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American Interinsurance Exchange v. Occidental Fire and Casualty Co.

decided: December 8, 1987.

AMERICAN INTERINSURANCE EXCHANGE, PLAINTIFF-APPELLANT
v.
OCCIDENTAL FIRE AND CASUALTY COMPANY OF NORTH CAROLINA, ET AL., DEFENDANT-APPELLEES



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 85 C 6531, Harry D. Leinenweber, Judge.

Flaum, Easterbrook, and Manion, Circuit Judges.

Author: Easterbrook

EASTERBROOK, Circuit Judge.

A trucking mishap has produced a dispute about insurance coverage. Walter Ragland, doing business as Ragland Trucking, owned the offending truck; Daniel Donnelly was driving the truck at the time; Ragland had leased the truck to Illinois Cargo, Inc. American Interinsurance Exchange insured Cargo; Occidental Fire & Casualty Co. insured Ragland. American's policy covers a leased truck "while [it] is being used exclusively in [Cargo's] business as a trucker." Occidental's policy excludes accidents that occur while the truck "is being used in the business of any person or organization to whim the [truck] is rented." The insurers dispute whether the truck was being used "exclusively" in Cargo's business, because Ragland simultaneously leased it to someone other than Cargo and treated it as his to hire out by the trip; on the day in question Cargo may have had no use for the truck, and at the time of the accident Donnelly was using it on an errand at Ragland's direction. Occidental, for its part, denies coverage because Ragland was devoting the truck to business other than Ragland's, and Occidental does not much care whose.

American commenced this case under the diversity jurisdiction, 28 U.S.C. § 1332(a)(1), naming Occidental, Cargo, Ragland, and Donnelly as defendants. It sought a declaratory judgment that (a) its policy does not cover the accident, and (b) Occidental's does. Occidental filed a counter-claim against American, Ragland, Donnelly, and Bobby Devers (the victim of the accident) seeking a declaration that its own policy is inapplicable. American, Occidental, Ragland, and Cargo filed a stipulation of facts, waived a trial, and moved for judgment. (Donnelly and Devers did not join this stipulation.) American, Occidental, and the district court have characterized these documents as "motions for summary judgment", which they were not. The procedure was a bench trial on stipulated facts. The facts missing in the complaint and stipulation include the principal place of business of Occidental and other information relevant to the existence of diversity jurisdiction. The district court and the parties neglected to ensure that all of the information necessary to establish diversity was in the record. The parties have sought to rectify this failure on appeal, see 28 U.S.C. § 1653, and Occidental argues that the suit does not present a case or controversy to the extent American seeks a declaration of Occidental's the first instance because there is also a failure in appellate jurisdiction.

The district court concluded that American's policy covers the accident and Occidental's does not. The last paragraph of the opinion filed on December 23, 1986 states:

Accordingly, the court enters summary judgment in favor of the defendant/counter-plaintiff, Occidental Fire & Casualty Company of North Carolina, and against the plaintiff/counter-defendant, American Interinsurance Exchange. Occidental is ordered to submit a proposed judgment within seven days.

The opinion did not mention the relief, if any, to which Cargo, Ragland, and Donnelly were entitled. Because everyone wanted a declaratory judgment, Occidental's "proposed judgment" presumably would spell out the details. Without waiting for Occidental's proposal, however, the district court entered a document on the form prescribed for judgments in civil cases. This document states:

IT IS ORDERED AND ADJUDGED

Accordingly, the court enters summary judgment in favor of the defendant/counter-plaintiff, Occidental Fire & Casualty Company of North America [sic], and against the plaintiff/counter-defendant, American Interinsurance [sic]. Occidental to submit proposed judgment within seven days. ENTER MEMORANDUM OPINION AND ORDER.

This document, derived from the last paragraph of the district judge's opinion, is not a "final" decision. It does not deal with Cargo, Ragland, Donnelly, or Devers; it omits the declaratory judgment; it contemplates the entry of a further judgment; it refers to the opinion for further guidance. It is the sort of document that, we have said repeatedly, causes nightmares on appeal. E.g., Benjamin v. United States, 833 F.2d 669 (1987); Reytblatt v. Denton, 812 F.2d 1042 (7th Cir. 1987); Foremost Sales Promotions, Inc. v. Director, bureau of Alcohol, Tobacco & Firearms, 812 F.2d 1044 (7th cir. 1987).

Occidental submitted a proposed judgment, which the district court ignored and which did not find its way into the record on appeal. American served on January 7, 1987, a motion asking the district court to reconsider and pointing out, among other things, that the opinion of December 23 did not settle the entitlements of Cargo. After issuing a short explanation denying the motion for reconsideration, the court entered this additional document, again on the form for final judgments:

IT IS ORDERED AND ADJUDGED

Accordingly, the motion to reconsider is denied. The motion for summary ...


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