaintiff
and the other members of the Class were promised to be paid 70% of gross.” (Dkt. 1-1, Stampley
Complaint at ¶ 26). Stampley further alleges that “Altom violated § 376.12(d) by using owner
operator agreements that failed to identify or disclose that the amounts used to calculate owner
operator compensation would be less than the actual gross amount charged to Altom’s customer.”
Id. at ¶ 27. Stampley’s third claim for relief in the underlying complaint alleges unjust enrichment by
Altom based on the improper retention by Altom of compensation owed to Stampley and the
purported class members. Id. at ¶ 35.
These allegations clearly fall within the unpaid-compensation exclusion. They are based on
or arise out of “improper payroll deductions, unpaid wages or other compensation, misclassification of
employee status, or any violation of any law, rule or regulation, or amendments thereto, that governs the
same topic or subject”. (emphasis added). (Dkt. 1-1, Policy, Directors & Officers and Company
Coverage Section C.1.m.(i)). Altom argues that this exclusion applies only to claims brought against
Altom by employees and therefore does not apply to Stampley and the purported class because they
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were independent contractors. Altom’s argument must fail however because there is no language in
the policy that limits this provision to employees. As noted above, the Court will apply an exclusion
in an insurance policy as it is written if it is clear and unambiguous. If this Court were to read into
the exclusion a limitation to employees rather than to include any claim for unpaid compensation, it
would permit Altom to refuse payment to owner operators and pass the liability for unpaid
compensation onto its insurer.
Similarly, the breach of contract exclusion outlined above relieves Westchester of the duty to
defend. Stampley’s second claim for relief in the underlying lawsuit is for breach of contract.
Stampley alleges that “[t]he failure or refusal of Altom to pay Plaintiff and the members of the Class
70% of Gross constitutes a breach of contract between Altom and Plaintiff and the members of the
Class.” (Dkt. 1-1, Stampley Complaint at ¶ 32). This allegation fits squarely within the exclusion
because it alleges “breach of any contract or agreement”. Altom argues that Stampley’s claim does
not involve breach of contract because the fees it allegedly omitted from its compensation
calculation were for tank washes performed on equipment owned by Altom and therefore the
owner-operators were not entitled to those fees. This argument however is directed at the merits of
Stampley’s claim not the allegation that Altom breached its contract with the owner-operators by
improperly withholding compensation owed under the contracts. “Where the facts alleged, even if
false or groundless, are not within or potentially within the policy’s language, the insurer has no duty
to defend.” Ill. State Bar Ass'n Mut. Ins. Co. v. Cavenagh, 2012 IL App (1st) 111810, P20 (Ill. App. Ct.
1st Dist. 2012). Accordingly, this Court finds that Stampley’s claim for breach of contract falls under
the breach of contract exclusion in the policy and therefore Westchester has no duty to defend.
Because this Court finds, upon comparing the underlying complaint with the policy at issue,
that Westchester had no duty to defend because the claims fall within the policy exclusions.
Accordingly, denial of coverage was proper and Westchester will not now be estopped from
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asserting policy defenses. See Cavenagh, 2012 IL App (1st) 111810 at P29. Additionally, Altom is not
entitled to section 155 statutory relief. Section 155 provides for “an extracontractual remedy” of
attorney fees and costs for an insurer’s “unreasonable and vexatious” refusal to comply with its
policy obligations. Cramer v. Insurance Exchange Agency, 174 Ill. 2d 513, 523-24, 675 N.E.2d 897, 221
Ill. Dec. 473 (1996); 215 ILCS 5/155(1) (West 2008). “[W]here a bona fide dispute concerning
coverage exists, costs and sanctions [under section 155] are inappropriate.” State Farm Mutual
Automobile Insurance Co. v. Smith, 197 Ill. 2d 369, 380, 757 N.E.2d 881, 259 Ill. Dec. 18 (2001). Here,
there was undoubtedly a bona fide coverage dispute, this Court having found no duty to defend.
Conclusion
Based on the foregoing, Westchester’s motion to dismiss [12] is granted.
IT IS SO ORDERED.
Date: May 18, 2015
Entered: _________________________________
SHARON JOHNSON COLEMAN
United States District Judge

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