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HERMITAGE INS. CO. v. DAHMS

January 10, 1994

HERMITAGE INSURANCE COMPANY, Plaintiff,
v.
RICHARD DAHMS, et al., Defendants.



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

 Hermitage Insurance Company ("Hermitage") has brought this action against Richard Dahms ("Dahms"), R.C.D. Enterprises, Inc. ("R.C.D.") and other defendants under the Declaratory Judgment Act, 28 U.S.C. ยง 2201. Hermitage seeks a judicial ruling that it has no obligation under a policy issued to R.C.D. (the "Policy") either to defend or to indemnify R.C.D. and Dahms in connection with a dramshop action brought against them and David Rybak ("Rybak") by John Medlin ("Medlin") in the Circuit Court of Cook County (Medlin v. Dahms, No. 92 L 8152). Hermitage on the one hand and R.C.D. and Dahms on the other *fn1" have moved for summary judgment under Fed. R. Civ. P. ("Rule") 56. For the reasons stated in this memorandum opinion and order, Hermitage's motion is granted.

 Rule 56 principles impose on any movant the burden of establishing the lack of a genuine issue of material fact ( Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). For that purpose this Court is "not required to draw every conceivable inference from the record--only those inferences that are reasonable"--in the light most favorable to the nonmovant ( Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991) and cases cited there). Where as here cross-motions are involved, that principle thus demands a dual perspective--one that this Court has often described as Janus-like--that sometimes involves the denial of both motions.

 This District Court's General Rules ("GR") 12(m) and 12(n) require the submission of factual statements respectively in support of and in opposition to Rule 56 motions. R.C.D. and Dahms have filed a GR 12(m) statement (the "12(m) Statement"), while Hermitage has neither contested that statement as allowed under GR 12(n) nor filed its own GR 12(m) statement. *fn2" Consequently the material facts set out in the 12(m) Statement that are supported by the factual record are deemed admitted ( Stewart v. McGinnis, 5 F.3d 1031, 1034 (7th Cir. 1993)). Because the outcome here depends upon:

 
1. the causes of Medlin's injuries as alleged in his Circuit Court Complaint and
 
2. the precise coverage to which R.C.D. and Dahms are entitled under the Policy,

 this Court relies on those documents (both of which are exhibits to Hermitage's Complaint) to assess the accuracy of the 12(m) Statement (see, e.g., Scherer v. Rockwell Int'l Corp., 766 F. Supp. 593, 595 n.1 (N.D. Ill. 1991)).

 Facts

 Medlin's Lawsuit

 R.C.D. d/b/a Ricky D's is a dramshop (a bar) located at 7900 Ogden Avenue, Ogden, Illinois. As already stated, Dahms is an officer-shareholder of R.C.D. Because the nature of Medlin's claims provides the key to the Policy's coverage or noncoverage, Medlin's substantive allegations in his Circuit Court action are reproduced at length here.

 
[COUNT I] *fn3"
 
2. That prior to 2:00 a.m. on July 21, 1991, said Defendants [Dahms and R.C.D. d/b/a Ricky D's] sold liquor to sever [sic] unknown male patrons of their dram shop, causing the intoxications [sic] of said unknown persons.
 
3. That as a result of the intoxication of said unknown persons, said persons assaulted the plaintiff [Medlin] both inside and outside of Defendants's [sic] dram shop, and he was forced into the path of an automobile as a result of which he was struck by said automobile, causing him to suffer: [injuries].
 
* * *
 
COUNT II (Re: RICKY D's)
 
1-3. Plaintiff Realleges [sic] paragraphs 1, 2, and 3 of Count I.
 
4. That Defendant owed a duty to its customers, including the Plaintiff, to provide reasonable or adequate security to provide for their safety.
 
5. That the Defendants violated this duty to the Plaintiff by one or more of the following acts or omissions:
 
a. Failed to maintain order in their place of business;
 
b. Continued to sell intoxicating beverages to persons who were argumentative and violent;
 
c. Failed to take any action to provide for the protection of the Plaintiff when they had reasonable notice that he was in danger ...

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