Artisan and Truckers Casualty Co. v. Throgmorton et al

Filing 69

ORDER denying in part and granting in part Artisan's 56 Motion. The Court declines to issue an interlocutory order but will allow the parties to proceed to summary judgment on Count II of Defendants' counterclaim. The briefing schedule will be set by separate order. Artisan's 51 Motion is DENIED as moot. Signed by Judge Stephen P. McGlynn on 3/7/2025. (dpb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ARTISAN AND TRUCKERS
CASUALTY CO.,
Plaintiff,
v.

Case No. 23-cv-02485-SPM

TIMOTHY THROGMORTON, M.D.,
Administrator of the Estate of
James Allen Throgmorton, II, and
BRITTANY OSCHMANN,
Defendants.

MEMORANDUM AND ORDER
McGLYNN, District Judge:
Pending before the Court are a Motion for Leave to File for Entry of Final
Judgment (Doc. 51) and a Motion for Entry of an Order Certifying the Case for
Immediate Appeal or, in the Alternative, for Leave to Move for Summary Judgment
(Doc. 56), both filed by Plaintiff Artisan and Truckers Casualty Co. (“Artisan”). For
the reasons set forth below, the Court DENIES as moot the former motion, and
DENIES in part and GRANTS in part the latter motion.
BACKGROUND
This is an action for declaratory judgment filed by Artisan to determine
whether it has a duty under its insurance policy to provide underinsured motorist
(“UIM”) coverage benefits to Defendants Timothy Throgmorton, M.D., as
Administrator of the Estate of James Allen Throgmorton II, and Brittany Oschmann,
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collectively referred to as “Defendants.” (Doc. 1). Artisan issued a policy of commercial
auto coverage, number 01836274-0, to Giant City Transport LLC for the effective
policy period of June 15, 2020 to December 15, 2020 (“the Artisan policy”) (Id., ¶ 23).
On July 17, 2023, Artisan initiated this action by filing its Complaint for
Declaratory Judgment seeking a declaration that there is no UIM coverage available
pursuant to the Artisan policy issued to Giant City Transport LLC for the claim
brought by Defendants following an August 14, 2020 vehicle accident. (Doc. 1).
Specifically, Artisan contended that the sum of the policy limit under the Hartford
policy, $100,000, and the sum of the policy limit of the EMC policy, $1,000,000, totaled
$1,100,000 coverage, which exceeded the $1,000,000 limit of UIM coverage available
under the Artisan policy, resulting in no UIM coverage being available. (Id.).
On April 4, 2024, Artisan filed a Motion for Judgment on the Pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Doc. 26). On May 7,
2024, Defendants filed a Motion for Partial Summary Judgment. (Doc. 31). On
October 2, 2024, the Court denied Artisan’s motion and granted Defendants’ motion.
(Doc. 43). The Court then erroneously entered a Judgment Order (Doc. 44) dismissing
Artisan’s complaint for declaratory judgment and directing the Clerk of Court to close
the case. The Judgment Order disposed of all pending claims except for Count II of
Defendants’ counterclaim, which alleges “bad-faith denial of coverage” pursuant to
217 Ill. Comp. Stat. 5/155. (Id.).
On October 31, 2024, Artisan filed its Notice of Appeal of the Court’s October
2, 2024 Judgment. (Doc. 45). On December 5, 2024, the United States Court of

