Property-Owners Insurance Company v. Virk Boyz Liquor Stores, Inc. et al
Filing
36
OPINION AND ORDER DENYING 26 MOTION for Summary Judgment by Plaintiff Property-Owners Insurance Company. This action is DISMISSED WITHOUT PREJUDICE as to the determination of Plaintiff Property-Owners Insurance Company's duty to indemnify. Signed by Chief Judge Philip P Simon on 11/9/16. (cer)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
PROPERTY-OWNERS INSURANCE
COMPANY,
Plaintiff,
vs.
VIRK BOYZ LIQUOR STORES, LLC
d/b/a KPC LIQUOR STORES, INC.,
KPC LIQUOR STORES, INC. d/b/a
STEIN TAVERN, TERRY J. WOODS,
and DWAYNE E. RUSSELL,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
NO. 1:15-cv-87
OPINION AND ORDER
This is a declaratory judgment action in which Property-Owners Insurance
Company seeks a declaration that it has no duty to defend or indemnify its client, Virk
Boyz Liquor Store, the owner of a place called Stein Tavern. Virk Boyz was sued in
state court for damages arising out of a bar fight that occurred at Stein Tavern.
Property-Owners seeks summary judgment on both the issue of whether it has a duty
to defend Virk Boyz and also a duty to indemnify it. [DE 26.] But because there are
disputed questions of fact, summary judgment is denied on the duty to defend issue,
and because the issue of indemnity is not ripe, that portion of this action is dismissed
without prejudice.
Factual Background
Terry Woods was a patron at Stein Tavern on December 28, 2013, and admits
that he drank to intoxication. Woods was involved in an altercation at the bar that night
and was seriously injured as a result. Approximately eight months later, Woods filed a
case against the bar owner (the defendant in our case) in state court and alleged four
separate causes of action. Count I is a negligence claim based on a failure to intervene
theory. In particular, Woods claims that he was assaulted by another customer after he
had requested assistance in fending off an impending attack. [DE 10-2 ¶ 5.] Woods says
in Count I that Dwayne Russell, the Stein Tavern bartender, failed to protect him and
negligently failed to intervene to stop the assault. [Id. ¶ 7.] Count II states a claim for
negligently hiring Russell. Count III states a claim for negligent failure to train Russell.
Finally, Count IV is a dram-shop claim. In it Woods alleges that Stein Tavern furnished
alcoholic beverages to him when he “was visibly intoxicated and was served additional
alcoholic beverage to a state of further intoxication” and the intoxication “was an actual
and proximate cause of the incident and serious and permanent injuries to Plaintiff.”
[Id. ¶¶ 24, 26.] Woods was seriously injured during the bar fight and suffered
permanent partial paralysis.
While not included in the allegations in the underlying complaint, PropertyOwners sets forth additional facts in its statement of material facts in support of this
motion. This is where I first learned that the bartender, Russell, was actually involved
in the altercation. Property-Owners tells me that Woods “was injured after he was
2
struck several times with a pool cue across his upper back and neck, punched in the
face with a closed fist and ‘body-slammed’ to the floor by Dwayne Russell” [DE 26-1 at
¶ 3] and that Russell pled guilty to one count of aggravated battery and one count of
battery [Id. at ¶ 4]. Property-Owners also submitted a video of the incident which I
have reviewed. [DE 26-7.]
Ultimately, Virk Boyz demanded that Property-Owners defend and indemnify it
in the underlying lawsuit, and Property-Owners agreed to defend but only under a
reservation of rights. Property-Owners now asks me to find that there is no coverage
under the insurance policy for the underlying lawsuit, and also that there is no duty to
defend Virk Boyz as well.
The operative Policy of Commercial General Liability Insurance issued by
Property-Owners contains the following exclusion:
c.
Liquor Liability
“Bodily injury” or “property damage” for which any insured may
be held liable for reason of:
(1) Causing or contributing to the intoxication of any person;
(2) The furnishing of alcoholic beverages to a person under
the legal drinking age or under the influence of alcohol; or
(3) Any statute, ordinance, or regulation relating to the sale,
gift, distribution or use of alcoholic beverages,
This exclusion applies only if you are in the business of
manufacturing, distributing, selling, serving or furnishing alcoholic
beverages.
[DE 10-5.]
