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INTERSTATE INDEM. CO. v. UTICA MUT. INS. CO.

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


May 2, 1994

INTERSTATE INDEMNITY COMPANY, Plaintiff,
v.
UTICA MUTUAL INSURANCE COMPANY, Defendant.

The opinion of the court was delivered by: WILLIAM D. STIEHL

MEMORANDUM AND ORDER

 STIEHL, District Judge:

 Before the Court is plaintiff's motion filed pursuant to Fed. R. Civ. P. 52(b) and 59, requesting the Court to amend its Memorandum and Order, and Judgment of March 25, 1994, or in the alternative, for a new trial.

 On March 25, 1994, the Court entered a Memorandum and Order which included findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52(a), and ruled in favor of defendant and against plaintiff. At trial, plaintiff presented claims of negligence and breach of the duty of good faith and fair dealing. The elements of a claim under these two theories are similar, as plaintiff must demonstrate that: (1) defendant owed a duty to plaintiff; (2) defendant breached that duty; and (3) the breach proximately caused plaintiff's damages. See Mason v. Ashland Exploration, Inc., 965 F.2d 1421, 1425 (7th Cir. 1992); Ranger Ins. Co. v. Home Indem. Co., 714 F. Supp. 956 (N.D. Ill. 1989). The March 25 Order essentially examined plaintiff's two claims collectively. In discussing the first element, duty, the Court noted the absence of Illinois and Seventh Circuit case law on the subject, and that federal district courts had split as to the existence of a duty. The Court did not rule on the question of duty, but assumed that a duty arose for the purpose of analyzing the elements of breach and causation. The Court ruled that defendant did not breach its duty to timely, adequately, or accurately inform plaintiff of its potential exposure, or its duty to engage in reasonable settlement negotiations. As to the final element, the Court held that plaintiff failed to establish that defendant proximately caused plaintiff's injury.

 Pursuant to Fed. R. Civ. P. 52(b), plaintiff requests the Court to amend its March 25 Memorandum and Order and judgment. In determining a Rule 52(b) motion, the Court should correct a judgment entered erroneously. Fontenot v. Mesa Petroleum Co., 791 F.2d 1207, 1219 (5th Cir. 1986). However, a Rule 52(b) motion seeking "to relitigate old issues . . . or to secure a rehearing on the merits" is inappropriate. Id. Plaintiff contends that the Court failed to discuss, consider and determine certain material facts presented in the evidence which warrant amendment of the judgment. Plaintiff also asserts that the Court erred in failing to specifically find a duty, a breach of duty, and causation. Plaintiff has submitted fourteen pages of additional proposed findings of fact and conclusions of law. Rather than address each point raised, the Court will generally discuss the topics raised in plaintiff's motion.

 First, the Court reaffirms its prior ruling on the issue of duty. Controlling case law provides no clear guidance, but nevertheless, the Court assumed that defendant did owe a duty to plaintiff. Plaintiff has proposed numerous factual findings related to the breach of a duty, several of which relate to the failure to disclose the results of an October 16, 1987 test conducted on Howell's motor, and to the alleged failure to notify plaintiff of the entirety of Mike Ryan's deposition testimony. The Court reviewed this evidence before issuing its findings of fact, and notes the previous finding that defendant did not notify plaintiff of the October 1987 product test. (Doc. #150, P 29). The Court reaffirms its previous conclusions that defendant did not breach its duty to timely, adequately, or accurately inform plaintiff of its potential exposure, and that defendant did not breach its duty to engage in reasonable settlement negotiations. See Kavanaugh v. Interstate Fire and Casualty Co., 35 Ill. App. 3d 350, 342 N.E.2d 116, 121 (Ill. App. 1975).

 Plaintiff has also proposed findings of fact which, if adopted, would establish causation. Plaintiff generally asserts that the Heiples would have settled for $ 1,000,000 because: (a) their attorney, Stephen Tillery, told plaintiff's attorney Robert Wilson that he would have accepted a $ 1,000,000 settlement; and (b) Heiple stated that Tillery told him he would "put $ 1,000,000 in his pocket." Tillery testified at trial that he would not have settled for less than $ 2,000,000, and Heiple's deposition testimony supports Tillery's testimony. The Court found Tillery's testimony credible. The March 25 Order properly found that plaintiff failed to establish that the Heiples would have settled for less than $ 2,000,000, and thus failed to establish causation. See Ranger, 714 F. Supp. at 962; National Union Fire Ins. Co. v. Continental Ill. Corp., 673 F. Supp. 267, 273 (N.D. Ill. 1987). The Court finds that plaintiff's proposed findings of fact and conclusions of law are not supported by the evidence before the Court, and the Court reaffirms its prior findings of fact and conclusions of law. For the above stated reasons, plaintiff is not entitled to an amendment of the March 25 Memorandum and Order, or Judgment pursuant to Rule 52(b), or to a new trial pursuant to Rule 59.

 Accordingly, the Court DENIES plaintiff's motion to amend the March 25, 1994 Memorandum and Order, and Judgment, or in the alternative, for a new trial.

 IT IS SO ORDERED.

 DATED: 2 May 1994

 William D. Stiehl

 DISTRICT JUDGE

19940502

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