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Appeals for the Seventh Circuit entered an order finding that “[t]he judgment entered
on October 2, 2024 is . . . not final,” depriving the Court of Appeals of jurisdiction.
(Doc. 45-1, p. 2).
Artisan filed the instant motions on December 6, 2024, and January 8, 2025,
respectively (Docs. 51, 56). Defendants filed a Response to the latter motion on
January 27, 2025 (Doc. 59); Artisan filed a Reply on February 6, 2025 (Doc. 60). On
March 6, 2025, The Court vacated its order granting partial summary judgment as
well as its clerk’s judgment (Doc. 67) and issued a modified order granting partial
summary judgment on Count I Defendants’ counterclaim while dismissing with
prejudice Artisan’s claim. (Doc. 68). Accordingly, the remaining claim is Count II of
Defendants’ counterclaim. Artisan requests that the Court enter an interlocutory
order so that they may appeal the Court’s March 6 order granting partial summary
judgment, or in the alternative that it allows Artisan to file a motion for summary
judgment as to Count II of Defendants’ counterclaim. (Doc. 56).
LEGAL STANDARD
28 U.S.C. § 1292(b) provides an exception to the general rule that appellate
courts may only hear appeals from final decisions of district courts:
“When a district judge, in making in a civil action an order not
otherwise appealable under this section, shall be of the opinion
that such order involves a controlling question of law as to which
there is substantial ground for difference of opinion and that an
immediate appeal from the order may materially advance the
ultimate termination of the litigation, he shall so state in writing
in such order. The Court of Appeals which would have jurisdiction
of an appeal of such action may thereupon, in its discretion,
permit an appeal to be taken from such order, if application is
made to it within ten days after the entry of the order . . . .”
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The Seventh Circuit summarized § 1292(b)’s requirements in Ahrenholz v.
Board of Trustees of University of Illinois, 219 F.3d 674, 675–76 (7th Cir. 2000):
There are four statutory criteria for the grant of a section 1292(b)
petition . . . . there must be a question of law, it must be
controlling, it must be contestable, and its resolution must
promise to speed up the litigation . . . [t]here is also a nonstatutory
requirement: the petition must be filed in the district court within
a reasonable time after the order sought to be appealed.”
Federal law expresses a strong policy against piecemeal appeals. Switz. Cheese
Assoc. v. Horne’s Market, 385 U.S. 23, 24 (1966). Interlocutory appeals are generally
“frowned on” in the federal judicial system because of their potential to interrupt
and delay litigation. Sterk v. Redbox Automated Retail, LLC, 672 F.3d 535, 536 (7th
Cir. 2012); see Asher v. Baxter Int’l Inc., 505 F.3d 736, 741 (7th Cir. 2007)
(cautioning that interlocutory review “must be used sparingly lest [it] increase the
time and expense required for litigation”).
ANALYSIS
There is no doubt that the first criteria under Ahrenholz is met. “The
construction of an insurance policy is a question of law.” Menard, Inc. v. Country
Preferred Ins. Co., 992 N.E.2d 643, 647 (Ill. App. Ct. 2013). It is also clear that the
construction of the insurance policy is controlling. “A question of law may be
deemed ‘controlling’ if its resolution is quite likely to affect the further course of the
litigation, even if not certain to do so.” Sokaogon Gaming Enter. Corp. v. TushieMontgomery Assocs., Inc., 86 F.3d 656, 659 (7th Cir. 1996). There is no doubt that
the construction of the insurance policy was essential for the resolution of
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Defendants’ Motion for Partial Summary Judgment. However, the parties disagree
as to the third prong of the analysis. Artisan argues that there is a substantial
ground for difference of opinion as to the interpretation and application of the
statute. (Doc. 56, p. 2). Defendants argue that Illinois courts do not disagree on the
interpretation of the statute. (Doc. 59, p. 1).
The Court agrees with Defendants; it stands firmly behind its decision in its
October 3, 2024 Order. A contestable issue presents a “difficult central question of
law which is not settled by controlling authority” and poses a “substantial
likelihood” that the district court’s ruling may be reversed on appeal. In re Brand
Name Prescription Drugs Antitrust Litig., 878 F. Supp. 1078, 1081 (N.D. Ill. 1995).
This may be shown through conflicting authority on the relevant issue. See
Hoffman v. Carefirst of Ft. Wayne, Inc., 2010 WL 3940638, at *2 (N.D. Ind. Oct. 6,
2010); Carlson v. Brandt, 1997 WL 534500, at *6 (N.D. Ill. Aug. 22, 1997) (noting
that “interlocutory appeal is unjustified, inefficient, and unnecessary when the
movant has not set forth substantial conflicting decisions regarding the claimed
controlling issue of law”). Artisan has failed to demonstrate contestability.
As to the first question of law (whether “all bodily injury liability insurance
policies” as stated in the statute includes all policies, regardless of whether a
defendant is adjudicated liable or resolves a claim pursuant to settlement), the
Court determined that Illinois caselaw demonstrably rejects the proposition. The
Court relied on Cummins v. Country Mut. Ins. Co., 687 N.E.2d 1021, 1023 (Ill. 1997)
for the proposition that the purpose of underinsured motorist coverage “cover[s] the

