INDIANAPOLIS MOTOR SPEEDWAY, LLC v. GLOBAL LIVE, INC. et al

Filing 30

ORDER - Plaintiff Indianapolis Motor Speedway, LLC ("IMS") and Defendant Global Live, Inc. ("Global Live") entered into a Special Event Agreement (the "Event Agreement") in April 2015 which allowed Global Live to host a concert featuring the Rolling Stones on July 4, 2015 at IMS. Pamela and William Shepard attended the concert, and both were injured when they tripped over a curb and fell while walking in a tunnel at IMS at the end of the evening. The Shepards have sued IMS in Indiana State Court (the "Underlying Lawsuit"), and IMS claims in this lawsuit that Defendant New York Marine and General Insurance Company, also known as ProSight Insurance Group, Inc. ("ProSight"), must defend and indemnify it in the Underlying Lawsuit under a commercial general liability policy ProSight issued to Global Live (the "Policy"). Presently pending before this Court is a Motion to Dismiss filed by Global Live and ProSight. [Filing No. #7 .] For the foregoing reasons, the Court DENIES Defendants' Motion to Dismiss, [Filing No. #7 ]. The Court notes that its decision should not be construed as a finding that the Policy or the Indemnification Provision provide coverage for IMS, but only that IMS has stated claims that this is the case at the motion to dismiss stage. Defendants' arguments are more akin to those that would be made at the summary judgment stage of the litigation, after discovery has taken place and in the context of a developed factual record. The Court recognizes Defendants' desire to bring this litigation to a swift conclusion, but it is early and "time is on our side." Moreover, "you can't always get what you want" - but the parties are encouraged to work toward resolution of this matter short of trial, and are reminded that "if you try sometimes well you just might find you get what you need." (See Order). Signed by Judge Jane Magnus-Stinson on 8/14/2017. (APD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
INDIANAPOLIS MOTOR SPEEDWAY, LLC,
Plaintiff,
vs.
GLOBAL LIVE, INC. and NEW YORK MARINE
AND GENERAL INSURANCE COMPANY a/k/a
PROSIGHT SPECIALTY INSURANCE GROUP INC.,
Defendants.

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No. 1:17-cv-01743-JMS-MPB

ORDER
Plaintiff Indianapolis Motor Speedway, LLC (“IMS”) and Defendant Global Live, Inc.
(“Global Live”) entered into a Special Event Agreement (the “Event Agreement”) in April 2015
which allowed Global Live to host a concert featuring the Rolling Stones on July 4, 2015 at IMS.
Pamela and William Shepard attended the concert, and both were injured when they tripped over
a curb and fell while walking in a tunnel at IMS at the end of the evening. The Shepards have sued
IMS in Indiana State Court (the “Underlying Lawsuit”), and IMS claims in this lawsuit that
Defendant New York Marine and General Insurance Company, also known as ProSight Insurance
Group, Inc. (“ProSight”), must defend and indemnify it in the Underlying Lawsuit under a
commercial general liability policy ProSight issued to Global Live (the “Policy”). Presently
pending before this Court is a Motion to Dismiss filed by Global Live and ProSight. [Filing No.
7.]
I.
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a claim that
does not state a right to relief. The Federal Rules of Civil Procedure require that a complaint

provide the defendant with “fair notice of what the…claim is and the grounds upon which it rests.”
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 555
(2007)). In reviewing the sufficiency of a complaint, the Court must accept all well-pled facts as
true and draw all permissible inferences in favor of the plaintiff. See Active Disposal Inc. v. City
of Darien, 635 F.3d 883, 886 (7th Cir. 2011). A Rule 12(b)(6) motion to dismiss asks whether the
complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 570). The Court will not accept legal conclusions or conclusory allegations as sufficient to state
a claim for relief. See McCauley v. City of Chicago, 671 F.3d 611, 617 (7th Cir. 2011). Factual
allegations must plausibly state an entitlement to relief “to a degree that rises above the speculative
level.” Munson v. Gaetz, 673 F.3d 630, 633 (7th Cir. 2012). This plausibility determination is “a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Id.
II.
BACKGROUND
The factual allegations in the Complaint filed by IMS, 1 which the Court must accept as
true at this time, are as follows:

1

This Background section summarizes relevant Policy provisions, even though IMS did not attach
the Policy to the Complaint. It is well-settled that a court may consider documents not attached to
the complaint when they are referenced in the complaint and are integral to plaintiff’s claims. See,
e.g., McCready v. eBay, Inc., 453 F.3d 882, 891 (7th Cir. 2006). Additionally, IMS has stated that
the only reason it did not attach the Policy was because it never received a copy, and agrees that
the Court may consider the Policy when analyzing Defendants’ Motion to Dismiss. [Filing No.
22 at 3, n.1.]
2

