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November 25, 1991



The opinion of the court was delivered by: MILTON I. SHADUR

These actions (combined on grounds of relatedness under this District Court's General Rule ("GR") 2.31) have very recently been reassigned to this Court's calendar on the departure of its former colleague Honorable Nicholas Bua to resume the practice of law. *fn1" Examination of the files has disclosed a set of fully-briefed motions for summary judgment under Fed. R. Civ. P. ("Rule") 56 that are potentially dispositive as to the higher-numbered case and will unquestionably have a major practical impact (though they are not fully dispositive) as to the lower-numbered case. This opinion addresses those motions.


 Both actions are properly in the federal court system on diversity-of-citizenship grounds (there is no question that much more than the jurisdictional floor of $ 50,000 is at issue in each) and under admiralty jurisdiction as well. Here are the parties and their citizenship:

 1. In 91 C 2287, California citizen Joyce Dreiling ("Dreiling") originally sued Illinois citizens John Maciuszek ("Maciuszek," Dreiling's fiance) and Eugene Lewis ("Lewis," a sole proprietor doing business as Christiansen Insurance Agency).

 2. In 91 C 3970, Commercial Union Insurance Companies, a Massachusetts corporation with its principal place of business in that state, sued Maciuszek for a declaration of noncoverage of the incident at issue in 91 C 2287 under the insurance policy that Commercial Union had issued to Maciuszek a few years earlier. *fn3"

 In addition to that original cast of characters, Advi Memisovski and his wife Theresa (collectively "Memisovskis") have intervened as plaintiffs in 91 C 2287 and as defendants in 91 C 3970. Although that intervention (they are Illinois citizens) would create subject matter jurisdictional problems by the destruction of total diversity in 91 C 2287, the subject matter of the litigation -- an accident involving a vessel on Lake Michigan, a navigable body of water -- is within the admiralty jurisdiction of the federal courts irrespective of citizenship.

 Before this opinion turns to the factual background underlying the lawsuits, it is necessary to unsnarl a procedural tangle that has also been revealed by this Court's examination of the court files in all three cases. For that purpose this Court has had to devise something like the reverse of Alexander the Great's fabled drastic surgery on the Gordian knot. What this District Court's files reflect is this:

 1. Originally 91 C 4027 (Maciuszek's declaratory judgment action against Commercial Union, the mirror image of Commercial Union's declaratory judgment action that had been filed against Maciuszek just one day earlier as 91 C 3970) was assigned to the calendar of another of this Court's colleagues, Honorable James Alesia.

 2. After 91 C 4027 had reached issue by the filing of Commercial Union's Answer, Judge Duff properly obtained reassignment of that case to his calendar on grounds of relatedness to Commercial Union's 91 C 3970 lawsuit (which was then on Judge Duff's calendar). That reassignment by this District Court's Executive Committee took place on July 29.

 3. On August 2 Judge Duff quite understandably issued an oral ruling dismissing 91 C 4027, for the case plainly presented nothing for decision beyond the issues that were already posed by 91 C 3970.

 4. On August 8 Judge Bua -- obviously unaware of that recent dismissal -- requested reassignment of both 91 C 3970 and 91 C 4027 to his calendar as being related to the underlying personal injury action against Maciuszek (91 C 2287) then pending on his own calendar. On that same day an order of reassignment was entered in both those cases: the live 91 C 3970 and the already-defunct 91 C 4027. Judge Bua promptly proceeded to order all three (sic) cases consolidated.

 5. It seems that by that time no one except the Clerk's Office knew what was going on. In still another bizarre development, Dreiling later requested and on September 19 Judge Bua granted her leave to intervene as a co-plaintiff in 91 C 4027 -- the no-longer-pending case! And all the summary judgment motions and briefing since then have proceeded on the false premise that all three cases (rather than the two actual survivors) were still pending -- with most if not all of the parties' filings bearing the captions of all three cases.

 6. As already indicated, Memisovskis have intervened in the right case -- as added defendants in Commercial Union's declaratory judgment action (91 C 3970).

 What is without question in all this is that everyone wishes to be bound by the decision in the cross-motions for summary judgment that have been presented in the declaratory judgment proceedings (which at this point, as for some months past, means only 91 C 3970). It is equally clear that there is no point in reviving 91 C 4027 even if that could be done: Its August 2 dismissal has months ago become a final and non-reviewable order. What this Court therefore instead orders is simply this:

 1. Dreiling is also made a co-defendant (as Memisovskis already are) in 91 C 3970. All of her submissions in the consolidated proceedings -- both offensively and defensively in the cross-motions for summary judgment -- are therefore deemed as having been filed in that case rather than in 91 C 4027, which had actually been terminated even before the first brief was filed on the summary judgment motions.

 2. Commercial Union's filings in opposition to Dreiling's are also deemed filed solely in 91 C 3970. That properly pits Dreiling (as well as Maciuszek and Memisovskis) against Commercial Union in cross-motions that are ripe for decision in 91 C 3970, which as already stated is the only pending declaratory judgment action as to the coverage or noncoverage by Commercial Union's Policy of the accident in which Dreiling and Memisovskis were injured.

 As just suggested, both still-pending actions revolve around a June 30, 1990 collision in which Maciuszek's 1990 Ebbtide Cuddy motorboat (the "Ebbtide Cuddy") collided with a breakwater in Lake Michigan, injuring passengers Dreiling and Memisovskis. What controls the declaratory judgment action to which Commercial Union is a party is the question whether its Harbormaster Policy No. CW U79 20 60 (the "Policy") covers Maciuszek for any liability that he may sustain due to the personal injuries that are asserted against him by Dreiling and Memisovskis in 91 C 2287.

 When the Policy was originally issued Maciuszek had owned a different motorboat described as a 1978 Four Winds (the "Four Winds"), which he had purchased as a used vessel from his father. Acquaintances who kept boats at the same marina had recommended that Maciuszek confer with independent insurance agent Lewis, who does a substantial amount of business in procuring insurance for his customers who own private pleasure craft. After discussing with Maciuszek all of the relevant facts about the Four Winds, including the locations where Maciuszek wanted to use it (Maciuszek told Lewis that would be only on the Illinois and Kankakee Rivers), *fn4" Lewis obtained and advised Maciuszek of three quotations from insurance companies that were willing to underwrite the coverage. Commercial Union was the low bidder.

 Maciuszek then asked Lewis to purchase insurance for the Four Winds. Lewis filled out the necessary application based on the information that Maciuszek had given him, including the directive as to the limited area where the Four Winds would be used. In that latter respect, the combined Binder/Application form (a photocopy of which is attached as Ex. A to this opinion) contained six alternative choices as to the permitted "Navigation Territory," only one of which was to be checked:




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