3
Additionally, the Policy provides the insurance applies to “bodily injury” and
“property damage” only if the “bodily injury” or “property damage” is caused by an
“occurrence.” [Id.] An “occurrence” is defined by the Policy as an “accident that results
in bodily injury or property damage.” [Id.] There is also an expected or intended bodily
injury exclusion, providing that the insurance does not apply to “‘bodily injury’ or
‘property damage’ expected or intended from the standpoint of the insured.” [Id.] The
Policy also contains a “separation of insureds” provision stating the Policy applies
“[s]eparately to each insured against whom claim is made or ‘suit’ is brought.” [Id.]
Property-Owners has four arguments in support of its position that there is no
duty to defend or indemnify Stein Tavern under the insurance policy: (1) the liquor
liability exclusion bars coverage for all of the claims brought by Woods; (2) the claims
for negligent hiring and training do not constitute an “occurrence” under the Policy; (3)
the injury to Woods was intentional from the standpoint of Stein Tavern and Russell
and thus excluded under the Policy; and (4) the insured never notified PropertyOwners of the loss or incident. [DE 27 at 2.] I’ll take up each of these in turn below.
Discussion
The parties agree that the substantive law applicable to this case is the law of the
State of Indiana. Property-Owners has been providing a defense in the underlying suit
under a reservation of rights. And under Indiana law, an insurer can “clarify its
obligation by means of a declaratory judgment action,” like this one. Liberty Mut. Ins.
Co. v. Metzler, 586 N.E.2d 897, 902 (Ind. Ct. App. 1992).
4
Let’s start with some basics. The interpretation of an insurance policy, like other
contracts, is typically a question of law that I can resolve on summary judgment.
Bosecker v. Westfield Ins. Co., 724 N.E.2d 241, 243 (Ind. 2000). When interpreting an
insurance policy, my goal is to ascertain and enforce the parties’ intent as reflected in
the insurance contract. Buckeye State Mut. Ins. Co. v. Carfield, 914 N.E.2d 315, 318 (Ind.
Ct. App. 2009). If the policy language is clear and unambiguous, it should be given its
plain and ordinary meaning. Am. States Ins. Co. v. Adair Indus., Inc., 576 N.E.2d 1272,
1273 (Ind. Ct. App. 1991). However, ambiguous terms in the contract are to be
construed against the insurer, especially where the policy excludes coverage. Cincinnati
Ins. Co. v. Flanders Elec. Motor Serv., Inc., 40 F.3d 146, 151 (7th Cir. 1994).
Insurance policies are adhesion contracts. They are drafted by insurance
companies and are basically a “take it or leave it” deal. It is for this reason that any
exclusions or limitations in an insurance policy must be plainly expressed, and any
doubt or ambiguity in the policy must be read in favor of the insured. Am. Family Life
Assurance Co. v. Russell, 700 N.E.2d 1174, 1177 (Ind. Ct. App. 1998). “The exclusionary
clause must clearly and unmistakably bring within its scope the particular act or
omission that will bring the exclusion into play, and any doubts to the coverage under
the policy shall be construed against the insurer to further the policy’s basic purpose of
indemnity.” Id. An insurer bears the burden of proving that an exclusion applies. PSI
Energy, Inc. v. Home Ins. Co., 801 N.E.2d 705, 725 (Ind. Ct. App. 2004).
An insurance company’s duty to defend is broader than its duty to indemnify.
5
Seymour Mfg. Co., Inc. v. Commercial Union Ins. Co., 665 N.E.2d 891, 892 (Ind. 1996). An
insurer is obligated to defend its insured against suits alleging facts that might fall
within the coverage of the policy. Fed. Ins. Co. v. Stroh Brewing Co., 127 F.3d 563, 566
(7th Cir. 1997). “[T]here is essentially only one standard - that the allegations of the
complaint, including the facts alleged, give rise to a duty to defend whenever, if proved
true, coverage would attach.” Id. Only if there is no possible factual or legal basis on
which the insurer might be obligated to indemnify will the insurer be excused from
defending its insured. Lee R. Russ, 14 COUCH ON INSURANCE § 200:12 (3d ed. 2007); see
also Ticor Title Ins. Co. of Cal. v. FFCA/IIP 1988 Prop. Co., 898 F. Supp. 633, 638-39 (N.D.
Ind. 1995) (if there is even a possibility of coverage, the insurer is obligated to defend).
