Valley Forge Insurance Company v. Hartford Iron & Metal Inc et al

Filing 865

OPINION AND ORDER DENYING 796 MOTION for Partial Summary Judgment -- Alternatively, Motion for Judgment on the Pleadings -- filed by Alan B Goldberg; DENYING 797 MOTION for Partial Summary Judgment filed by Hartford Iron & Metal Inc; GRA NTING IN PART AND DENYING AS MOOT IN PART as outlined 801 MOTION for Partial Summary Judgment filed by Valley Forge Insurance Company; DENYING AS MOOT 825 Motion to Exclude Evidence filed by Hartford Iron & Metal Inc; and DENYING AS MOOT 837 Motion to Exclude Evidence Pursuant to L.R. 56-1(e) filed by Valley Forge Insurance Company. Signed by Judge William C Lee on 10/30/2019. (lns)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
VALLEY FORGE INSURANCE COMPANY,
Plaintiff/Counter-Defendant,
v.
HARTFORD IRON & METAL, INC., and
ALAN B. GOLDBERG, d/b/a Hartford Iron &
Metal,
Defendants/Counter-Plaintiffs.

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Case No. 1:14-CV-6

OPINION AND ORDER
This matter is before the Court for resolution of several pending motions. The motions,
responses, and replies filed by the parties and considered by the Court include the following:
1) A motion for partial summary judgment or, in the alternative, for judgment on the pleadings
filed by Defendant Alan Goldberg (ECF 796), to which Plaintiff Valley Forge filed a brief in
opposition (ECF 817) and Goldberg filed a reply (ECF 820).1 For the reasons explained below,
this motion is DENIED.
2) A motion for partial summary judgment filed by Defendant Hartford Iron & Metal (ECF 797),
to which Valley Forge filed a response in opposition (ECF 813) and Hartford Iron filed a reply
(ECF 822). For the reasons explained below, this motion is DENIED.
3) A motion for partial summary judgment filed by Valley Forge (ECF 801), to which Hartford
Iron filed a response in opposition (ECF 810), Goldberg filed a response in opposition (ECF

1

In addition to the arguments presented in the briefs, the Court reviewed the voluminous
amount of evidence submitted by the parties in support of their motions or in opposition to the
other side’s motions. This evidence included over 5,500 pages of documents, photographs,
affidavits, and declarations.

812)2, and Valley Forge filed a reply (ECF 819). For the reasons explained below, the motion is
GRANTED in part and DENIED AS MOOT in part.
4) A motion to exclude evidence filed by Hartford Iron (ECF 825), to which Valley Forge filed a
response in opposition (ECF 836) and Hartford Iron filed a reply (ECF 840). For the reasons
explained below, the motion is DENIED AS MOOT.
5) A motion to exclude evidence filed by Valley Forge (ECF 837), to which Hartford Iron filed a
response in opposition (ECF 841) and Valley Forge filed a reply (ECF 842). For the reasons
explained below, the motion is DENIED AS MOOT.
STANDARD OF REVIEW
Summary judgment is appropriate when the record shows that there is “no genuine issue
as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Disputes concerning
material facts are genuine where the evidence is such that a reasonable jury could return a verdict
for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding
whether genuine issues of material fact exist, the court construes all facts in a light most
favorable to the non-moving party and draws all reasonable inferences in favor of the nonmoving party. See id. at 255. However, neither the “mere existence of some alleged factual
dispute between the parties,” id. at 247, nor the existence of “some metaphysical doubt as to the
material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986),

2

Goldberg states in this separate response that he “joins fully in the response brief and
Appendix filed . . . by Hartford Iron & Metal, Inc.[,]” and so the factual recitations and
arguments presented in Hartford Iron’s briefs and supporting evidence pertain to, and are
submitted on behalf of, both the incorporated business and Goldberg individually.
2

will defeat a motion for summary judgment. Michas v. Health Cost Controls of Ill., Inc., 209
F.3d 687, 692 (7th Cir. 2000).
Summary judgment is not a substitute for a trial on the merits nor is it a vehicle for
resolving factual disputes. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994).
Therefore, after drawing all reasonable inferences from the facts in favor of the non-movant, if
genuine doubts remain and a reasonable fact-finder could find for the party opposing the motion,
summary judgment is inappropriate. See Shields Enterprises, Inc. v. First Chicago Corp., 975
F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989).
However, if it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to
establish his or her case, summary judgment is not only appropriate, but mandated. See Celotex,
477 U.S. at 322; Ziliak v. AstraZeneca LP, 324 F.3d 518, 520 (7th Cir. 2003). “[Speculation and
conjecture” also cannot defeat a motion for summary judgment. Cooney v. Casady, 735 F.3d 514,
519 (7th Cir. 2013). In addition, not all factual disputes will preclude the entry of summary
judgment, only those that “could affect the outcome of the suit under governing law.” Outlaw v.
Newkirk, 259 F.3d 833, 837 (7th Cir. 2001) (citation omitted).
As the Seventh Circuit has explained many times and reiterated recently, a district court’s
task on summary judgment is as follows:
The following common refrains in summary judgment cases are important to
recall in a case with so many factual recitations:
On summary judgment a court may not make credibility determinations, weigh the
evidence, or decide which inferences to draw from the facts; these are jobs for a
factfinder. Rather, the court has one task and one task only: to decide, based on
the evidence of record, whether there is any material dispute of fact that requires a
trial. Summary judgment is not appropriate if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party. We must look
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therefore at the evidence as a jury might, construing the record in the light most
favorable to the nonmovant and avoiding the temptation to decide which party’s
version of the facts is more likely true. As we have said many times, summary
judgment cannot be used to resolve swearing contests between litigants.
Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887, 893 (7th Cir. 2018) (quoting Payne
v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003)). The case at bar will be tried to the bench. “Rule 56
makes no explicit distinction between jury and bench trials. However, the rule is designed as a
pretrial mechanism for ‘asses[ing] the proof in order to see whether there is a genuine need for
trial,’ and whether there is such a need may depend on whether trial would be to the court or to a
jury.” Stewart Title Guar. Co. v. Residential Title Servs., Inc., 607 F.Supp.2d 959, 961-62 (E.D.
Wis. 2009) (citing William Schwarzer, Alan Hirsch & David Barrans, The Analysis & Decision
of Summary Judgment Motions, 139 F.R.D. 441, 474 (1991) (in turn quoting Fed.R.Civ.P. 56(e)
advisory committee’s notes (amended 1963)). When evidentiary facts are in dispute, when the
credibility of witnesses may be in issue or when conflicting evidence must be weighed, a full trial
is necessary regardless of whether it is a bench or a jury trial. Id. “[T]he appropriate time for the
Court to weigh the evidence and reach factual conclusions is at trial.” Thornton v. Hamilton
Sundstrand Corp., 121 F.Supp.3d 819, 826-27 (N.D. Ill. 2014), aff’d sub nom. Thornton v. M7
Aerospace LP, 796 F.3d 757 (7th Cir. 2015) (citing Casey v. Uddeholm Corp., 32 F.3d 1094,
1099 (7th Cir.1994) (“[T]he appropriate proceedings for such fact-finding is a bench trial and not
the disposition of a summary judgment motion.”)).
DISCUSSION
Valley Forge Insurance Company filed this lawsuit alleging that Hartford Iron & Metal

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and its owner, Alan Goldberg3, breached a contract between the parties that was intended to
resolve all disputes and claims between them. Those disputes and claims all arise from the
environmental remediation of Hartford Iron’s property, on which the company operates a scrap
metal recycling business. Hartford Iron entered into an Agreed Order with the Indiana
Department of Environmental Management in 2009 that mandated that Hartford Iron remediate
pollution at its site, including remediation of PCB contamination and other pollutants that
accumulated on the property over the course of decades of industrial use. Valley Forge, as
Hartford Iron’s insurer, agreed to pay for the remediation. The parties entered into their first
Settlement Agreement on April 17, 2009, which set forth the parties’ rights and obligations with
respect to the remediation process intended to comply with the IDEM Agreed Order.
Unfortunately, numerous disputes arose and the parties accused each other of breaching the 2009
Settlement Agreement. On December 4, 2012, the parties entered into a second Settlement
Agreement, which again purported to resolve all disputes and claims between them at the time.
Importantly, the 2012 Agreement came on the heels of state court litigation between these same
parties, in which they litigated the issue of coverage, i.e., whether Valley Forge had to pony up to
pay for the remediation pursuant to insurance policies issued to Goldberg and Hartford Iron over
the years.4 The 2012 Agreement, by its express terms, incorporated and supplemented the 2009
Agreement. Accordingly, the 2009 and 2012 Settlement Agreements together form the contract

3

Goldberg states that he is “the majority shareholder of Hartford Iron.” Goldberg
Response (ECF 812), p. 1.
4

That state court case was litigated in the Blackford County Circuit Court and was
captioned Hartford Iron & Metal, Inc., and Alan Goldberg v. Valley Forge Insurance Company,
et al., Case No. 05C01-1110-MI00322. See footnote 6, below.
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that is at issue now, and which each side accuses the other of breaching. In short, this is a breach
of contract case; it is not an insurance coverage case. The Court concludes that the issues in this
case require a trial (actually, two trials–one on the issue of which side breached the Settlement
Agreements and a second on the damages to be awarded to the non-breaching party or parties).
Valley Forge, in its original Complaint (ECF 1) and its first Amended Complaint (ECF
6), stated claims for breach of contract and “claims” for declaratory judgment under the
Declaratory Judgment Act, 28 U.S.C. § 2201. As this Court stated several years ago when ruling
on a motion to dismiss Valley Forge’s first Amended Complaint filed by Hartford Iron and
Goldberg:
Valley Forge says Hartford Iron incorrectly describes Counts 1, 2, and 4 as breach
of contract claims. Those claims, Valley Forge argues, seek declaratory
judgments. The distinction is irrelevant: the counts seek a declaratory judgment
that Hartford Iron breached the contract.[] A declaratory judgment that Hartford
Iron breached the Settlement Agreement is only appropriate if Hartford Iron
breached the contract.
...
Valley Forge claims Hartford Iron breached the contract when it “fail[ed] to
cooperate with Valley Forge and August Mack,”5 “lock[ed] August Mack out of
the Site and threaten[ed] to withhold access in the future,” “generally attempt[ed]
to control the defense and remediation of the Site,” and “insist[ed] on the ongoing
reimbursement of invoices for work performed by Mr. Shere.”
Opinion and Order denying motion to dismiss (ECF 28), p. 8 and n. 2 (italics added). Judge
Miller, who was presiding over the case at that time, went on to explain that:
To the extent, if any, Hartford Iron’s arguments also challenge the corresponding
declaratory judgment claims, the claims are equally plausible. A declaratory
judgment allows a party that isn’t certain of its rights to seek adjudication and
avoid the accrual of damages rather than waiting for the damage to accrue.
5