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shortfall between the amount of insurance contracted for and the amount received
from the liable driver.” (Doc. 43, p. 9). Artisan does not dispute that Cummins is
good law, but rather that it does not apply to the instant case. (See Doc. 60, pp. 3–
4). In other words, Artisan maintains that the legal question presented here is one
of first impression. Without addressing whether Artisan is correct in its
assessment, it is a legally insufficient argument. The mere presence of a disputed
issue that is a question of first impression for the Seventh Circuit, by itself, is
insufficient to demonstrate a substantial ground for difference of opinion. See
Manitowoc Cranes LLC v. Sany Am. Inc., 2018 WL 582334, at *2 (E.D. Wis. Jan.
29, 2018). Rather, it is the duty of the district court to analyze “‘the strength of the
arguments in opposition to the challenged ruling,’ which process includes
‘examining whether other courts have adopted conflicting positions regarding the
issue of law proposed for certification.’” Whipkey v. Eli Lilly and Co., 2021 WL
11963021, at *2 (S.D. Ind. Mar. 16, 2021) (quoting United States v. Select Med.
Corp., 2017 WL 468276, at *3 (S.D. Ind. Feb. 3, 2017)). A party must demonstrate
that there are “conflicting positions regarding the issue of law proposed for
certification.” In re Bridgestone/Firestone, Inc. Tires Prods. Liab. Litig., 212 F.
Supp. 2d 903, 909–10 (S.D. Ind. 2002). Artisan fails this test; it presents no caselaw
contradicting or otherwise questioning the holding in Cummins; it merely asserts
that it doesn’t apply to the facts of this case. Without more, this Court determines
that the first question of law is not contestable.
As to the second question of law (whether, in determining the limits of

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underinsured motorist coverage, an insurer is entitled to a setoff of amounts
actually recovered), the Court relied on Farmers Automobile Insurance Association
v. Coulson, 931 N.E.2d 1257 (Ill. App. Ct. 2010), and DeStefano v. Farmers Auto.
Ins. Ass’n, 55 N.E.3d 677, 679–80 (Ill. App. Ct. 2015) in determining that the
caselaw rejects that proposition as well. (See Doc. 43, pp. 13–14). Artisan makes
the same argument, namely that the cases cited by the Court do not apply to the
case at hand. As previously discussed, however, this is an inadequate argument.
As was the case for the first question of law, Artisan does not cite any caselaw
challenging the cases cited and reasoning used by the Court in its previous Order
addressing the question. Accordingly, Artisan’s argument fails regarding the
second question of law as well. As Artisan fails the third prong of the analysis, the
Court need not analyze whether the entry of an interlocutory order will speed up
litigation, the fourth prong.
Artisan argues that if the Court were to reject its request for an interlocutory
order, that it should grant leave to file a motion for summary judgment on Count
II of Defendants’ counterclaim. (Doc. 56, p. 3). Defendants counter that a motion
for summary judgment on Count II would be premature because Artisan has not
engaged in arbitration, which would develop the factual issues necessary to resolve
the claim. (Doc. 59, p. 5). The Court disagrees with Defendants’ contention. The
typical procedural posture for a case such as this where a party seeks both a
declaratory judgment and damages for bad faith is that a dispositive motion for
both claims is brought in the same stage of the litigation. For example, in Werner

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v. Auto-Owners Ins. Co., 106 F.4th 676, 679 (7th Cir. 2024), the Seventh Circuit did
not find that the district court committed procedural error where it decided a
motion for summary judgment on both the insured’s claim for a declaratory
judgment and his claim for bad faith damages. Critically, the district court decided
the bad faith claim at the summary judgment stage “then held a bench trial on
damages.” Id. In other words, whether damages had been determined had no
bearing on the district court’s analysis of the bad faith argument at the summary
judgment stage. Therefore, this Court is not compelled to delay the adjudication of
the bad faith claim until after the parties engage in arbitration and will allow the
parties to adjudicate the issue at the summary judgment stage.
CONCLUSION
For the reasons stated above, Artisan’s Motion for Entry of an Order
Certifying the Case for Immediate Appeal or, in the Alternative, for Leave to Move
for Summary Judgment (Doc. 56) is DENIED in part and GRANTED in part.
The Court declines to issue an interlocutory order but will allow the parties to
proceed to summary judgment on Count II of Defendants’ counterclaim. The
briefing schedule will be set by separate order. Moreover, Plaintiff’s Motion for
Leave to File for Entry of Final Judgment (Doc. 51) is DENIED as moot.
IT IS SO ORDERED.
DATED: March 7, 2025

s/ Stephen P. McGlynn
STEPHEN P. McGLYNN
U.S. District Judge
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