Turubchuk et al v. E.T. Simonds Construction Company et al

Filing 222

ORDER DENYING Motion for Judgment as a Matter of Law filed by E.T. Simonds Construction Company. (Doc. 202 ). Signed by Judge Staci M. Yandle on 4/14/2017. (mah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

LILIYA TURUBCHUK, et al.,

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Plaintiffs,
vs.
E.T. SIMONDS CONSTRUCTION
COMPANY, et al.,
Defendants.

Case No. 12-CV-594-SMY-SCW

MEMORANDUM AND ORDER
Pending before the Court is Defendant E.T. Simonds Construction Company’s (“ETS”)
Motion for Entry of Judgment Consistent with this Court’s January 31, 2017 and February 3,
2017 Orders (Doc. 202). For the following reasons, the motion is DENIED.
This action is premised on alleged misrepresentations and fraud. Specifically, Plaintiffs
seek to recover damages from Defendants ETS and Southern Illinois Asphalt Company
(“SIAC”) for Defendants alleged misrepresentations regarding their insurance coverage in an
underlying action which sought damages for injuries sustained by Plaintiffs following a single
vehicular accident. On January 31, 2017, the Court granted in part Plaintiffs’ motion for
summary judgment (Doc. 199). Defendants’ motions for summary judgment were denied on
February 3, 2017 (Docs. 200, 201). In the Orders, the Court found that Defendants’ failure to
identify and provide their individual policies with their initial disclosures violated the
requirements of Rule 26. The Court also concluded that a joint venture did not exist between the
defendants as to the relevant construction project.
ETS asserts that it is now entitled to judgment as a matter of law based on the Court’s
determination that no joint venture existed. Specifically, ETS contends that pursuant to the Joint
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Venture Agreement entered into between it and SIAC, SIAC was solely responsible (and
therefore solely negligent) for the lanes where the accident occurred. ETS argues that any
alleged misrepresentation regarding its available individual insurance policies is therefore
irrelevant because those policies would not have been available to satisfy any judgment or
settlement in favor of the Plaintiffs.
ETS’s argument misses the mark. In this case, Plaintiffs are not pursuing a negligence
claim against the defendants resulting from the accident. Rather, Plaintiffs seek damages for
fraud and Defendants’ alleged negligent and/or intentional misrepresentations in failing to
disclose their individual policies in the underlying action. Plaintiffs allege that if Defendants had
disclosed the individual policies, Plaintiffs would not have settled for the “policy limits” of the
joint venture policy – the only policy disclosed to them.
Whether ETS would have ultimately been successful in the underlying action did not
eradicate its duty under Rule 26 to disclose its individual policies and is not determinative of its
liability for the claims asserted in the instant action. Whether the failure to comply with Rule 26
constituted fraud or either intentional or negligent misrepresentation, and if so, what if any
damages Plaintiffs are entitled to recover, are questions of fact for the jury to determine.
For these reasons, and the reasons set forth in the Court’s January 31, 2017 and February
3, 2017 Orders, the motion is denied.
IT IS SO ORDERED.
DATED: April 14, 2017
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge

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