August Mack Environmental was the company hired by Valley Forge pursuant to the
2012 Settlement Agreement to conduct remediation work at the site.
6

NUCOR Corp. v. Aceros Y Maquilas de Occidente, S.A. de C.V., 28 F.3d 572, 577
(7th Cir. 1994). Declaratory relief is warranted if there is an actual, substantial
controversy between parties with adverse legal interests and the controversy is
sufficiently immediate and real. Id. Construing the facts in Valley Forge’s favor,
numerous disputes between the parties over the execution of the Settlement
Agreement are immediate, real, and likely to continue.
Id., pp. 18-19. The controlling Complaint now is Valley Forge’s Second Amended Complaint,
filed on April 22, 2015 (ECF 74). The Second Amended Complaint, while presenting additional
factual assertions and allegations of continuing breaches by Hartford Iron and Goldberg, does not
change the claims presented or add new ones. This case is and always has been a breach of
contract case, just as this Court observed in an order entered by Judge Miller on January 4, 2017
(ECF 609, p. 9, n. 1) (more on this order later). As such, Hartford Iron and Goldberg cannot
maintain their counterclaim alleging a tort claim for bad faith insurance practices, and their
argument that the policies issued to them over the years by Valley Forge provide for nearly $300
million in coverage is moot. This does not mean that Hartford Iron and Goldberg have no
counterclaim at all: their assertions and allegations state a counterclaim for beach of contract,
which is even Valley Forge’s position. See Valley Forge Brief in Support of Motion for Partial
Summary Judgment (ECF 802), p. 3 (the “parties [have] cross-claims for breach of contract[.]” ).
But no matter which side prevails on the issue of liability, the damages to be awarded to that
prevailing side will be determined according to Indiana contract law, not on any theory about the
amount of coverage available under the policies. This is because, as stated above and discussed
below, this is a breach of contract case not an insurance coverage case. In the nearly six years
since this case was filed, the parties have litigated it as if it were an insurance coverage case, and
the Court followed them down that rabbit hole. But the parties settled all claims and disputes

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concerning insurance coverage when they entered into the 2009 and 2012 Settlement
Agreements, the latter of which arose following an Indiana state court case in which the parties
litigated the issue of whether Valley Forge had a duty to defend and indemnify Hartford Iron and
Goldberg in the IDEM proceeding. The Court will explain its conclusions by addressing the
motions for partial summary judgment in reverse order of their filing.
I. Valley Forge’s motion for partial summary judgment.
Valley Forge moves for summary judgment on two issues: the dispute about the amount
of coverage available under several policies issued to Goldberg or Hartford Iron, and the matter
of Hartford Iron and Goldberg’s counterclaim for bad faith. The two issues, while quite distinct,
are both resolved based on the same reasoning: because this is a breach of contract case and not
an insurance coverage case, damages will not determined based on any theory about an
applicable indemnity cap under the policies; and for the same reason, the Defendants cannot
maintain a counterclaim against Valley Forge for the tort of bad faith. Valley Forge’s motion for
partial summary judgment is moot as to the coverage issue because if Hartford Iron and Goldberg
prevail on their counterclaim that Valley Forge breached the Settlement Agreements, they are
entitled to damages stemming from that breach regardless of how much coverage the policies
provided. Valley Forge’s motion must be granted, however, on the issue of the Defendants’
counterclaim for bad faith, since a bad faith insurance practices claim has no place in a breach of
contract case (notwithstanding the fact that the contract at issue arose out of an insured/insurer
relationship), and because Indiana does not recognize a cause of action for tortious breach of
contract. Haegert v. Univ. of Evansville, 977 N.E.2d 924, 936 (Ind. 2012) (“Indiana does not
recognize a distinct cause of action for ‘tortious breach of contract.’”) (quoting Allstate Ins. Co.
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v. Hammond, 759 N.E.2d 1162, 1166 (Ind.Ct.App.2001)). At the same time, Valley Forge cannot
argue during a damages trial, if one occurs, that the damages to which Hartford Iron and
Goldberg would be entitled if they prevail are limited to the amount of coverage Valley Forge
says is available (about $15 million) under the terms of the insurance policies and set out in the
Settlement Agreements. If Hartford Iron and Goldberg prevail on their breach of contract
counterclaim, they would be entitled to damages in an amount necessary to complete the
environmental remediation pursuant to the terms set forth in the Settlement Agreements and the
IDEM Agreed Order, as well as any other damages they can prove arose out of Valley Forge’s
breach, minus any offsets. If on the other hand Valley Forge prevails, it would be entitled to
recover whatever amount of damages it can prove it incurred as a result of Defendants’ breach,
which also would not be tied to any indemnity cap in any insurance policy.
A. The issue of the amount of coverage available under the policies, or the way any
indemnity cap should be calculated, is moot.
In its Second Amended Complaint, Valley Forge summarizes its case against Hartford
Iron and Goldberg as follows:
Valley Forge seeks this Court’s assistance in fulfilling its agreement to fund the
remediation of a scrap metal recycling operation located at 209 S. Division Street,
Hartford City, Indiana (the “Site”) operated by Hartford Iron & Metal, Inc.
(“Hartford Iron”) on property owned by Alan B. Goldberg.
2. Valley Forge and Hartford Iron previously litigated their respective rights and
duties pursuant to insurance contracts and, ultimately, entered into the most
recent settlement agreement in December 2012 (“2012 Agreement”).6
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This is an important fact. The parties litigated the issue of coverage in the Blackford
County Circuit Court in Hartford Iron & Metal, Inc., and Alan Goldberg v. Valley Forge
Insurance Co., et al., Case No. 05C01-1110-MI-00322, which was filed in 2011. On September
6, 2012, the Blackford Circuit Court entered an order granting Hartford Iron and Goldberg’s
motion for partial summary judgment and finding that “there is no genuine issue of material fact
9

3. In the 2012 Agreement, Valley Forge agreed to:
(A) fund the development and implementation of a remedial work plan for the
Site to the satisfaction of regulators, up to the remaining limits of the insurance
contracts, including the costs to implement and operate a storm water collection
and treatment system that Hartford Iron and its former environmental consultant
demanded;
(B) defend Hartford Iron against claims by the United States Environmental
Protection Agency (“EPA”) and Indiana Department of Environmental
Management (“IDEM”) regarding the Site, without reserving any rights to deny
coverage; and
(C) pay certain fines in connection with the Site on Hartford Iron’s behalf.
4. As a result of its business decision to enter into the 2012 Agreement, Valley
Forge has a strong financial incentive to remediate the Site as expeditiously and
cost-effectively as possible, consistent with IDEM and EPA standards.
5. To date, Valley Forge has paid millions of dollars to remediate the Site, has
retained and paid for multiple defense attorneys to represent Hartford Iron, and
has fully satisfied Hartford Iron’s obligations to pay extensive fines.
6. In exchange for Valley Forge’s significant financial commitment in the 2012
Agreement, among other things, Hartford Iron agreed as follows:
(A) Valley Forge would have exclusive control the defense of the IDEM and EPA
claims;
(B) the environmental consulting firm August Mack Environmental, Inc. (“August
Mack”) would be responsible for carrying out the remediation of the Site, as
approved by IDEM and EPA;
(C) Hartford Iron would cooperate with Valley Forge, defense counsel and August

as to whether Defendant Valley Forge Insurance Co. is liable to Plaintiffs for the reasonable and
necessary costs incurred by Plaintiffs to contain and remediate soil and ground water
contamination on the property at issue, not to exceed the policy limits set forth in the . . . 2009,
Settlement Agreement.” Circuit Court Order (ECF 802-4). Seven years ago the parties litigated
the issue of coverage and the state court entered an order holding that Valley Forge was obligated
to provide coverage for the remediation of the Hartford Iron site. The issue before this Court,
then, is not one of coverage or the amount of coverage; rather, the issue in the present case is
which side is liable to the other for breach of the Settlement Agreements.
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Mack to obtain approval for and to implement the most cost-effective remediation
work plan for the Site; and
(D) Valley Forge had a recognized interest in achieving a cost-effective
remediation, which defense counsel was to represent.
7. Valley Forge anticipated that resolving the insurance coverage issues would
permit the parties to move forward and achieve what should be their common
goal: cost effectively remediating the Site, as envisioned in the 2012 Agreement.
8. Unfortunately, Hartford Iron has not honored its contractual duties to cooperate,
and has taken steps to control, delay and hinder the remediation, despite its
binding acknowledgment in the 2012 Agreement that Valley Forge has the right to
control the remediation.
Second Amended Complaint (ECF 74), pp. 1-3 (italics added). Later in the Complaint,
addressing the 2012 Settlement Agreement, Valley Forge states as follows:
42. On or about October 27, 2011 Hartford Iron sued Valley Forge in a case
captioned Hartford Iron & Metal, Inc. v. Valley Forge Insurance Co. et. al., No.
05C01-1110- M1-000322, in the Circuit Court of Blackford County, Indiana (the
“Coverage Litigation”).
...
45. On or about December 6, 2012 Valley Forge and Hartford Iron entered into
the 2012 Agreement. A true and correct copy of the 2012 Agreement is attached
hereto as Exhibit 1.
46. Pursuant to the 2012 Agreement, Valley Forge and Hartford Iron agreed to
release each other from any and all claims, counterclaims and causes of action
that were or that could have been pled in, or in response to, the Coverage
Litigation, as well as any and all claims for malpractice or bad faith with respect
to the handling or defense of the IDEM and EPA claims described above, through
the effective date of the 2012 Agreement.
Second Amended Complaint, pp. 8-9 (italics added). In its brief in support of its motion for
partial summary judgment, Valley Forge argues as follows:
The threshold question of “how much coverage” [there is] and the issue of bad
faith are subjects suitable for summary judgment. Resolution of these issues will
help focus what the Court has described as an amorphous case. Once the Court
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and the parties know “how big this breadbox is,” as the Court put it, and dispose
of a bad faith claim that has no place in this case, the parties’ cross-claims for
breach of contract can be tried.
Valley Forge Brief in Support (ECF 802), p. 3. The Court agrees with this assessment. Valley
Forge insists, as it has throughout this litigation, that the Settlement Agreements expressly limit
the amount of coverage available to fund the remediation and that the Company has already
reached or exceeded that amount. In its brief, Valley Forge states it this way:
A straightforward application of the [Settlement] Agreements and examination of
the record establish that thee is no genuine issue of material fact that: (1) the
parties agreed to a formula to calculate an “indemnity payment cap” limiting
VFIC’s financial obligations in connection with the Property, (2) the parties
agreed that the indemnity payment cap would be depleted through payment of
“Agreed Order Costs,” and (3) VFIC has paid almost $14 million in Agreed Order
Costs. Thus, the “how much coverage” issue can be decided as a matter of law, as
the Court should rule that VFIC’s indemnity payment cap is $15,251,460 and that
VFIC has paid $13,919,623 in Agreed Order Costs.
Id., p. 3. Valley Forge insists that the policies listed in the Settlement Agreements provide a
cumulative total of just over $15 million in coverage and that it has nearly reached that indemnity
cap.7 Hartford Iron and Goldberg insist that the policies actually provide for much more
coverage–about $300 million.8 The Court concludes that both sides are mistaken. The amount of