The first place to look when trying to determine the insurer’s duty to defend is
the allegations contained within the complaint and from those facts known or
ascertainable by the insurer after reasonable investigation. Knight v. Ind. Ins. Co., 871
N.E.2d 357, 362 (Ind. Ct. App. 2007); Liberty Mut. Ins. Co. v. OSI Indus., Inc., 831 N.E.2d
192, 198 (Ind. Ct. App. 2005). It used to be under Indiana law that the duty to defend
was “determined solely by the nature of the complaint.” Transamerica Ins. Serv. v. Kopko,
570 N.E.2d 1283, 1285 (Ind. 1991). However, several Indiana appellate decisions have
more recently declined to follow Kopko and found that “in evaluating the factual basis of
a claim and the insurer’s concomitant duty to defend, this court may properly consider
the evidentiary materials offered by the parties to show coverage.” Wayne Twp. Bd. of
Sch. Comm’rs v. Ind. Ins. Co., 650 N.E.2d 1205, 1208 (Ind. Ct. App. 1995) (citing Trisler v.
6
Ind. Ins. Co., 575 N.E.2d 1021, 1023 (Ind. Ct. App. 1991)). This point was proven when
the Indiana Supreme Court considered extrinsic, designated evidence when analyzing
an insurer’s duty to defend. See Auto-Owners Ins. Co. v. Harvey, 842 N.E.2d 1279, 1291
(Ind. 2006). As such, I have considered the relevant designated evidence when
determining whether Property-Owners owes a duty to defend. See Continental Ins. Co.
v. George J. Beemsterboer, Inc., 148 F.Supp.3d 770, 781-82 (N.D. Ind. 2015) (analyzing
relevant case law and finding it appropriate to consider extrinsic evidence in assessing
an insurer’s duty to defend).
Finally, an insurer must defend an action even if only a small portion of the
conduct alleged in the complaint falls within the scope of the insurance policy. See
Curtis-Universal, Inc. v. Sheboygan Emergency Med. Servs., Inc., 43 F.3d 1119, 1122 (7th Cir.
1994). So “[i]f the policy is otherwise applicable, the insurance company is required to
defend even though it may not be responsible for all of the damages assessed.” Ind.
Farmers Mut. Ins. Co. v. N. Vernon Drop Forge, Inc., 917 N.E.2d 1258, 1267 (Ind. Ct. App.
2010) (citation omitted). In other words, in for a penny, in for a pound.
Here, Stein Tavern does not dispute that it is not entitled to coverage for the
dram-shop claim in Count IV of Woods’ state court complaint. That claim is obviously
excluded by the liquor liability exclusion in the Policy. But Property-Owners must still
defend the case if I find that any of the other claims set out in the state court complaint
fall within the scope of the Policy.
7
I.
Whether the Liquor Liability Exclusion Excludes Coverage
Property-Owners argues that the liquor liability exclusion in the Policy excludes
coverage for all of the claims. The Policy contains this exclusion: “bodily injury . . . for
which any insured may be held liable for reason of: (1) Causing or contributing to the
intoxication of any person.” [DE 10-5.] It claims the case Property-Owners Ins. Co. v.
Ted’s Tavern, Inc., 853 N.E.2d 973 (Ind. Ct. App. 2006), is controlling and dispositive.
In Ted’s Tavern, two men worked at Big Jim’s and they served four Long Island
Ice Teas to Wickliff, a patron. Id. at 976. Shortly after leaving Big Jim’s, Wickliff drove
his vehicle head-on into a car, killing the other driver. Id. At the time of the collision,
Wickliff was intoxicated and operating his car with a blood alcohol level of .21. Id. The
complaint raised four counts: (1) negligence, (2) negligent hiring, training and
supervising employees, (3) violations of the dram-shop act, and (4) nuisance. Id. Ted’s
Tavern contained an identical liquor liability exclusion as the one at issue in this case.
Id. at 978. The trial court issued partial summary judgment in the insured’s favor,
finding Property-Owners owed a duty to defend on the claims of negligent hiring,
training, and supervising employees, as well as nuisance. The appellate court reversed
and entered judgment for Property-Owners on those challenged counts. In so doing, it
noted that the negligent hiring, training, and supervision count and the nuisance count
incorporated by reference the common allegations. Id. at 982. It also reasoned:
Regardless of the theories of liability a resourceful attorney may
fashion from the circumstances of this case, the allegations within
Counts II and IV are general ‘rephrasings’ of the core negligence
claim for causing/contributing to Wickliff’s drunk driving. The
8
events outlined in Counts II and IV simply are not wholly
independent of ‘carelessly and negligently’ serving and continuing
to serve alcoholic beverages to Wickliff when the defendants knew
or should have known he was intoxicated and soon thereafter
could be driving drunk. To the contrary, the nuisance and the
negligent hiring, training, and supervision are so inextricably
intertwined with the underlying negligence that there is no
independent act that would avoid exclusion . . . .
