Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

INDIANA LUMBERMENS M. v. SPECIALTY WASTE

September 30, 1991

INDIANA LUMBERMENS MUTUAL INSURANCE COMPANY, PLAINTIFF,
v.
SPECIALTY WASTE SERVICES, INC., AND J & S ASBESTOS REMOVAL, INC., DEFENDANTS.



The opinion of the court was delivered by: Richard Mills, District Judge:

OPINION

"Colorado River Doctrine" and Illinois Code of Civil Procedure § 2-619(a)(3).

Does § 2-619 apply to a federal court hearing a diversity case pursuant to 28 U.S.C. § 1332.

No!

Defendant Specialty Waste Services, Inc.'s motion to dismiss.*fn1

Facts

Indiana Lumbermens Mutual Insurance Company (hereafter, Indiana Lumbermens) was the surety on a project to remove asbestos at the State Farm Insurance headquarters in Bloomington, Illinois. The principal on the surety bond and the party obligated to perform the work was J & S Asbestos, Inc. State Farm terminated J & S Asbestos based on allegedly poor performance and demanded Indiana Lumbermens complete the work. Indiana Lumbermens contracted with Specialty Waste Services, Inc. (hereafter, Specialty Waste) to complete the work.

Both J & S Asbestos and Specialty Waste agreed to indemnify Indiana Lumbermens for any losses incurred on the project attributable to their conduct and both posted letters of credit.

State Farm made a claim against Indiana Lumbermens for damages caused by the late completion of the work. Indiana Lumbermens settled State Farm's claim and drew down on the letter of credit from J & S Asbestos.

In 1989, Indiana Lumbermens filed suit in the Circuit Court of Cook County seeking money damages from Specialty Waste and J & S Asbestos. Thereafter, Specialty Waste filed suit against Indiana Lumbermens and the Bank of Alton to stay Indiana Lumbermens from drawing on the letter of credit posted by Specialty Waste. Specialty Waste then succeeded in getting the Cook County suit transferred to Madison County. While Indiana Lumbermens was trying to get a hearing on a motion to voluntarily dismiss the case pursuant to § 2-1005 of the Illinois Code of Civil Procedure, Specialty Waste filed an answer and counterclaim. Indiana Lumbermens motion to voluntarily dismiss was originally allowed, but that order was vacated after the Judge was alerted that Specialty Waste had filed a counterclaim before the dismissal order was entered. J & S Asbestos has been voluntarily dismissed from the Madison County case wherein it was a Defendant because Indiana Lumbermens was made whole when it drew down J & S Asbestos' letter of credit.

Turning to the proceedings in this court, Specialty Waste filed a motion for an extension of time to answer or otherwise plead until January 14, 1991. On January 3, 1991, J & S Asbestos answered the complaint and filed a counterclaim seeking $500,000 in damages. On January 14, 1991, Specialty Waste filed this motion to dismiss. Indiana Lumbermens has filed an answer to the counterclaim on March 12, 1991. Specialty Waste has not yet answered the complaint.

Specialty Waste's motion to dismiss this case is based on § 2-619(a)(3) of the Illinois Code of Civil Procedure. Indiana Lumbermens contends that § 2-619 should not be applied by a federal court and that if it is applicable in federal court, this case still should not be dismissed pursuant to it.

Analysis


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.