7

Valley Forge’s brief was filed nearly one year ago and the Company has represented in
recent hearings that it has actually paid more than $15 million in an attempt to comply with the
Agreed Order and Settlement Agreements, having paid for work and costs incurred in the past
year.
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Hartford Iron and Goldberg argue that certain policies issued by Valley Forge over 40
years ago provide for approximately $300 million in coverage rather than $15 million. They
contend that policies issued “from September 1, 1976 to October 25, 1978” provide “sufficient
[coverage] to fund remediation of contaminated soil and related tasks[.]” Hartford Iron’s
Summary of Issues (ECF 830), p. 7. The Defendants maintain that those early policies had no
aggregate coverage limit. “The aggregate coverage limit does not apply to the 26-month policy
period from September 1, 1976 to October 24, 1978[.]” Defendants’ Reply in Support of Partial
Summary Judgment (ECF 822), p. 5. Therefore, argue the Defendants, policy “coverage was
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coverage available under the policies is irrelevant. The relevant issue is the amount of damages
to which the prevailing party will be entitled, which is not dependent upon the amount of
coverage provided under the insurance policies. The side that prevails at trial on the issue of
breach will be entitled to prove its damages regardless of how much coverage the policies
allegedly provide or how much of that alleged cap has already been exhausted. It is axiomatic
that a prevailing party in a breach of contract suit is entitled to damages in an amount that will
make that party whole. “The measure of damages in a breach of contract case is the loss actually
suffered by the breach.” Dana Companies, LLC v. Chaffee Rentals, 1 N.E.3d 738, 748
(Ind.Ct.App. 2013) (citing Sammons Communications of Indiana, Inc. v. Larco Cable Const.,
691 N.E.2d 496, 498 (Ind.Ct.App. 1998)). See also, Four Seasons Mfg., Inc. v. 1001 Coliseum,
LLC, 870 N.E.2d 494, 507 (Ind.Ct.App. 2007) (“In a breach of contract case, the measure of
damages is the loss actually suffered by the breach.”) (citing Sheppard v. Stanich, 749 N.E.2d
609, 611 (Ind.Ct.App.2001)).
Valley Forge contends that its “indemnity obligation is capped at $15,251,460” and that
the Settlement Agreements make that clear by listing the policies under which coverage exists.
Valley Forge Brief in Support, p. 4. But the issue is not how much coverage the policies provide
or how much of that has already been depleted. As far as money goes, the issue is one of
damages for breach of contract, not one for the recovery of specific amounts allegedly available

$50,000 per occurrence during the 26 months from Sept. 1, 1976 to Oct. 25, 1978 . . . , which
yields hundreds of millions of dollars of potential coverage based on these thousands of
occurrences. Id., p. 6. According to Hartford Iron and Goldberg, “[w]ithout an applicable
aggregate limit, Insurer’s coverage extends to each of the ‘thousands of separate liability events’
during the Sept. 76 to Oct. 78 period. . . . The liability events during this period included twenty
to fifty loads of different types of scrap per day, six days a week.” Id., p. 6.
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under any insurance policy, whether that amount is $15 million or $300 million. The issue in this
case is one of damages, not one of coverage.
Even if this case were a coverage case, the parties’ arguments about how much coverage
is available under which policies would still miss the point. In the case of McGrath v. Everest
Nat. Ins. Co., a case cited by Hartford Iron and Goldberg as supporting their argument that there
is no indemnity cap (or, more precisely, that the indemnity cap is $300 million rather than $15
million), this Court explained as follows:
Where an insurer breaches an insurance policy, recoverable damages are not
defined by or restricted to the indemnity limits of the policy. Indiana Insurance
Co. v. Plummer Power Mower & Tool Rental, Inc., 590 N.E.2d 1085, 1090
(Ind.App. 1992). The law in Indiana is that “the policy limits restrict the amount
the insurer may have to pay in the performance of the contract, not the damages
that are recoverable for its breach.” See also Schroeder v. Barth, Inc., 969 F.2d
421, 425 (7th Cir. 1992) (citing Plummer Power as Indiana’s law on contractual
damages).
Accordingly, the measure of damages in an action against an insurer for breach of
its duty to defend is defined by those damages “suffered as a result of the breach
which are reasonably assumed to have been within the contemplation of the
parties at the time the contract was formed.” Erie, 622 N.E.2d at 519.
“Consequential damages may be awarded on a breach of contract claim when the
non-breaching party’s loss flows naturally and probably from the breach and was
contemplated by the parties when the contract was made,” a concept generally
conceived of as “reasonably foreseeable economic losses.” Johnson v. Scandia
Assocs., Inc., 717 N.E.2d 24, 31 (Ind. 1999). See also Hasse Construction
Company, Inc. v. Gary Sanitary District Board of Comm., 2008 WL 2169000, *7
(N.D.Ind. May 23, 2008) (stating that a party may recover in a contract action
those losses suffered as a result of the breach which are reasonably assumed to
have been contemplated by the parties at the time they formed the contract).
McGrath v. Everest Nat. Ins. Co., 668 F.Supp.2d 1085, 1107 (N.D. Ind. 2009). Hartford Iron and
Goldberg’s argument, then, is correct in part: if they prevail on the issue of liability, the damages
to which they would be entitled would not be determined based on any indemnity cap under the
14

insurance policies. Instead, damages would be the amount Hartford Iron and Goldberg are able to
prove they incurred as a result of Valley Forge’s breach of the Settlement Agreements. In other
words, Indiana contract and damages law will govern the determination of damages to be
awarded to the prevailing side. Therefore, the parties’ long-standing and fiercely litigated battle
over the amount of coverage available is, after it all shakes out, irrelevant.
Furthermore, this Court addressed this issue several years ago, with Judge Miller
observing as follows:
This claim would duplicate Hartford Iron’s action in contract with an action in
tort. “[A] party may not restyle a breach-of-contract claim as a tort claim simply to
obtain additional damages. Where the source of a party’s duty to another arises
from a contract, tort law should not interfere.” Eads Parkway, LLC v. DBL Axel,
LLC, 977 N.E.2d 354, 364 (Ind.Ct.App. 2012) (internal quotations omitted); Greg
Allen Constr. Co. v. Estelle, 798 N.E.2d 171, 173 (Ind. 2003) (“Because a tort
may produce more generous damages and open the door to the possibility of
punitive damages, there is obvious incentive to seek to frame a contract breach as
a negligence claim.”).
Valley Forge Ins. Co. v. Hartford Iron & Metal, Inc., 2017 WL 57808, at *6 (N.D. Ind. Jan. 4,
2017), reconsideration denied, 2017 WL 1546277 (N.D. Ind. Apr. 28, 2017). In another case, this
Court explained as follows:
“Where an insurer breaches an insurance policy, recoverable damages are not
defined by or restricted to the indemnity limits of the policy.” McGrath v. Everest
Nat’l Ins. Co., 668 F. Supp. 2d 1085, 1107 (N.D. Ind. 2009) (citing Ind. Ins. Co. v.
Plummer Power Mower & Tool Rental, Inc., 590 N.E.2d 1085, 1090 (Ind.Ct.App.
1992)). Instead, “a party injured by a breach of contract may recover
consequential damages . . . [which] may be awarded when the non-breaching
party’s loss flows naturally and probably from the breach and was contemplated
by the parties when the contract was made.” Rockford Mut. Ins. Co. v. Pirtle, 911
N.E.2d 60, 67 (Ind.Ct.App. 2009) (citing Thor Elec., Inc. v. Oberle & Assocs.,
Inc., 741 N.E.2d 373, 381 (Ind.Ct.App. 2000)). “A damage award must be based
upon some fairly defined standard, such as cost of repair, market value,
established experience, rental value, loss of use, loss of profits, or direct inference
from known circumstances. The damages claimed also must be the natural
15

foreseeable, and proximate consequence of the breach.” Otter Creek Trading Co.,
Inc. v. PCM Enviro PTY, LTD, 60 N.E.3d 217, 229 (Ind.Ct.App. 2016) (citing
Fowler v. Campbell, 612 N.E.2d 596, 603 (Ind.Ct.App. 1993)).
Kesic v. Am. Family Mut. Ins. Co., 2019 WL 2327807, at *3 (N.D. Ind. May 31, 2019). In the
case of Crown, Cork & Seal Co. v. Employers Ins. Of Wausau, the plaintiff sued its insurance
carrier in a case that “[arose] out of a settlement agreement between plaintiff and defendant (‘the
Agreement’) which was intended to resolve all issues pertaining to insurance coverage for
plaintiff's asbestos bodily injury liabilities under defendant’s primary and excess insurance
policies.” The plaintiff argued that the Agreement should be construed against the defendant
since the defendant was insurance company. The district court rejected the argument, holding as
follows:
Plaintiff argues that the [Settlement] Agreement should be construed against
defendant because it is an insurer. The Agreement is not an insurance policy,
however, but a contract. Moreover, it is the product of extensive negotiations
between sophisticated parties equally well-versed in the subject matter.
Crown, Cork & Seal Co. v. Employers Ins. Of Wausau, 2001 WL 1243549, at *5, n. 4 (E.D. Pa.
Oct. 17, 2001). And the Indiana Court of Appeals has explained as follows:
“In tort, all damages directly traceable to the wrong and arising without an
intervening agency are recoverable.” Erie, 622 N.E.2d at 519. “By contrast, the
measure of damages in a contract action is limited to those actually suffered as a
result of the breach which are reasonably assumed to have been within the
contemplation of the parties at the time the contract was formed.” Id. . . . A
plaintiff seeking damages for breach of contract is not entitled to be placed in a
better position than she would have been had the breach not occurred. Holloway v.
Bob Evans Farms, Inc., 695 N.E.2d 991, 995 (Ind.Ct.App. 1998). The plaintiff
may recover the benefit of her bargain but is limited in her recovery to the loss
actually suffered, and a damage award must be referenced to some fairly defined
standard. Fowler v. Campbell, 612 N.E.2d 596, 603 (Ind.Ct.App. 1993).
Allstate Ins. Co. v. Hammond, 759 N.E.2d 1162, 1166-67 (Ind.Ct.App. 2001).

