Lexington Insurance Company v. Chicago Flameproof & Wood Specialties Corp. et al

Filing 71

MOTION by Plaintiff Lexington Insurance Company, Counter Defendant Lexington Insurance Company for judgment UNOPPOSED MOTION FOR ENTRY OF JUDGMENT (Cassidy, Amy)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
LEXINGTON INSURANCE COMPANY,
Plaintiff,
v.
CHICAGO FLAMEPROOF & WOOD
SPECIALTIES CORP., JL SCHWIETERS
CONSTRUCTION, INC., and JL SCHWIETERS
BUILDING SUPPLY, INC.,
Defendants.

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Case No.: 17-cv-03513
Honorable Elaine E. Bucklo
U.S. District Judge

UNOPPOSED MOTION FOR ENTRY OF JUDGMENT
Plaintiff Lexington Insurance Company (“Lexington”), by and through its attorneys
Matthew J. Fink, Amy Collins Cassidy, Rebecca E. Bennett, and Nicolaides Fink Thorpe
Michaelides Sullivan LLP, respectfully moves this Court to enter judgment in its favor and
against Defendants JL Schwieters Construction, Inc. and JL Schwieters Building Supply, Inc.
(collectively “JL Schwieters”). In support of its motion, Lexington states as follows:
1.

Lexington initiated this declaratory judgment action to determine whether a

liability insurance policy issued by Lexington provided coverage to Defendant Chicago
Flameproof & Wood Specialties Corp. (“Chicago Flameproof”) for an underlying lawsuit
brought against Chicago Flameproof by JL Schwieters. (E.g., ECF Doc. No. 1, ¶¶ 1-2, 6-7, 1141).
2.

Lexington named JL Schwieters as a defendant in this case because JL Schwieters

is the plaintiff in the underlying lawsuit, and therefore potentially a necessary, but nominal, party
to Lexington’s declaratory judgment action against Chicago Flameproof. (ECF Doc. No. 1, ¶¶ 6-

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7); see, e.g., Fathers of the Order of Mount Carmel, Inc. v. Nat’l Ben Franklin Ins. Co. of Ill.,
697 F. Supp. 971, 973 (N.D. Ill. 1988). Lexington’s complaint contained one count directed
against Chicago Flameproof only. (ECF Doc. No. 1, ¶¶ 48- 62). Lexington’s complaint did not
contain any counts directed against JL Schwieters. (ECF Doc. No. 1).
3.

On August 10, 2018, this Court granted summary judgment in favor of Lexington

and against Chicago Flameproof, declaring Lexington owed no obligation to defend Chicago
Flameproof in the underlying suit. (ECF Doc. No. 53).
4.

This Court entered judgment on August 13, 2018. (ECF Doc. No. 54). The

judgment states that “[j]udgment is hereby entered . . . in favor of plaintiff(s) Lexington
Insurance Company and against defendant(s) Chicago Flameproof & Wood Specialties Corp.”
(ECF Doc. No. 54).
5.

Chicago Flameproof timely moved the Court pursuant to Federal Rule of Civil

Procedure 59(e) to reconsider the judgment. (ECF Doc. No. 55).
6.

The Court denied Chicago Flameproof’s motion for reconsideration on December

13, 2018. (ECF Doc. No. 64).
7.

Chicago Flameproof filed a notice of appeal on January 9, 2019. (ECF Doc. No.

8.

Pursuant to 28 U.S.C. § 1291(a), federal appellate courts have jurisdiction “of

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appeals from all final decisions” of the district court. “A final, appealable decision is one that
disposes of all claims against all parties.” Dale v. Lappin, 376 F.3d 652, 654 (7th Cir. 2004).
9.

Here, this Court’s August 10, 2018 memorandum decision and the resultant

August 13, 2018 judgment disposed of all claims and issues in the case in that it declared that the
Lexington policy at issue does not provide coverage for Chicago Flameproof for the underlying

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lawsuit brought by JL Schwieters. (ECF Doc. Nos. 54, 55). However, insofar as the August 13,
2018 judgment does not specifically state it is applicable against JL Schwieters, Chicago
Flameproof has raised a possibility that the judgment could be deemed non-final and nonappealable because it does not dispose of all parties.
11.

Accordingly, out of an abundance of caution, Lexington respectfully requests that

this Court enter a separate judgment against JL Schwieters to remove any possible jurisdictional
issue on appeal.
12.

Counsel for Lexington has communicated with counsel for both Chicago

Flameproof and counsel for JL Schwieters, and neither Chicago Flameproof nor JL Schwieters
objects to this motion or the relief Lexington seeks.
WHEREFORE, Plaintiff Lexington Insurance Company respectfully requests that this
Court enter a judgment pursuant to Federal Rule of Civil Procedure 58(a) in its favor and against
Defendants JL Schwieters Construction, Inc. and JL Schwieters Building Supply, Inc., declaring
that Lexington is not obligated to defend or indemnify defendant Chicago Flameproof & Wood
Specialties Corp. with respect to the underlying lawsuit, and accordingly judgment is entered in
favor of Plaintiff Lexington Insurance Company and against Defendants JL Schwieters
Construction, Inc. and JL Schwieters Building Supply, Inc..
Dated: January 25, 2019

Respectfully submitted,

/s/ _______________
Amy Collins Cassidy

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Matthew J. Fink
Amy Collins Cassidy
Rebecca E. Bennett
NICOLAIDES FINK THORPE
MICHAELIDES SULLIVAN LLP
10 S. Wacker Drive, Suite 2100
Chicago, IL 60606
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiff
Lexington Insurance Company

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CERTIFICATE OF SERVICE
I certify that on January 25, 2019, I caused a true and correct copy of the foregoing to be
served upon the following counsel of record by operation of the Court’s ECF System:
Michael J. Maher
Joshua E. Bidzinski
Swanson, Martin & Bell, LLP
330 North Wabash Street, Suite 3300
Chicago, Illinois 60611
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorney for Defendant Chicago Flameproof &
Wood Specialties Corp.
Elizabeth O. Bryant
Fletcher & Sippel LLC
29 North Wacker Drive, Suite 920
Chicago, Illinois 60606-2832
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Local counsel for Defendants JL Schwieters
Construction, Inc. and JL Schwieters Building
Supply, Inc.
Stacey L. Drentlaw
Leonard, O’Brien, Spencer, Gale & Sayre, Ltd.
100 South Fifth Street, Suite 2500
Minneapolis, Minnesota 55402
Tel: [phone]
Fax: [phone]
[e-mail]
Attorney for Defendants JL Schwieters
Construction, Inc. and
JL Schwieters Building Supply, Inc.

/s/ _______________
Amy Collins Cassidy

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