Id. at 983 (citations omitted).
This case is entirely different from Ted’s Tavern. First, the allegations of failure to
intervene, and negligent hiring, training, and supervision of Russell in the underlying
complaint (Counts I-III) come numerically before the dram-shop count (Count IV), and
thus do not incorporate the same facts. Second, these claims do not reference the sale or
service of alcohol at all. Rather, Count I alleges Stein Tavern was negligent for its
failure to intervene or stop the assault, or call the police when Woods was assaulted.
Count II alleges Stein Tavern breached its duty to Woods by hiring Russell when it
should have known he was incompetent and unfit for employment as a
bartender/bouncer. And Count III alleges that Stein Tavern was negligent in failing to
train Russell to prevent the assault. These claims are not “inextricably intertwined”
with the negligent provision of alcohol. In fact, they have nothing to do with the sale of
alcohol at all.
As the Seventh Circuit has recognized, “dram shop cases in which courts have
not applied the [liquor] exclusion involve a separate negligent action performed by an
agent of the insured after the furnishing of alcohol.” Netherlands Ins. Co. v. Phusion
Projects, Inc., 737 F.3d 1174, 1179 (7th Cir. 2013) (emphasis in original). That is exactly
9
what is alleged to have happened here - Russell over served Woods alcohol. Then,
Russell allegedly failed to protect Woods from a bar fight, failed to intervene, and failed
to call the police. These are all claims quite separate from serving alcohol. Moreover,
the claims that Stein Tavern negligently hired and then failed to train its employee to
take reasonable steps to prevent assaults are also unrelated to the service of alcohol.
What’s more, bar fights are a common occurrence, and sometimes they occur for
reasons utterly unrelated to the sale of alcohol. Suppose Woods was hitting on another
patron’s girlfriend which caused the fight (and his subsequent injuries). Or suppose he
made a wise crack about another patron’s bad breath. The ensuing bar fight and his
resulting injuries would have nothing to do with the sale of alcohol. In such a situation,
the bar owner could be liable for a failure to train its employees or failure to protect or
intervene, and it would have nothing whatsoever to do with the sale of alcohol. In that
situation, Woods would not — in the language of the policy — be sustaining “injuries
by reason of causing or contributing to the intoxication” of anyone. And even if Woods
was drunk, the cause of the injury would not be the alcohol, but the bar’s failure to
protect him or failure to train its staff.
It’s for this reason that I agree with Dennis v. Finish Line, Inc., 636 So.2d 944, 947
(1st Cir. 1994), which analyzed the duty to defend and a similar liquor liability
exclusion, and found that “Plaintiffs’ petitions, however, include allegations of fault for
failure of [the bar] to properly train its employees, failure to supervise its employees,
and failure to take necessary precautions, all of which go beyond injury caused by
10
serving alcohol.” Similarly, in Penn-America Ins. Co. v. Peccadillos, Inc., 27 A.3d 259 (Pa.
2011), the complaint alleged negligence in ejecting a drunk patron from the bar who
was later involved in a fatal car crash. The court affirmed summary judgment finding
coverage despite a liquor liability exclusion, reasoning that the claim the bar negligently
ejected a drunk patron after a physical altercation rather than summoning the police,
when they should have known he would try to drive, “is not based on whether [the bar]
caused or contributed to Latta’s intoxication. Instead, it premises liability on [the bar’s]
ejection from its premises of two sorely intoxicated patrons . . . [t]hese allegations
neither assert nor rely on [the bar’s] violation of the Liquor Code or any statute, nor do
they arise directly from [the bar’s] provision of liquor or contribution to the men’s
intoxicated condition.” Id. at 268.
Like these cases, I also find the claims of failure to intervene and negligent hiring,
supervision, and training, are claims that do not rely upon or directly arise from Stein
Tavern’s service of alcohol. In sum, I do not think the liquor liability exclusion
unambiguously excludes coverage in this case.
II.
Whether There Was an Occurrence to Trigger the Policy
Property-Owners argues there is no trigger of coverage for the negligent hiring
and training claims because they do not constitute an occurrence. The parties agree that
“occurrence” is defined in the policy as “an accident.” In the context of an insurance
contract, an accident means an unexpected happening without intention or design.