16

In the instant case, Valley Forge and Hartford Iron already litigated the issue of coverage
in the Blackford Circuit Court. Then they went a step further by entering into the second
Settlement Agreement, which like the 2009 Agreement was negotiated for the purpose of settling
all coverage and claims disputes between them. A couple years after the 2012 Agreement was
signed, Valley Forge initiated this lawsuit, in which each side now accuses the other of breaching
those Agreements. And since this is a breach of contract case, and not an insurance coverage
case, both sides’ arguments about the amount of coverage is moot and Valley Forge’s motion for
partial summary judgment on the issue must be denied for that reason.
B. Defendants’ counter-claim for bad faith is a claim for breach of contract.
Valley Forge also moves for summary judgment on Hartford Iron and Goldberg’s
counterclaim for bad faith. Valley Forge argues as follows:
In Indiana, a breach of contract claim cannot give rise to a bad faith claim unless
the contract creates a “special relationship” between the parties in which there is
an implied duty of good faith, as is the case with insurance policies. Here, the
terms of the Agreements expressly state that the Agreements are not intended to
be construed as an insurance policy and, therefore, there is no “special
relationship” created by the Agreements and can be no implied duty of good faith.
Valley Forge Brief in Support, p. 3. Valley Forge also argues that even if the Settlement
Agreements were interpreted to create a special relationship on which a bad faith claim might
rest, such a claim is still unsustainable since “the record in this case is completely devoid of any
evidence that might reasonably suggest that VFIC acted with the conscious wrongdoing and ill
will necessary to prevail on a claim for bad faith under Indiana law.” Id. This second argument,
obviously, goes to the merits of a bad faith claim, which the Court need not address given that
the first argument–that there can be no bad faith claim in this breach of contract case–carries the

17

day.
Here is how Valley Forge argues the point:
The express terms of the [2009 and 2012] Agreements establish that the parties
intended to preclude any application of the Agreements as giving rise to a “special
relationship” and implying a duty of good faith. The parties expressly agreed that
the 2009 and 2012 Agreements are not to be construed or interpreted as insurance
policies: “This Agreement . . . is not intended nor will it be construed as an
insurance policy”; “Nothing contained herein constitutes an admission by VFIC
that Hartford Iron is entitled to any insurance coverage in connection with the
Property.” . . . They are settlement contracts the parties negotiated and [] drafted
together with the assistance of their attorneys, entered into “without any admission
of fact or liability,” using language that “will not be presumptively construed in
favor of or against any of the parties,” and with terms the parties agreed were
“fair, reasonable and equitable and in their respective best interests.” The only
reasonable interpretation of these Agreements is that the parties clearly intended
to negate any “special relationship” that Indiana courts ascribe to insurance
policies. Thus, the unambiguous terms of the Agreements establish that they are to
be interpreted as typical contracts, and Indiana law does not allow for a bad faith
claim based on breach of contract.
Plaintiff’s Brief in Support, pp. 17-18 (quoting 2009 and 2012 Settlement Agreements) (citations
omitted).
In their response in opposition to Valley Forge’s motion, Hartford Iron and Goldberg
argue that the issue of their bad faith claim has already been decided in a previous order issued
by this Court. Defendants’ Response in Opposition (ECF 810), p. 21. The order they reference is
Judge Miller’s January 4, 2017, Opinion and Order denying Hartford Iron and Goldberg’s motion
to dismiss. In that order, Judge Miller wrote as follows:
Valley Forge argues that it’s not subject to the duty of good faith because Hartford
Iron is disputing Valley Forge’s performance under the Second Settlement
Agreement rather than under the original insurance policy. See Empire Realty
Invs., Inc. v. U.S. Affordable Hous., LLC, 2015 WL 2404375, at *8 (N.D. Ind.
May 19, 2015) (a special relationship is needed to assert a bad faith claim based
on a breach of contract). Neither party points to law addressing whether an
agreement settling an insurance dispute should be treated as an insurance contract
18

that’s subject to the duty of good faith.
...
A duty of good faith requires a “special relationship” beyond mere existence of a
contract. Erie Ins. Co. v. Hickman, 622 N.E.2d at 518. The rationale for
recognizing a “special relationship” in the insurance policy context applies equally
well to recognizing a “special relationship” in a settlement agreement to an
insurance dispute. An insurance agreement “is at times a traditional arms-length
dealing between two parties, as in the initial purchase of a policy, but is also at
times one of a fiduciary nature, and, at other times, an adversarial one, as here in
the context of a first-party claim.” Id. (internal citations omitted). In the same
way, the creation of the settlement agreement was at arms length. It’s fiduciary in
nature because Valley Forge agreed to defend and indemnify Hartford Iron
without reservation of rights. Just as with an insurance policy, that relationship
can be strained by an insurer who intentionally delays payment. As this litigation
has made evident, the relationship here is adversarial. The Second Settlement
Agreement thus gives rise to a potential “cause of action for the tortious breach of
an insurer’s duty to deal with its insured in good faith.”
...
[Fn 1:] Unlike the First Settlement Agreement, the second doesn’t bargain away
this obligation. The First Settlement Agreement explains that the agreement “is
not intended to nor will it be construed as an insurance policy.” The Second
Settlement doesn’t seem to so limit itself.
Valley Forge Ins. Co. v. Hartford Iron & Metal, Inc., 2017 WL 57808, at *4 (N.D. Ind. Jan. 4,
2017), reconsideration denied, 2017 WL 1546277 (N.D. Ind. Apr. 28, 2017). Not surprisingly,
Hartford Iron and Goldberg insist that this ends the debate and “that the Court already decided
the issue.” Defendants’ Brief in Opposition, p. 21. The Court disagrees.
It is important to note that Judge Miller’s review of the issue was under the standard of
review applicable to a motion to dismiss for failure to state a claim, which of course is quite
different, and certainly less onerous for a nonmovant, than the standard for a motion for summary
judgment. Judge Miller concluded only that Hartford Iron and Goldberg’s counterclaim for bad
faith survived under a Rule 12(b)(6) review. At this juncture, however, the standard of review is
19

much more exacting, and the record and arguments are much more developed. Most importantly,
however, the express language of the 2009 and 2012 Settlement Agreements make clear that the
parties intended the two Agreements to be read and interpreted as one. Accordingly, Judge
Miller’s observation that the 2012 Agreement “doesn’t bargain away” Valley Forge’s duty of
good faith because it does not include, as the 2009 Settlement Agreement does, a declaration that
it “is not intended to nor will it be construed as an insurance policy[]” is contrary to the express
terms and conditions contained in those Agreements, and Hartford Iron and Goldberg’s reliance
on that “holding” is misplaced.
The express terms of the Settlement Agreements make this clear. As Valley Forge states
it, “[a]ny duties VFIC owes to Hartford Inc. arise solely from the Agreements.” Plaintiff’s Reply
in Support of Motion for Partial Summary Judgment (ECF 819), p. 14. Valley Forge elaborates
as follows:
Contrary to Defendants’ assertion, this Court has never ruled that a special
relationship was created between Defendants and VFIC in the Agreements. . . .
Judge Miller noted in dicta in an Opinion and Order granting and dismissing parts
of VFIC’s Motion to Dismiss that the 2009 Agreement bargained away any duty
of good faith whereas “[t]he [2012 Agreement] doesn’t seem to so limit itself.” . .
. Judge Miller’s non-binding comments were made in connection with his analysis
under Rule 12, which was limited to whether Defendants’ allegations in their
counterclaim, taken in a light most favorable to them, merely alleged a valid cause
of action (versus the higher standard for summary judgment which requires that
Defendants produce evidence supported by undisputed facts).
Id. Valley Forge goes on to argue as follows:
Judge Miller correctly recognized that the 2009 Agreement bargained away any
duty of good faith. . . . The 2012 Agreement expressly states that “[t]he intent of
the parties is for this Second Agreement to supplement, rather than replace” the
2009 Agreement, which “the parties intend to continue to be bound by” except
there terms in the Agreements conflict.

20

Id., pp. 14-15. Valley Forge correctly states that courts must “‘look at the contract as a whole to
determine if a party is charge with a duty of care and . . . accept an interpretation of the contract
that harmonizes all its provisions.’” Id., p. 15 (quoting Ryan v. TCI Architects/Engineers/
Contractors, Inc., 72 N.E.3d 908, 914 (Ind. 2017)). Once again, the Court agrees. The plain
language of the Settlement Agreements controls, and that language makes clear that the parties
“bargained away” their insurance coverage and claims disputes in exchange for the negotiated
terms of the Settlement Agreements. A review of the relevant provisions of the two Agreements
makes this clear. The First Settlement Agreement includes the following provisions:
This Agreement is a negotiated settlement of a disputed claim and is not intended
to nor will it be construed as an insurance policy construction or interpretation.
Rather, it is the intent of Hartford Iron and VFIC in entering into this Agreement
merely to resolve the matters expressly referenced herein. This Agreement will
not be used for any purpose whatsoever to create, prove, or interpret any alleged
obligations under any policies with respect to any other claims that may be
asserted by Hartford Iron or any other person, corporation, governmental entity or
party against VFIC.
In the event that a court of competent jurisdiction determines that any provision in
this Agreement or its application thereof is invalid or unenforceable this
determination will not affect the remaining provisions of this Agreement, which
will remain valid and enforceable to the fullest extent permitted by law[.]
First Settlement Agreement (ECF 799-4), p. 4, ¶¶ 3.5 and 3.6. The first Agreement also contains
the following provisions under a section titled “Limited Release”:
Hartford Iron hereby releases VFIC and Prior Defense Counsel from any and all
liabilities, damages, claims, actions, causes of action, suits, claims for malpractice
or bad faith with respect to the handling or defense of the IDEM Claim from July
1, 2008, through the Effective Date of this Agreement. VFIC hereby releases
Hartford Iron, including its attorneys, from any and all liabilities, damages,
claims, actions, causes of action, suits, claims for malpractice or bad faith with
respect to the handling or defense of the IDEM Claim through the Effective Date
of this Agreement.