A. The Event Agreement
In April 2015, IMS and Global Live entered into the Event Agreement, which allowed
Global Live to host a concert featuring The Rolling Stones at IMS on July 4, 2015 (the “Event”).
[Filing No. 1-1 at 11.] The Event Agreement set forth the obligations of IMS and Global Live in
connection with the Event, including the following:
•

Global Live was to provide “Event insurance” as follows:

[Filing No. 1-1 at 25-26.]
•

Global Live was to indemnify IMS under certain circumstances as provided in
the Indemnification Provision, which stated in relevant part:

3

[Filing No. 1-1 at 26.]
B. The Policy and the Certificate of Insurance
ProSight issued the Policy to Global Entertainment US Holdings, Inc. for an effective
period of July 1, 2015 to July 6, 2015. [Filing No. 8-1 at 14.] Global Live’s insurance broker,
Arthur J. Gallagher & Co., issued a Certificate of Liability Insurance (the “Certificate”) to Global
Live reflecting issuance of the Policy, and listed the Certificate Holder as IMS. [Filing No. 1-1 at
32.] The Certificate states:
Certificate Holder is included as an Additional Insured but only as respects to
claims arising out of the negligence of the Named Insured, as is required by written
contract as per blanket Additional Insured endorsements CG 20 11 (01-96), CG (20
23 (10-93) and/or CG 20 34 (07-04) as respects the operations of the Named
Insured. Regarding Concert performance by the Rolling Stones – Indiana Motor
Speedway….
[Filing No. 1-1 at 32.]
The relevant endorsements referenced in the Certificate, which address who is considered
an Additional Insured, provide as follows:
•

Endorsement CG 20 11 01-96 (the “Managers or Lessors Endorsement”):
“WHO IS AN INSURED (Section II) is amended to include as an insured the
4

person or organization shown in the Schedule but only with respect to liability
arising out of the ownership, maintenance or use of that part of the premises
leased to you and shown in the Schedule and subject to the following additional
exclusions: This insurance does not apply to: 1. Any ‘occurrence which takes
place after you cease to be a tenant in that premises. 2. Structural alterations,
new construction or demolition operations performed by or on behalf of the
person or organization shown in the Schedule.” [Filing No. 8-1 at 34.]
•

Endorsement CG 20 34 07 04 (the “Leased Equipment Endorsement”): “Who
Is An Insured (Section II) is amended to include as an additional insured any
person or organization from whom you lease equipment when you and such
person or organization have agreed in writing in a contract or agreement that
such person or organization be added as an additional insured on your policy.
Such person or organization is an insured only with respect to liability for
‘bodily injury’, ‘property damage’ or ‘personal and advertising injury’ caused,
in whole or in part, by your maintenance, operation or use of equipment leased
to you by such person or organization.” [Filing No. 8-1 at 36.] 2

C. The Underlying Lawsuit
On July 4, 2015, Pamela and William Shepard attended the Rolling Stones concert at IMS.
[Filing No. 1-1 at 13.] While they were walking through a tunnel at IMS to exit the Event, the
Shepards tripped over a curb. [Filing No. 1-1 at 14.] William Shepard sustained minor injuries to
his leg, and Pamela Shepard injured her left elbow and right shin. [Filing No. 1-1 at 14.] Ms.
Shepard’s injuries required surgical intervention and other treatment. [Filing No. 1-1 at 14.]
On December 28, 2016, the Shepards filed a lawsuit against IMS in Marion County,
Indiana Superior Court.

[Filing No. 1-1 at 14 (Pamela Shepard and William Shepard v.

Indianapolis Motor Speedway, LLC, Cause No. 49D10-1701-CT-000393).] In the Underlying
Lawsuit, the Shepards allege that IMS breached its duty of care to the Shepards by failing to
provide adequate illumination for business invitees exiting the Event. [Filing No. 1-1 at 14.]

2

IMS concedes that it is not considered an additional insured under Endorsement CG 20 23 10 93,
which applies to “any executor, administrator, trustee or beneficiary” of Global Live’s “estate or
living trust.” [See Filing No. 22 at 12 (IMS stating that it “concedes it is not an executor,
administrator, trustee or beneficiary under the terms of the Endorsement numbered CG 20 23 10
93”).]
5