Harvey, 842 N.E.2d at 1283; Terre Haute First Nat’l Bank v. Pacific Employers Ins. Co., 634
11
N.E.2d 1336, 1338 (Ind. Ct. App. 1993).
While Property-Owners tries to paint the hiring and training as an intentional
process, I just don’t think that characterization holds water. Obviously, from the
standpoint of Stein Tavern, it did not intentionally set about to hire someone
unqualified, or to provide substandard training to an employee. Moreover, the
altercation with Woods was an unexpected happening, without intention or design
from the standpoint of Stein Tavern.
This case is similar to Wayne Township Board of School Commissioners v. Indiana
Insurance Co., 650 N.E.2d 1205, 1208 (Ind. Ct. App. 1995), in which a principal hired by
the school sexually molested a student while in his office. The school argued the
theories of negligence against it constituted an occurrence under the policy. The court
agreed, finding the insurance company “has not designated any evidence
demonstrating that the school’s alleged conduct was not an accident: there is no
evidence that the school intended or expected [the principal’s] misconduct or that the
molestation was the result of the school’s intent or design.” Id. at 1209. Aside from the
allegation that the school acted negligently, “[t]here is no evidence demonstrating that
any unreasonable conduct on the part of the school was not accidental. And, we cannot
impute [the principal’s intent to injure the student] to the school.” Id. at 1209.
This case, like Wayne Township, also involves a “separation of insureds”
provision in the Policy that claims against each insured will be treated separately. [DE
10-5.] Property-Owners has not submitted any evidence showing that any negligent or
12
unreasonable conduct on the part of Stein Tavern was not accidental. At a minimum,
the Policy is ambiguous when determining if an event is an accident, whether it should
be considered from the point of each individual insured’s standpoint.
While Property-Owners tries to rely on Erie Insurance Co. v. American Painting Co.,
678 N.E.2d 844 (Ind. Ct. App. 1997), as Woods points out in his response, the Supreme
Court of Indiana in Harvey, 842 N.E.2d 1279, held that cases like Red Ball Leasing, Inc. v.
Hartford Accident & Indemnity Co., 915 F.2d 306, 312 (7th Cir. 1990), and other cases upon
which American Painting relies upon are:
[U]nclear, potentially confusing, and likely to result in subjective
and unpredictable judicial applications. Determining the
availability of coverage based on whether negligence is ‘attenuated
from the volitional act’ is an unsatisfactory standard. Application
of such a tool for construction of an ‘occurrence’ or ‘accident’ runs
counter to our well-established principle that where insurance
policies are ambiguous, they are to be ‘construed strictly against the
insurer’ and the policy viewed from the insured’s standpoint. Any
doubts as to the coverage under the policy will be construed
against the insurer in order to further the policy’s basic purpose of
indemnity.
Harvey, 842 N.E.2d at 1285-86 (citations and quotation omitted).
Because the Policy is ambiguous as it relates to “occurrence” and “accident,” and
construing it most favorably as to the insured, as I must do, I find the claims of
negligent hiring and training are covered by the Policy and Property-Owners owes a
defense in the underlying suit.1 At the very least, a genuine issue of material fact exists
1
Because I have made this finding, there is no need to address Property-Owners’ argument that
there is no trigger of coverage for failure to provide adequate security. [DE 27 at 10-11.]
13
with respect to whether the negligence claims against Stein Tavern for bodily injuries
sustained by Woods arose by “accident.”
III.
Whether The Expected Bodily Injury Exclusion Bars Coverage
Property-Owners also contends the “expected or intended injury” exclusion
precludes coverage, arguing Russell’s guilty plea to battery resulting in serious bodily
injury necessarily means that Russell intended to injure Woods, so there can be no
“accident” covered by the Policy. It contends “it is quite clear that a person that picks
up a pool cue and repeatedly strikes another with it, punches him in the face with a
closed fist and then body-slams him to the ground intends or expects the victim will
sustain harm or bodily injury as a result.” [DE 27 at 18.] However, as noted earlier,
claims of intentional injury committed by an employee can still constitute an “accident”
with respect to a negligence claim against the employer. See Wayne Twp., 650 N.E.2d at
1208; American Family Mut. Ins. Co. v. Bower, 752 F.Supp.2d 957, 964-65 (N.D. Ind. 2010).