21

Hartford Iron hereby releases VFIC from claims for coverage of the IDEM Claim
under the Policies, except as provided in this Agreement.
Id., pp. 6-7, ¶¶ 6.1(a) and (b). The Second Settlement Agreement includes the following
provisions:
This Second Agreement is the result of a settlement and compromise of disputed
claims and assertions between and among the Parties in the Pending Litigation [in
state court], and is entered into without any admission of fact or liability with
respect to those claims and assertions.
...
The intent of the parties is for this Second Agreement to supplement, rather than
replace, the First Confidential Settlement Agreement and Limited Release (April
17, 2009). To the extent the terms of this Second Agreement conflict with the
First Confidential Settlement Agreement and Limited Release, this Second
Agreement controls; but in other respects the parties intend to continue to be
bound by their 2009 Settlement.
Second Settlement Agreement (ECF 6-1), p. 2, ¶ I and p. 4, ¶ I. This Court, then, reviews and
interprets the terms of the Settlement Agreements according to their plain language and the stated
intent of the parties. That language is clear: the second Agreement was intended to “supplement,
rather than replace” the first one, and the parties further expressly agreed that they “intend to
continue to be bound by their 2009 Settlement.” Accordingly, the waiver of claims set forth in
the first Agreement is still valid and enforceable, notwithstanding the fact that the second
Agreement did not repeat the phrase in the first Agreement that it “is not intended to nor will it
be construed as an insurance policy[.]” That intent is explicitly stated in the first Agreement and
is incorporated into the second Agreement as a result of the parties’ express agreement that the
second Agreement “supplement[s], rather than replace[s], the First [Agreement].”

22

The 2009 and 2012 Settlement Agreements were entered into by the parties after
negotiations between them and their attorneys. The Agreements set forth the rights and
obligations of both sides with regard to the procedure for completion of the remediation work
necessary to comply with the IDEM Agreed Order. The Agreements are contracts, negotiated
between sophisticated parties represented by counsel. Valley Forge filed this breach of contract
lawsuit alleging that Hartford Iron and Goldberg breached those contracts, and the Defendants
filed a counterclaim alleging that it was Valley Forge, not them, that is liable for breach.
Accordingly, Hartford Iron and Goldberg cannot maintain a tort claim for bad faith. As the
Indiana Court of Appeals has explained, “[o]ur supreme court has held, ‘[w]hen the parties have,
by contract, arranged their respective risks of loss, . . . the tort law should not interfere.’” Jaffri v.
JPMorgan Chase Bank, N.A., 26 N.E.3d 635, 638 (Ind. Ct. App. 2015) (quoting Greg Allen
Const. Co. v. Estelle, 798 N.E.2d 171, 175 (Ind. 2003)). See also Haegert v. Univ. of Evansville,
977 N.E.2d 924, 936 (Ind. 2012) (“Indiana does not recognize a distinct cause of action for
‘tortious breach of contract.’”) (quoting Allstate Ins. Co. v. Hammond, 759 N.E.2d 1162, 1166
(Ind.Ct.App.2001)); Comfax Corp. v. North American Van Lines, Inc., 587 N.E.2d 118, 123-24
(Ind.Ct.App. 1992) (declining to recognize a new claim in Indiana for tortious breach of
contract).
II. Hartford Iron and Goldberg’s motion for partial summary judgment on liability.
In their motion for partial summary judgment, Hartford Iron and Goldberg “ask[] the
Court for summary judgment as to Insurer’s liability (but not damages) for past breach, and it
seeks a trial on its further claim that Insurer breached its duty of good faith.” Hartford Iron’s
Summary of Issues for Cross-Motions for Partial Summary Judgment (ECF 830), p. 2. In other

23

words, Hartford Iron and Goldberg seek summary judgment on the main issue in this case: which
side breached the Settlement Agreements. Hartford Iron and Goldberg insist that the evidence
shows as a matter of law that Valley Forge, not the Defendants, breached the terms of the
Settlement Agreements. In their brief in support of their motion (ECF 799), the Defendants
contend that Valley Forge breached the Settlement Agreements in the following ways: 1) by
breaching “its duty to amend and carry out the Remediation Work Plan[,]” which was intended to
comply with the IDEM Agreed Order (id. at pp. 5-11); 2) by breaching “its duty . . . to ensure
‘prevention of illegal stormwater discharges’ at the Site” (id. at pp. 11-13); and 3) by breaching
“its duty to defend Hartford Iron” (id. at pp. 13-17). Within each of these three categories of
alleged breach, according to Hartford Iron and Goldberg, are countless facts that the Defendants
insist are undisputed and prove as a matter of law that Valley Forge breached the Settlement
Agreements by failing to perform its duties and obligations. The Defendants contend, for
example, that pursuant to the Second Settlement Agreement, Valley Forge “agreed to pay to
retain its own environmental contractor, [August Mack Environmental], to ‘carry out, at
[Insurer’s] expense, the Remediation Work Plan” and to submit that plan to IDEM for approval.
Id., pp. 4-5. Hartford Iron and Goldberg argue that Valley Forge “breached these express
obligations. Instead of providing even belated performance, [Valley Forge] now seeks to walk
away from its cleanup obligation entirely.” Id., p. 5. In support of this position, the Defendants
rely heavily on–and discuss at great length–the declaration of Jamie Dameron, an attorney that
Valley Forge hired (and subsequently tried to fire) to represent Hartford Iron and Goldberg in the
IDEM proceeding. Ms. Dameron’s declaration (ECF 798) is 77 pages long and includes 292
individual paragraphs. The declaration is replete with allegations of obstreperous conduct on the
24

part of Valley Forge and reads like a road map of the Defendants’ argument that Valley Forge
breached the Settlement Agreements in myriad ways by continually shirking the duties and
obligations it assumed when it entered into those Agreements. Valley Forge disputes virtually all
of the assertions in Dameron’s declaration and has moved to exclude it from the summary
judgment record. The declaration is but one piece of evidence among the thousands of pages of
evidence filed by the parties, and while the Court reviewed it, the Court did not rely on it in
arriving at its rulings on the cross-motions for summary judgment. That said, the Dameron
declaration and Valley Forge’s challenges to it (discussed below) serve to highlight the many
factual disputes and credibility challenges that exist in this case.
Hartford Iron and Goldberg go for broke in their motion, asking the Court to find as a
matter of law the following:
1) that “Valley Forge . . . is liable for breach of contract . . . due to its failure . . . to ‘carry out, at
[Insurer’s] expense, the Remediation Work Plan (July 31, 2012)’ and ‘to modify the Remediation
Work Plan to incorporate [IDEM] comments.’;
2) that Valley Forge “is liable for breach of contact . . . due to its failure . . . to ensure ‘prevention
of illegal stormwater discharge.”;
3) that Valley Forge “is liable for breach of contract . . . due to its failure . . . to ‘defend Hartford
Iron against the EPA and IDEM claims’ without reservation of rights.”;
4) that “[j]udgment is entered against [Valley Forge] on all claims for damages in its Second
Amended Complaint due to the failure of its “[in]terference claims.”; and
5) that “[j]udgment is entered against [Valley Forge] on all claims for damages . . . due to the
failure of its ‘[e]xhaustion’ claims.”
25

Defendants’ Motion for Partial Summary Judgment on Liability, pp. 4-5. In other words,
Hartford Iron and Goldberg are asking the Court to find as a matter of law that Valley Forge
breached the Settlement Agreements, enter judgment accordingly, and move on to the issue of
damages to be awarded to the Defendants. The Court admires the Defendants’ attempt to swing
for the fence, but at this juncture they strike out instead.
Valley Forge, of course, argues that it was the Defendants who repeatedly interfered with
Valley Forge’s contractual right to control the remediation process and the defense of the IDEM
claim. Valley Forge argues as follows:
The bargained-for exchange at the heart of the 2012 Agreement was VFIC’s
agreement to defend and indemnify Defendants against the regulatory matters
with IDEM and the [EPA] without reservation of rights in exchange for VFIC’s
exclusive control of the defense and remediation. . . . Almost immediately after
the execution of the 2012 Agreement, Defendants sought to position themselves
in an adversarial posture vis-a-vis VFIC, with a constant eye toward (and
threatening of) future litigation. This manifested itself in habitual unreasonable
restrictions by Defendants on environmental contractor August Mack
Environmental’s . . . access to the Property, Defendants’ delays in authorizing
work at the Property, and the Defendants’ overreactions to and exaggerations of
minor issues. From the start, VFIC was repeatedly and consistently denied the
essential element of its bargain–the right to control Defendants’ defense and “to
obtain approval for and to implement the most cost effective remediation work
plan for the site.” . . . Defendants’ obstruction and usurpation of VFIC’s
bargained-for control compelled VFIC to initiate this litigation.
Plaintiff’s Response in Opposition to Defendants’ Motion for Partial Summary Judgment (ECF
813), p. 3. Valley Forge then provides its own version of events in an attempt to show that
Hartford Iron and Goldberg are the parties who breached the Agreements. For example, Valley
Forge insists that “Defendants have never been amenable to sound, cost-effective remediation
options.” Id., p. 6. Valley Forge insists that its chosen environmental contractor, August Mack,
prepared a remediation plan that would comply with the mandates of the IDEM Agreed Order but
26

that Hartford Iron and Goldberg unreasonably interfered and objected to Valley Forge’s efforts.
Id. Valley Forge also contends that “Jamie Dameron’s unilateral ‘modification’ to the
remediation work plan was a breach of the 2012 Agreement.” Id., p. 7. Valley Forge explains this
allegation as follows:
Defendants’ first argument–that VFIC “prevented” defense counsel from
modifying the Remediation Work Plan–is based on a flagrant mischaracterization
of the facts and a misinterpretation of the plain terms of the 2012 Agreement.
After Hartford Inc. forced out its third appointed defense counsel (a material
breach of the 2012 Agreement . . .), VFIC retained attorney Jamie Dameron in
December 2013 to serve as Hartford Inc.’s defense counsel.
...
Dameron and Hartford Inc. completely ignored August Mack’s detailed
[remediation] proposal. Instead, and despite that the 2012 Agreement obligated
VFIC, through August Mack, to perform this task, Dameron forged ahead and
prepared, and ultimately submitted to IDEM, proposed modifications to the
Remediation Work Plan providing for excavation down to clay across the entire
Property.
...
VFIC’s counsel implored Dameron and Hartford Inc. to have a discussion,
advising that there is insufficient data to justify their planned “extensive soil
excavation” and that such is not mandated by IDEM.
Id., pp. 6-9.
In their brief in support of their motion for summary judgment on liability, Hartford Iron
and Goldberg present their own laundry list of breaches by Valley Forge, alleging, inter alia, that
Valley Forge breached the Settlement Agreements by failing to submit a “Remediation Work
Plan” that complied with IDEM directives; deliberately interfering with the work of its appointed
defense counsel, Jamie Dameron; “failing to prevent illegal discharge of stormwater on at least
thirty-nine separate violation days from December 4, 2012 (the date of the Second Settlement)
through August 2017[]; and failing to fulfill its duty to defend against the IDEM and EPA claims.
27