D. The Present Lawsuit
IMS filed suit against Global Live and ProSight in Marion Superior Court on April 21,
2017, [Filing No. 1-1 at 10-21], and Global Live and ProSight removed the case to this Court on
May 25, 2017 on the basis of diversity jurisdiction, [Filing No. 1]. IMS alleges claims for breach
of contract against ProSight, breach of the duty of good faith and fair dealing against ProSight,
and breach of contract against Global Live. [Filing No. 1-1 at 16-20.] IMS also seeks a declaratory
judgment that ProSight is obligated to provide insurance coverage for any and all claims raised in
the Underlying Lawsuit, including for both IMS’s defense of the Underlying Lawsuit and
indemnification of IMS for liability in connection with the Underlying Lawsuit. [Filing No. 1-1
at 18-19.]
III.
DISCUSSION
A. Policy Coverage
Defendants first argue that IMS’s claims against ProSight fail because IMS is not an
additional insured under the Policy. [Filing No. 8 at 13-17.] They assert that the Certificate does
not create additional coverage for IMS by listing IMS as a Certificate Holder because the
Certificate contains specific language confirming that it does not create or confirm coverage and
that, even if the Certificate did provide coverage for IMS, that coverage would be limited to
instances when claims are made against IMS arising out of Global Live’s negligence. [Filing No.
8 at 13-14.] Defendants contend that the Shepards do not allege that Global Live was negligent in
the Underlying Lawsuit, or caused the negligence of IMS. [Filing No. 8 at 15.] Defendants assert
that because all of IMS’s claims are based on IMS’s status as an additional insured, its claims fail.
[Filing No. 8 at 15.] Further, Defendants argue that: (1) the Managers and Lessors Endorsement
only applies to liability arising out of the ownership, maintenance, or use of premises leased to
6

Global Live, there are no allegations of those circumstances in the Underlying Lawsuit, and the
Event Agreement states that Global Live was not leasing from IMS; and (2) the Leased Equipment
Endorsement provides that additional insureds are persons or organizations from whom Global
Live leases equipment, and there is no allegation that Global Live leased equipment from IMS.
[Filing No. 8 at 16-17.]
In response, IMS argues that the Certificate was a form that IMS mandated Global Live
provide to show that IMS was a certificate holder and an additional insured under the Policy, the
Policy specifically covered the Event and Global Live’s obligations to IMS, and the Policy
provided coverage primary to any other coverage available to IMS. [Filing No. 22 at 9.] It
contends that the Certificate expressly includes language evidencing coverage for IMS under the
Policy, and that the Event Agreement and the Certificate both were entered into to provide
coverage for IMS. [Filing No. 22 at 10-11.] IMS also contends that the Policy specifically
provides coverage for the Event, and for the “Blanket Additional Insured,” which it claims is IMS.
[Filing No. 22 at 11.] IMS argues further that the Managers or Lessors Endorsement does not only
apply to lessors, but also to managers of the premises, and that “managers” is not defined by the
Policy and IMS has sufficiently alleged that it falls within the endorsement. [Filing No. 22 at 1415.] It also contends that it is an additional insured under the Leased Equipment Endorsement
because, when read in conjunction with the Event Agreement, it is clear that Global Live was
required to obtain insurance to “‘cover[ ] the event, including without limitation products and
completed operations liability.’” [Filing No. 22 at 13.] IMS further notes that Global Live leased
equipment from IMS under the Event Agreement, including lighting, which brings IMS within the
terms of the Leased Equipment Endorsement. [Filing No. 22 at 13.]

7

On reply, Defendants reiterate their argument that the Certificate itself does not provide
coverage for IMS. [Filing No. 23 at 2-5.] They also argue that the allegations in the Underlying
Lawsuit do not bring IMS within the scope of the Managers or Lessors Endorsement or the Leased
Equipment Endorsement such that IMS is an additional insured. [Filing No. 23 at 6-8.]
In evaluating the parties’ arguments, it is important to keep in mind that Defendants have
moved to dismiss this case based on the allegations of the Complaint. While the Court agrees with
the parties that it may consider the Policy (although it is not attached to the Complaint), the Court’s
task is to determine whether the Complaint states a claim upon which relief can be granted. IMS
alleges in the Complaint that Global Live was obligated under the Event Agreement to obtain event
insurance for all claims arising from the Event, that the Policy was to provide coverage for Global
Live’s obligations to IMS, that the Policy was to explicitly include IMS “‘as an additional insured
under the Policy,’” and that the coverage provided to IMS was to be “‘primary to any other
coverage(s) available to IMS.’” [Filing No. 1-1 at 11-12.] These allegations indicate an intent in
the Event Agreement for Global Live to purchase coverage that specifically covered IMS as an
additional insured, and are enough to state claims that are dependent upon coverage under the
Policy – here, breach of contract and breach of the duty of good faith and fair dealing – and to
support a request for a declaratory judgment. Moreover, the parties have presented differing views
regarding the meaning of the Managers or Lessors Endorsement and the Leased Equipment
Endorsement. Resolution of the issue of whether those endorsements provided coverage for IMS
is not appropriate at the motion to dismiss stage, where IMS has sufficiently alleged that the parties
intended it to be covered by the Policy, and that it was, in fact, covered. The Court DENIES
Defendants’ Motion to Dismiss as it relates to coverage under the Policy.

8

B.