There has been no evidence submitted that has shown that Stein Tavern expected or
intended for an injury to occur to Woods. From the standpoint of Stein Tavern, nothing
tends to show it intentionally injured Woods. See Bower, 752 F.Supp.2d at 971 (finding
intentional act exclusion did not apply, as “a reasonable insured would believe from the
severability provision that their insurance coverage and any exclusion of coverage
would be judged on the basis of their particular conduct and acts within their control.”).
Consequently, the bodily injury exclusion does not bar coverage under the Policy.
IV.
Whether Coverage is Precluded by the Alleged Failure to Provide Timely
Notice
14
Finally, Property-Owners argues that because Stein Tavern failed to comply with
the notice provisions in the Policy, coverage is barred. The Policy provides that the
insured must notify Property-Owners “as soon as practicable” of an occurrence of an
offense which might result in a claim. [DE 10-5.] It is undisputed that Property-Owners
was notified of Woods’ underlying action on August 27, 2014, three weeks after the
filing of the complaint, one day after service of summons upon Stein Tavern, and
approximately eight months after the actual bar fight.
The parties cite conflicting law about whether there is a presumption of prejudice
from late notice (and that presumption may be overcome), or if actual prejudice must be
shown. Regardless of which standard applies, I don’t believe Property-Owners has
been prejudiced as a result of any delayed notice. Property-Owners found out about
the underlying lawsuit shortly after it was filed, and only eight months had passed
since the incident. Although Property-Owners asserts it was not able to make an
adequate and timely investigation into the incident, including questioning the parties
and witnesses while their memories were sharp, importantly, there is a video depicting
the events that occurred that evening at Stein Tavern. And there is no indication that
Stein Tavern knew at the time of the bar fight, or any time thereafter, that a civil claim
would be filed. As such, there was no prejudice to Property-Owners due to any delay
in providing notice.
V.
The Issue of Indemnification is Premature
Because Property-Owners has a duty to defend the claims made by Woods for
15
the negligent hiring, retention and training of Russell, Property-Owners owes a duty to
defend Stein Tavern for the entire lawsuit. Aearo Corp. v. American Int’l Specialty Lines
Ins. Co., 676 F.Supp.2d 738, 745 (S.D. Ind. 2009); see also Curtis-Universal, Inc. v. Sheboygan
Emergency Med. Servs., Inc., 43 F.3d 1119, 1122 (7th Cir. 1994) (reiterating “the principle
that if any of the conduct alleged in the complaint falls within the scope of the insurance
policy, the insurer must defend”). However, a determination of indemnification is
premature at this point, given that the state court has not yet determined whether Stein
Tavern is liable for the underlying claims. Lear Corp. v. Johnson Elec. Holdings Ltd., 353
F.3d 580, 583 (7th Cir. 2003) (“decisions about indemnity should be postponed until the
underlying liability has been established”); Grinnell Mut. Reinsurance Co. v. Reinke, 43
F.3d 1152, 1154 (7th Cir. 1995) (finding the duty to indemnify is unripe until the insured
has been held liable).
I realize I could potentially take two courses of action with regard to the duty to
indemnify: stay the indemnity issue pending resolution of the state court action, or
dismiss that part of the case. The Seventh Circuit has criticized a district court for
staying an unripe duty to indemnify claim: “[t]he district court was aware that the dutyto-indemnify claim was not ripe, but rather than dismiss that aspect of the case, it
included it in the stay that was issued. The proper disposition, however, would have
been to dismiss.” Medical Assurance Co., Inc. v. Hellman, 610 F.3d 371, 375 (7th Cir. 2010)
(citing Nationwide Ins. v. Zavalis, 52 F.3d 689, 693 (7th Cir. 1995)). In Zavalis, the Seventh
Circuit found because the party had not yet been deemed liable (or, alternatively,
16
entered into a settlement) in the underlying suit, “the district court was correct to
dismiss without prejudice the declaratory judgment action insofar as it sought a
determination of the company’s duty to indemnify.” Zavalis, 52 F.3d at 693.
Taking my lead from the Seventh Circuit, I think the proper route is to dismiss
without prejudice this action insofar as it seeks a determination of Property-Owners’
duty to indemnify.
Conclusion
For the foregoing reasons, Property-Owners’ Motion for Summary Judgment [DE
26] is DENIED. Additionally, this action is dismissed without prejudice as to the
determination of Property-Owners’ duty to indemnify.
SO ORDERED.
ENTERED: November 9, 2016
s/ Philip P. Simon
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?