Defendants’ Brief in Support (ECF 799), pp. 5-17 (underlining in original).
The Court could discuss dozens of such examples of material factual disputes between
the parties (and even more immaterial ones), but that is unnecessary. It is clear, as it has been for
many years, that the parties to this lawsuit fiercely dispute and argue about virtually every action
they other side allegedly took to interfere and obstruct the other. This case is one in which the
parties are completely at loggerheads. Both sides have long since dug in their heels on their
respective positions, resulting in a battle between an irresistible force and an immovable object.
Put another way, they are engaged in a classic (and epic) swearing contest. “As we have said
many times, summary judgment cannot be used to resolve swearing contests between litigants.”
Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887, 893 (7th Cir. 2018). “Although these
common refrains are familiar, the task is often easier to describe than to perform, and plenty of
credibility-weighing traps lay before a court, particularly in such fact-intensive cases.” Id. at 894
(citing Payne, 337 F.3d at 771). That is the situation here, where there are so many disputed facts
regarding who did what to whom and when that resolution of the ultimate issue of which side is
liable to the other for breach is not one that can be decided on summary judgment and must
proceed to trial. “The issue whether a party has materially breached an agreement is a question of
fact, dependent on a variety of factors.” Watson Water Co., Inc. v. Indiana-Am. Water Co., Inc.,
85 N.E.3d 840, 849 (Ind.Ct.App. 2017), reh’g denied (Feb. 22, 2018) (citing Coates v. Heat
Wagons, Inc., 942 N.E.2d 905, 917 (Ind.Ct.App. 2011)).
Part of the summary judgment standard of review set forth above bears repeating here:
“When evidentiary facts are in dispute, when the credibility of witnesses may be in issue or when
conflicting evidence must be weighed, a full trial is necessary regardless of whether it is a bench
28

or a jury trial.” Stewart Title Guar. Co. v. Residential Title Servs., Inc., 607 F.Supp.2d 959, 96162 (E.D. Wis. 2009) (citing William Schwarzer, Alan Hirsch & David Barrans, The Analysis &
Decision of Summary Judgment Motions, 139 F.R.D. 441, 474 (1991) (in turn quoting
Fed.R.Civ.P. 56(e) advisory committee’s notes (amended 1963)). Id. “[T]he appropriate time for
the Court to weigh the evidence and reach factual conclusions is at trial.” Thornton v. Hamilton
Sundstrand Corp., 121 F. Supp. 3d 819, 826-27 (N.D. Ill. 2014), aff’d sub nom. Thornton v. M7
Aerospace LP, 796 F.3d 757 (7th Cir. 2015) (citing Casey v. Uddeholm Corp., 32 F.3d 1094,
1099 (7th Cir.1994) (“[T]he appropriate proceedings for such fact-finding is a bench trial and not
the disposition of a summary judgment motion.”)). More to the point is this: “It is true that cases
with jumbles of ostensibly disputed facts often signal the need for a trial on the facts.” Johnson v.
Advocate Health & Hosps. Corp., 892 F.3d 887, 893 (7th Cir. 2018) (citing Payne v. Pauley, 337
F.3d 767, 770 (7th Cir. 2003)).
For the foregoing reasons, Hartford Iron and Goldberg’s motion for partial summary
judgment on the issue of liability must be denied and the issue of liability presented for trial.
III. Motions to exclude evidence under Rule 56.1(e).
A. Defendants’ motion to exclude evidence.
Both sides filed motions asking the Court to exclude certain evidence submitted by the
other on summary judgment. Hartford Iron and Goldberg filed a motion raising numerous
challenges to some of Valley Forge’s evidence, mostly statements made in affidavits or
declarations. Defendants’ Motion to Exclude Evidence (ECF 825).
Hartford Iron and Goldberg’s motion to exclude evidence really goes deep into the weeds.
They seek to exclude certain testimony of specific witnesses on very specific points. Their
29

challenges, however, mostly go to the weight to be given that testimony or the credibility of the
witness providing it, rather than its admissibility. Also, the evidence they seek to exclude was not
evidence on which the Court relied in arriving at its rulings on the cross-motions for summary
judgment. For these reasons the Court denies the motion as moot.
Hartford Iron and Goldberg challenge the following evidence submitted by Valley Forge:
1) “[A] 2-page declaration dated November 1, 2018 by John Goldwater[,]” which the Defendants
contend “is inadmissible because it does not meet the requirements of Federal Rule 26(a)(2) for
an expert report or supplement.”
2) An interrogatory response from Valley Forge regarding the issue of “policy limits.”
3) “Sealed state court briefs” from the Blackford Circuit Court litigation between the parties;
4) A “claimed insurance certificate” concerning whether Hartford Iron “was added as an
additional named insured on [August Mack’s] insurance policies[,]” which the Defendants insist
is inadmissible because it is unauthenticated.
5) A “May 2013 e-mail chain with attorney M. Maher[,]” which the Defendants contend is
inadmissible because the communications were intended to be privileged.
6) Portions of the declaration of James Berndt of August Mack Environmental, which the
Defendants insist “is irrelevant to key summary judgment issues” and includes hearsay.
Id., pp. 1-20.
Hartford Iron and Goldberg’s motion reads like an attempt to try their case on paper.
Most of their arguments fail because they go to the weight to be given certain evidence rather
than its admissibility. In fact, the objections presented in the motion only serve to highlight the
many factual disputes in this case that must be resolved at trial. Many of the objections also
30

highlight the need for credibility determinations (in fact, they create credibility issues). Finally,
many of the Defendants’ evidentiary challenges are more properly the subjects of motions in
limine rather than motions to exclude evidence at the summary judgment stage. All of that said,
the reason the Court denies Hartford Iron and Goldberg’s motion is because the Court did not
rely on any of the challenged evidence to arrive at its conclusions on the issues presented in the
cross-motions for summary judgment. The Defendants, of course, can renew their challenges to
the evidence if it is presented at trial, either through a motion in limine, objections during trial, or
cross-examination.
B. Plaintiff’s motion to exclude evidence.
Valley Forge objects to testimony presented in a declaration by Jamie Dameron and an
affidavit by Alan Goldberg. Plaintiff’s Motion to Exclude Evidence (ECF 837). Valley Forge
writes that it “files this motion seeking the entry of an order excluding as inadmissible some or
all of Jamie Dameron’s declaration (ECF 798) and Alan Goldberg’s affidavit (ECF 798-9)[.]”
Id., p. 1. As to the former, Valley Forge contends that “[i]n the case of Dameron’s testimony, she
testified that she had to suspend most of her work for long periods of time yet offers detailed
testimony about events with which she could not be involved (and in some instances even admits
she was not involved) given her “suspended” status. Dameron’s testimony is also replete with
legal conclusions, argument, and improper opinion testimony.” Id. As to the latter, Valley Forge
argues that “[w]ith respect to Goldberg’s affidavit, he testified about payroll details dating back
more than four decades that he purports to recall from memory and for which he offers no
evidence, just self-serving speculation.” Id.

31

Valley Forge has a point regarding the Jamie Dameron declaration, which the Court
acknowledges includes statements that could be considered legal conclusions and argument. But
much like Hartford Iron and Goldberg’s motion to exclude, most of Valley Forge’s arguments
really challenge the weight to be given to Dameron’s testimony as well as her credibility. It is not
necessary, however, to parse through Dameron’s declaration hunting for inadmissible legal
conclusions or improper opinion testimony, since the Court did not rely on any part of
Dameron’s declaration when arriving at its conclusions on the issues presented on summary
judgment. Dameron’s declaration is referenced above only for the purpose of highlighting the
many factual disputes that exist in this case and why trial is necessary on the issue of which side
breached the Settlement Agreements. Despite Valley Forge’s arguments, much of Dameron’s
testimony is admissible and relevant to the issue of breach, although Valley Forge can challenge
those portions of her declaration that it considers inadmissible through a motion in limine and
objections during trial, and can challenge her credibility on certain points through crossexamination. At this juncture, however, given that the Court did not rely on any part of
Dameron’s declaration to arrive at its conclusions, the motion to exclude her testimony, in whole
or in part, is denied. Carpet Serv. Int’l, Inc. v. Chicago Reg’l Council of Carpenters, 2010 WL
234912, at *7 (N.D. Ill. Jan. 14, 2010) (“[T]he court did not rely on [a witness’] declaration in
denying Defendants’ Motion for Summary Judgment. It was therefore unnecessary to consider
the substance of Defendants’ Motion to Strike[.]”); See also, Passmore v. Barrett, 2015 WL
3737137, at *6 (N.D. Ind. June 15, 2015) (denying as moot a motion to strike evidence because
“the court did not rely on the [challenged evidence] to decide the Motion for Summary
Judgment.”).
32

As to Alan Goldberg’s affidavit, the challenged testimony is irrelevant in light of the
Court’s conclusion regarding the issue of an indemnity cap.9 The challenged testimony is relevant
only to the “coverage” issue, which the Court has concluded is actually not an issue, and
therefore Valley Forge’s motion to exclude this testimony is denied as moot.
IV. Alan Goldberg motion for judgment on the pleadings.
A. Standard of review.
While Goldberg titled his pleading as a “Motion for Partial Summary Judgment,” he
acknowledges that “it may also be treated as a motion for judgment on the pleadings.” Goldberg
Motion for Partial Summary Judgment (ECF 796), p. 1. That is because Goldberg challenges
Valley Forge’s claims without venturing beyond the four corners of the Second Amended
Complaint (and its attached document–the 2012 Settlement Agreement). Therefore, Goldberg’s
motion does not need to be converted to or analyzed as a motion for summary judgment since he
does not rely on evidence outside the pleadings to support his motion. He argues that the
allegations contained in the Second Amended Complaint, on their face, fail to state any claim
against him. For these reasons, his Motion for Partial Summary Judgment or alternatively for
judgment on the pleadings will be treated as the creature it actually is, which is a motion for
judgment on the pleadings under Rule 12(c). Accordingly, the Court will assess it pursuant to the
standard of review for motions under Fed.R.Civ.P. 12(c). This Court recently explained that
standard of review as follows:
9