The Indemnification Provision

Defendants also argue that the Indemnification Provision in the Event Agreement does not
obligate Global Live to defend and indemnify IMS in the Underlying Lawsuit, so IMS’s claim
against Global Live for breach of the Indemnification Provision must be dismissed. [Filing No. 8
at 18-19.] They argue that the Indemnification Provision specifically excludes indemnification for
claims that are “from the sole negligence or willful misconduct of the IMS Group or any member
thereof,” and note that the Underlying Lawsuit only involves negligence claims against IMS and
not Global Live. [Filing No. 8 at 18-19 (emphasis omitted).] Defendants also contend that “under
the [Event Agreement] IMS was solely responsible for parking and traffic services and lighting at
the Concert.” [Filing No. 8 at 19.]
In response, IMS argues that the Shepards amended their complaint in the Underlying
Lawsuit to add Global Live as a defendant, so Defendants’ argument that the Indemnification
Provision excludes indemnification for claims that are from the sole negligence of IMS is now
moot. [Filing No. 22 at 16.] Further, IMS asserts that Global Live, not IMS, was in control of the
premises on the day of the Event, which included control over illumination of the premises. [Filing
No. 22 at 16-17.]
On reply, Defendants argue that even though Global Live was added as a defendant in the
Underlying Lawsuit, there are still no specific allegations that Global Live was negligent. [Filing
No. 23 at 8-9.] Defendants also contend that under the Event Agreement, IMS was solely
responsible for parking and traffic services and lighting at the Event, and “IMS’s attempt to shift
responsibility simply because Global Live agreed to pay for those services provided by IMS fails.”
[Filing No. 23 at 10.]

9

Again, the Court looks to the allegations in the Complaint. IMS alleges that the Event
Agreement, in addition to providing that Global Live must maintain insurance that would cover
IMS, also provided that “to the extent ProSight fails to provide the required defense and indemnity
to IMS, Global Live must satisfy its duty to defend and indemnify IMS from any such claims.”
[Filing No. 1-1 at 13.] The Court finds unavailing Defendants’ arguments that IMS has not stated
a claim for breach of the Indemnification Provision against Global Live because the Underlying
Lawsuit does not contain negligence claims against Global Live, or because IMS was solely
responsible for parking, traffic services, and lighting at the Event. First, Global Live is now a
defendant in the Underling Lawsuit, and the Shepards allege that “Defendants” did not provide
adequate lighting, “Defendants” were negligent, “Defendants” had notice of a hazardous
condition, and the Shepards were injured as a proximate result of “Defendants’” negligence.
[Filing No. 21-1 at 4-5.] It is inconsequential that the Shepards do not specify in each allegation
“IMS and Global Live.”
Second, Defendants’ argument regarding who was responsible for lighting is overreaching.
At the motion to dismiss stage, it is not appropriate for the Court to examine the language of the
Event Agreement, determine who was responsible for lighting, and then determine whether the
Indemnification Provision applies under the circumstances here. As with their arguments related
to whether IMS was an additional insured under the Policy, the Court focuses only on the
allegations of the Complaint – and those allegations indicate an intent on the part of Global Live
and IMS for Global Live to indemnify IMS if insurance did not cover IMS under certain
circumstances. In essence, the parties agreed that in exchange for use of the venue, Global Live
would come to IMS’s financial - though not “emotional - rescue” in the event of a claim. 3

3

THE ROLLING STONES, Emotional Rescue, on Emotional Rescue (Compass Point Studios 1980).
10

Defendants have not presented a situation that is so far outside the scope of the Indemnity
Provision, based on the allegations in the Complaint, that IMS has failed to state a claim upon
which relief can be granted. Rather, IMS has adequately alleged that the circumstances present
here fall within the Indemnity Provision. Defendants’ Motion to Dismiss is DENIED as it relates
to indemnification under the Event Agreement’s Indemnification Provision.
IV.
CONCLUSION
For the foregoing reasons, the Court DENIES Defendants’ Motion to Dismiss, [Filing No.
7]. The Court notes that its decision should not be construed as a finding that the Policy or the
Indemnification Provision provide coverage for IMS, but only that IMS has stated claims that this
is the case at the motion to dismiss stage. Defendants’ arguments are more akin to those that would
be made at the summary judgment stage of the litigation, after discovery has taken place and in
the context of a developed factual record. The Court recognizes Defendants’ desire to bring this
litigation to a swift conclusion, but it is early and “time is on our side.” 4 Moreover, “you can’t
always get what you want” – but the parties are encouraged to work toward resolution of this
matter short of trial, and are reminded that “if you try sometimes well you just might find you get
what you need.” 5

Date: 8/14/2017

Distribution via ECF only to all counsel of record
4

THE ROLLING STONES, Time Is On My Side, on 12x5 (Regent Sound 1964).
THE ROLLING STONES, You Can’t Always Get What You Want, on Let It Bleed (Decca Records
1969).
11

5