The testimony by Goldberg that Valley Forge seeks to exclude goes directly to the
Defendants’ argument that the insurance policies underlying this dispute provide for $300
million in coverage rather than $15 million as Valley Forge contends. Since the Court concludes
that this argument is irrelevant, the testimony itself is likewise irrelevant and was not considered
by the Court.
33

Federal Rule of Civil Procedure 12(c) permits a party to move for judgment on the
pleadings after the parties have filed the complaint and answer, but early enough
not to delay trial. “A motion for judgment on the pleadings under Rule 12© of the
Federal Rules of Civil Procedure is governed by the same standards as a motion to
dismiss for failure to state a claim under Rule 12(b)(6). A motion to dismiss under
Rule 12(b)(6) doesn’t permit piecemeal dismissals of parts of claims; the question
at this stage is simply whether the complaint includes factual allegations that state
a plausible claim for relief.” BBL, Inc. v. City of Angola, 809 F.3d 317, 325 (7th
Cir. 2015) (emphasis omitted) (internal quotation marks and citations omitted);
see also Bishop v. Air Line Pilots Ass’n, Int’l, 900 F.3d 388, 396 (7th Cir. 2018)
(surviving a Rule 12(c) motion requires that the complaint “state a claim to relief
that is plausible on its face”) (first quoting Milwaukee Police Ass’n v. Flynn, 863
F.3d 636, 640 (7th Cir. 2017); then quoting Wagner v. Teva Pharm. USA, Inc.,
840 F.3d 355, 358 (7th Cir. 2016)).
In evaluating a motion for judgment on the pleadings, the Court must accept the
non-movant’s factual allegations as true and draw all reasonable inferences in its
favor, but it need not accept as true any legal assertions. Wagner v. Teva Pharm.
USA, Inc., 840 F.3d 355, 358 (7th Cir. 2016). The court’s review is limited to the
pleadings; however, it may also take into consideration documents incorporated
by reference into the pleadings and matters properly subject to judicial notice.
Flynn, 863 F.3d 636, 640 (7th Cir. 2017). The court cannot consider matters
outside these areas without converting the motion into one for summary judgment.
See Fed.R.Civ.P. 12(d); Omega Healthcare Investors, Inc. v. Res-Care, Inc., 475
F.3d 853, 856 n.3 (7th Cir. 2007).
Birch|Rea Partners, Inc. v. Regent Bank, 2019 WL 2067358, at *1 (N.D. Ind. May 10, 2019). See
also, Gonzalez v. O’Brien, 2019 WL 2566525, at *3 (N.D. Ill. June 21, 2019) (“A motion for
judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure is governed
by the same standards as a motion to dismiss for failure to state a claim under Rule 12(b)(6). . . .
In addition, a Rule 12(c) motion is appropriate only when ‘it is clear that the merits of the
controversy can be fairly and fully decided in this summary manner.’ WRIGHT & MILLER,
FEDERAL PRACTICE AND PROCEDURE, § 1369 (3d ed.).”) (quoting Birch|Rea Partners, Inc., 2019
WL 2067358 * 1) (additional internal citation omitted)). Also, “Rule 12 is designed to ensure
that certain threshold defenses are addressed early in a case. . . . The rule does not authorize a
34

defendant to preserve the defense by pleading it in an answer and then waiting to spring a trap
late in the case.” Leslie v. St. Vincent New Hope, Inc., 873 F.Supp. 1250, 1252 (S.D. Ind. 1995).
B. Discussion.
Goldberg contends that he should not be a defendant in this lawsuit because Valley Forge
states no claim or cause of action against him individually. Goldberg argues as follows:
Goldberg files this motion to separately request partial judgment against the
plaintiff Valley Forge Ins. Co. (Insurer) on all claims against him personally (a)
for monetary damages–to the extent such claims exist against him at all or (b) for
a declaration of rights that he personally breached any obligation to Insurer. This
motion may also be treated as a motion for judgment on the pleadings.
Goldberg Motion for Partial Summary Judgment, p. 1. Goldberg elaborates as follows:
Goldberg is identified by name only three times in Insurer’s Second Amended
Complaint:
• In ¶ 1, he is incorrectly identified as the owner of the real estate where Hartford
Iron is located (Goldberg is only a former owner).
• In ¶ 22, Goldberg is correctly identified as a citizen of Indiana.
• In ¶ 31, Goldberg is correctly identified as being insured under “certain
comprehensive liability insurance policies,” though he transferred his interest
under these policies to Hartford Iron before this suit. . . .
• For clarification, in ¶ 57, “Goldberg” refers to Mr. Scott Goldberg, who is Alan
Goldberg’s son.
In the Complaint, Insurer does not include Goldberg personally in its use of the
term “Hartford Iron,” which it defined in ¶ 1 as limited to Hartford Iron & Metal,
Inc., the incorporated business.
Regarding damages, Insurer alleges breach of contract and damages only in Count
V of the Complaint. This Count does not reference Goldberg, nor does it allege
any breach by him. Insurer fails to allege that Goldberg could have liability for
damages, and judgment should properly be entered in his favor to the extent
Insurer now seeks to assert that such a claim even exists.

35

Id., pp. 1-2.
Valley Forge argues that Goldberg is a proper defendant in this case and has been since it
was filed five and a half years ago. Valley Forge argues as follows:
[A]s is ascertained from the allegations in the [Second Amended] Complaint, as
well as the information learned throughout this litigation issues of material fact
exist as to whether Goldberg and Hartford Inc. are separate and distinct from each
other. Thus, there is a triable issue of material fact as to who ultimately breached
the Settlement Agreements. . . . [T]he Court should deny Goldberg’s Motion for
Judgment on the Pleadings because the Complaint’s detailed allegations regarding
Defendants’s breach of the 2012 Settlement Agreement entered into between the
parties more than plausibly state that Goldberg is personally liable for these
alleged breaches or, in the alternative, allow VFIC leave to file a third amended
complaint so as to more clearly articulate that the allegations and claims in the
Complaint are alleged against both Hartford Inc. and Goldberg.
Response in Opposition (ECF 817), pp. 2-3. Valley Forge insists “it is clear that Goldberg is
fishing here and is merely seeking to insulate himself from any potential liability through the use
of an easily amendable procedural technicality.” Id., p. 4. Valley Forge also insists that its Second
Amended Complaint meets the federal pleading requirement “to provide a short and plain
statement that provides the defendants with notice of the claim being asserted, and supply enough
factual matter, taken as true, to suggest a violation.” Id., p. 3 (citing Bell Atl. Corp. v. Twombly,
550 U.S. 544, 554-55 (2007)). Valley Forge argues that “[i]n the 2012 Settlement Agreement,
‘Hartford Iron’ is defined to include both Hartford Inc. and Goldberg[]” and that “Goldberg is
aware that the use of the term ‘Hartford Iron’ throughout the Complaint is deemed to include
both Goldberg and Hartford Inc.” Id., pp. 4-5. Valley Forge claims “[i]t is obvious that
Defendants understood this to be the case as well given the fact that Goldberg did not even bring
this motion until approximately four years after this litigation was filed.” Id., p. 5.

36

In reply to Valley Forge’s contention that his motion was filed inexplicably late in these
proceedings, Goldberg in turn expresses incredulity at Valley Forge’s offer to amend its
complaint “at this late date[.]” Alan B. Goldberg/dba Hartford Iron & Metal Summary of Issues
(ECF 831), p. 2. He insists that Valley Forge “improperly seeks to use its response [brief] as a
tardy motion to amend its complaint.” Goldberg Reply (ECF 820), p. 1. But if either party has
been dilatory here it is Goldberg. Five and a half years after this suit was filed, and nearly two
years after the close of discovery, Goldberg argues for the first time that he should be dismissed
as a defendant in this lawsuit because the Second Amended Complaint (which was filed four and
a half years ago) fails to state any claim against him.
This case arises out of the 2009 and 2012 Settlement Agreements entered into by the
parties. Goldberg was a party to both Agreements, signing them as “Alan B. Goldberg, d/b/a
Hartford Iron.” 2009 Settlement Agreement (ECF 799-4), p. 11; 2012 Settlement Agreement
(ECF 6-1), p. 7. Hartford Iron & Metal, Inc., the other Defendant, was a signatory to the
Agreements through its president, Scott Goldberg. Id. The 2009 Agreement includes the
following opening paragraph:
This Confidential Settlement Agreement and Limited Release . . . is entered into
this 17th day of April, 2009, by and between Hartford Iron & Metal, Inc. and Alan
B. Goldberg DBA Hartford Iron and Metal (jointly referred to herein as “Hartford
Iron”) and Valley Forge Insurance Company. . . . Hartford Iron and VFIC are
collectively referred to as the “Parties.”
(ECF 799-4), p. 1. The 2012 Agreement includes the following opening paragraph:
This Second Confidential Settlement Agreement and Limited Release . . . is
entered into this 4th day of December 2012, by and between Hartford Iron &
Metal, Inc. and Alan B. Goldberg DBA Hartford Iron & Metal (jointly referred to
herein as “Hartford Iron”) and Valley Forge Insurance Company . . . . Hartford
Iron and Valley Forge are collectively referred to as the “Parties.”
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(ECF 6-1), p. 1.
Alan Goldberg has been a defendant in this case since it was filed on January 10, 2014.
The original Complaint named Goldberg and Hartford Iron & Metal, Inc., as defendants.
Complaint (ECF 1). The now-controlling Second Amended Complaint, filed on April 22, 2015,
names the same defendants. Second Amended Complaint (ECF 74). The Second Amended
Complaint asserts that Goldberg and Hartford Iron breached the 2009 and 2012 Settlement
Agreements by unreasonably interfering with Valley Forge’s attempts to comply with those
Agreements, and as a result Goldberg and Hartford Iron are liable to Valley Forge.10 Goldberg
and Hartford Iron filed their Answer on June 8, 2015 (ECF 78), along with their counterclaim
against Valley Forge in which they assert a bad faith claim. Since that time, this case has
continued on a long, slow trek down a tortuous path. The parties have battled fiercely for years.
Now, more than five and a half years after the case was filed and four and a half years after the
filing of the Second Amended Complaint, Goldberg insists that Valley Forge’s Complaint fails to
state a viable claim against him.

10

Goldberg and Hartford Iron moved for dismissal of Valley Forge’s Amended
Complaint pursuant to Fed.R.Civ.P. 12(b)(6) on March 20, 2014 (ECF 18), but the motion was
denied by Judge Miller on January 21, 2015 (Court Order, ECF 28). In that motion, Hartford Iron
and Goldberg stated as follows: “The defendants Hartford Iron & Metal, Inc. and Alan B.
Goldberg (together, ‘Hartford Iron’) respectfully move to dismiss the Amended Complaint . . .
for failure to state a claim and pursuant to this Court’s discretion regarding declaratory actions.”
Motion to Dismiss (ECF 18), p. 1. Hartford Iron and Goldberg have presented themselves–and
litigated this case–as separate and distinct parties throughout its very long history.
38

Goldberg answered the Second Amended Complaint11, participated in discovery, and
joined Hartford Iron in its counterclaim for bad faith (now a counterclaim for breach of contract).
But most significantly, Goldberg was a signatory to the Settlement Agreements separate and
apart from Hartford Iron & Metal, Inc.–the latter is a party to the Agreements by and through its
President, Scott Goldberg, and Goldberg signed separately as “DBA Hartford Iron.” As the Court
stated above, this case is a breach of contract case. The parties to the contract (i.e., the 2009 and
2012 Settlement Agreements) are Valley Forge Insurance Company, Hartford Iron & Metal, Inc.,
and Alan B. Goldberg, doing business as Hartford Iron & Metal. Hartford Iron & Metal, Inc., and
Alan B. Goldberg were the named defendants in this case from its inception and Goldberg has
filed numerous pleadings and motions in this litigation separate from Hartford Iron & Metal, Inc.
Like Valley Forge, this Court has understood the parties to this breach of contract action to be
Valley Forge, Hartford Iron, and Alan Goldberg, and the Defendants have never argued
otherwise until Goldberg filed his present motion. It strains credulity that Goldberg should be
heard to protest at this juncture that Valley Forge’s Second Amended Complaint fails to provide
him with sufficient notice of the claims being asserted against him or fails to state a viable claim
against him after having litigated the case, alongside the corporate defendant, Hartford Iron &
Metal, Inc., for years (and after failing in his first attempt to seek dismissal under Rule 12(b)(6)).
As quoted above, Goldberg asserts in his motion that Valley Forge’s Second Amended
Complaint “does not include Goldberg personally in its use of the term ‘Hartford Iron,’ which it
11

In their Answer, Hartford Iron and Goldberg state as follows: “The defendants and
counterclaimants Hartford Iron & Metal, Inc. and Alan B. Goldberg /dba Hartford Iron & Metal
(together, “Hartford Iron”) answer the Second Amended Complaint . . . as follows[.]”
Defendants’ Answer, p. 1. So even the Defendants refer to themselves by the collective pronoun
“Hartford Iron.”
39

defined in ¶ 1 as limited to Hartford Iron & Metal, Inc., the incorporated business.” Goldberg
Motion, p. 2. That paragraph from the Complaint states in its entirety as follows: “Valley Forge
seeks this Court’s assistance in fulfilling its agreement to fund the remediation of a scrap metal
recycling operation located at 209 S. Division Street, Hartford City, Indiana (the ‘Site’) operated
by Hartford Iron & Metal, Inc. (‘Hartford Iron’) on property owned by Alan B. Goldberg.”
Amended Complaint, p. 1, ¶ 1. This is the paragraph Goldberg contends “defined” Hartford Iron
“as limited to Hartford Iron & Metal, Inc., the incorporated business.” The Court does not read
that paragraph the way Goldberg does; that is, the Court does not interpret the statement to mean
that Hartford Iron & Metal, Inc., and Alan Goldberg, d/b/a Hartford Iron are defined as one and
the same. And while it is true that Alan Goldberg’s name is mentioned only a few times in the
Second Amended Complaint, and that the Complaint mostly refers to the two Defendants
collectively as “Hartford Iron,” this is hardly a sufficient basis to find that the Complaint fails as
a matter of law to state any claim against Goldberg individually.
Valley Forge’s Second Amended Complaint is 43 pages long and includes 230 numbered
paragraphs. Those 230 paragraphs include detailed factual assertions as well as allegations of
breach of the 2009 and 2012 Settlement Agreements. The Complaint is so detailed that the Court
does not have to draw many inferences: it is chock-ful of allegations of instances of breach on the
part of the Defendants. Valley Forge insists the term “Hartford Iron” is nothing more than a
grammatical shorthand to refer to two Defendants–the incorporated business and Goldberg.
Valley Forge’s argument is convincing, especially given the history of this litigation.
In his order denying the Rule 12(b)(6) motion to dismiss filed by Hartford Iron and
Goldberg in 2014, Judge Miller wrote as follows:
40

Hartford Iron also contends Valley Forge simply pleaded facts that are consistent
with liability, and so failed to state a legal claim. The court can’t agree. The
complaint describes several actions that, taken as true, show Hartford Iron isn’t
cooperating in the remediation of the site, isn’t complying with its agreement to
allow Valley Forge to control the defense, and is restricting access to the site.
Valley Forge therefore pleaded facts that allow the court to draw reasonable
inferences that Hartford Iron breached the Settlement Agreement.
Opinion and Order denying motion to dismiss (ECF 28), p. 18. In yet another example, the Court
stated: “The court refers to both Hartford Iron & Metal, Inc. and Alan B. Goldberg as ‘Hartford
Iron’ for purposes of this order.” Opinion and Order (ECF 298), p. 1 (Judge Miller, denying
Valley Forge’s first motion for partial summary judgment).
This Court, then, ruled that the allegations in Valley Forge’s Complaint survived Hartford
Iron’s and Goldberg’s motion to dismiss. And while that motion to dismiss challenged a
Complaint that has been supplanted by the now-controlling Second Amended Complaint, the
allegations against the Defendants remained the same. As Magistrate Judge Susan Collins
explained in her order granting Valley Forge’s motion for leave to file its Second Amended
Complaint:
Defendants Hartford Iron & Metal, Inc., and Alan B. Goldberg (together,
“Hartford Iron”) oppose the motion, claiming that it is futile, merely protracts this
litigation and complicates the defense, and improperly seeks to introduce
settlement materials to the pleadings.
...
But here the Second Amended Complaint does not add any new claims, and the
first Amended Complaint has already withstood a motion to dismiss. And . . . , the
proposed amendments seek to add more recent information to more accurately
reflect the current controversies, not stale information that could have been
presented much earlier.
Opinion and Order (ECF 73), pp. 1, 6. Shortly after Judge Collins’ ruling, Hartford Iron and

41

Goldberg filed their Answer to the Second Amended Complaint, along with their counterclaim
alleging bad faith against Valley Forge. In that counterclaim, the Defendants stated as follows:
9. The third-party plaintiff and counterclaimant Hartford Iron & Metal, Inc.
(“Hartford Iron”) is incorporated in Indiana and has its principal place of business
in Hartford City, Indiana.
10. The third-party plaintiff and counterclaimant Alan B. Goldberg /dba Hartford
Iron & Metal was the predecessor business of Hartford Iron & Metal, Inc. and was
operated as a sole proprietorship in Indiana with its principal place of business in
Hartford City, Indiana. Alan B. Goldberg, personally, is a resident of Indiana.
Counterclaims and Third-Party Complaint (ECF 79), p. 6.
In summary, Hartford Iron & Metal, Inc., and Alan Goldberg, d/b/a Hartford Iron, were
sued as separate defendants and have litigated this case as such for years, with Valley Forge, the
Court, and even the Defendants themselves using the pronoun “Hartford Iron” to refer to the two
named Defendants. The Court’s conclusion today, however, is not based only on the fact that the
parties and the Court have all referred repeatedly to the Defendants as “Hartford Iron.” Rather, it
is based on the undisputed fact that Hartford Iron & Metal, Inc., and Alan B. Goldberg, d/b/a
Hartford Iron, both signed the 2009 and 2012 Settlement Agreements out of which this litigation
arises. The detailed factual assertions and allegations in the Second Amended Complaint are
more than sufficient to put Goldberg on notice of the claims against him, which are that he–along
with Hartford Iron, the corporation–breached the Settlement Agreements in myriad ways. Those
allegations refer to the Defendants jointly as “Hartford Iron” for the sake of convenience, but that
does not mean that they fail to inform either Defendant of the nature of the allegations against
them. And given the manner in which the Defendants have litigated this case, neither can present
a persuasive argument now that the Second Amended Complaint fails to state a claim against

42

them as a matter of law, which is the conclusion Goldberg asks this Court to adopt.
“To succeed on a motion for judgment on the pleadings, ‘the moving party must
demonstrate that there are no material issues of fact to be resolved,’ even with the court viewing
all facts in the light most favorable to the nonmoving party.” Hanover Ins. Co. v. BMOC, Inc.,
2019 WL 949215, at *1 (W.D. Wis. Feb. 27, 2019) (quoting N. Ind. Gun & Outdoor Shows, Inc.
v. City of S. Bend, 163 F.3d 449, 452 (7th Cir. 1998)); see also, Whitaker v. Varsity Contractors,
Inc., 2003 WL 21696529, at *3 (S.D. Ind. May 20, 2003) (“To prevail on a motion for judgment
on the pleadings, the Defendant must show that there are no material issues of fact and that it is
entitled to judgment as a matter of law.”) (citing N. Ind. Gun & Outdoor Shows, 163 F.3d at
452). The flip-side of this is that “[t]o survive a motion for judgment on the pleadings, a
complaint must ‘state a claim to relief that is plausible on its face.’” Wagner v. Teva Pharm.
USA, Inc., 840 F.3d 355, 357-58 (7th Cir. 2016) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “A claim has ‘facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In this instance, Goldberg
has failed to carry his burden. The Court, after reviewing Valley Forge’s Second Amended
Complaint and the 2012 Settlement Agreement attached to it, and drawing all reasonable
inferences in favor of Valley Forge, concludes that the Complaint states causes of against
Hartford Iron, the incorporated business, and Alan Goldberg, individually, for breach of the
Settlement Agreements. For these reasons, the Motion for Judgment on the Pleadings filed by
Defendant Alan Goldberg (ECF 796) is denied.

43

CONCLUSION
For the reasons set forth above, the Court holds as follows:
1) The motion for partial summary judgment or, in the alternative, for judgment on the pleadings
filed by Defendant Alan Goldberg (ECF 796) is DENIED;
2) The motion for partial summary judgment filed by Defendant Hartford Iron & Metal (ECF
797) is DENIED;
3) The motion for partial summary judgment filed by Valley Forge (ECF 801) is GRANTED in
part and DENIED AS MOOT in part;
4) The motion to exclude evidence filed by Hartford Iron (ECF 825) is DENIED AS MOOT;
and
5) The motion to exclude evidence filed by Valley Forge (ECF 837) is DENIED AS MOOT.

Date: October 30, 2019.

/s/ William C. Lee
William C. Lee, Judge
U.S. District Court
Northern District of Indiana

44