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FIREMAN'S FUND INSURANCE, CO. v. WERNER ENTERPRISE INC.

February 5, 2004.

FIREMAN'S FUND INSURANCE COMPANY, a/s/o VERIZON WIRELESS COMMUNICATIONS INCORPORATED, Plaintiff,
v.
WERNER ENTERPRISES INC., a Nebraska Corporation; BUNCH TRANSPORT INC. a South Carolina Corporation; the SHERIFF of WAYNE COUNTY, Illinois; EVERETT McCULLEY, a Wayne County Sheriff's Deputy; J.B. FLETCHER, the Wayne County Sheriff's Chief Deputy, Defendants



The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge

MEMORANDUM OPINION AND ORDER

On August 12, 2003, plaintiff, Fireman's Fund Insurance Company, a/s/o Verizon Wireless Communications Incorporated,*fn1 filed a four count First Amended Complaint against defendants, Werner Enterprises Inc., a Nebraska Corporation ("Werner"); Bunch Transport, Inc., a South Carolina Corporation ("Bunch"); Sheriff of Wayne County, Illinois; Everett McCulley ("McCulley"), a Wayne County Sheriff's Deputy; and J.B. Fletcher ("Fletcher"), the Wayne County Sheriff's Chief Deputy.*fn2 Counts I and IT are claims under the Carmack Amendment, 49 U.S.C. § 14706, Page 2 against both "Werner and Bunch. Counts III and IV are state law claims against the Wayne County defendants for "violation of statutory procedures regarding recovered property" and violation of the Law Enforcement Disposition of Property Act, 765 ILCS 10/30-2 et seq. This court has original jurisdiction pursuant to 28 U.S.C. § 1331 over the claims against Werner and Bunch based on the Carmack Amendment and supplemental jurisdiction over the claims against the Wayne County defendants pursuant to 28 U.S.C. § 1367.

On October 17, 2003, Bunch filed a cross-claim against the Wayne County defendants seeking "indemnification, contribution or apportionment of liability." Currently pending before the court are two motions: (1) the Wayne County defendants' motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss Counts III and IV of plaintiff's First Amended Complaint and (2) the Wayne County defendants' motion under Rule 12(b)(6) to dismiss Bunch's cross-claim. For the reasons set forth below, both motions are granted.

  MOTION TO DISMISS STANDARDS

  A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the complaint for failure to state a claim upon which relief may be granted. General Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). Dismissal is appropriate only if it appears beyond a doubt that the plaintiff can prove no facts in support of its claim that would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Kennedy v. Nat'l Juvenile Det. Assoc., 187 F.3d 690, 695 (7th Cir. 1999). In ruling on the motion, the court accepts as true all well pleaded facts alleged in the complaint, and it draws all reasonable inferences from those facts in the plaintiff's favor. Dixon v. Page, 291 F.3d 485, 486 (7th Cir. 2002); Jackson v. E.J. Brach Corp., 176 F.3d 971, 977 (7th Cir. 1999), Page 3

  ALLEGATIONS OF THE COMPLAINT

  According to the First Amended Complaint, which is taken as true for purposes of this motion, on or about September 20, 2002, Werner and/or Bunch, through their employees or agents, accepted a shipment of 37,000 V720C model wireless telephones (the "subject shipment") from Motorola in Harvard, Illinois for the account of Verizon and/or Verizon's customer, Radio Shack, located in North Charleston, South Carolina. (First Am, Compl. ¶ 4.) Werner and Bunch received the subject shipment in good order, quantity and condition, (First Am. Compl. ¶ 5,) The subject shipment had a value of approximately $630,000.00. (First Am, Compl. ¶ 12.)

  The driver of the trailer unit which received the shipment from Motorola was Thomas Futch ("Futch"), who was authorized to accept the subject shipment on behalf of Werner and/or Bunch. (First Am. Compl. ¶¶ 7-8.) Shortly after Futch accepted the subject shipment, it was stolen from a truck stop in Rochelle, Illinois while in Futch's care, custody and control. (First Am, Compl. ¶ 11.) Thereafter, on September 24, 2002, McCulley and Fletcher recovered the subject shipment with only one cellular phone missing, (First Am, Compl, ¶ 13.) McCulley and Fletcher took care, custody and control of the subject shipment and were aware that it contained cellular phones. (First Am. Compl. ¶ 15.) McCulley and Fletcher then drove the trailer containing the subject shipment to an unfenced and unsecured lot adjacent to a gas station and secured the trailer doors with a padlock. (First Am, Compl, ¶ 16.) In addition, they also removed the key from the ignition. (Id.) They later contacted Verizon employees and advised them that the lot was well-lit and/or open 24 hours, (First Am, Compl. ¶ 17.) Page 4

  At some point between when McCulley and Fletcher assumed care, custody and control of the subject shipment on September 24, 2002 and the early morning hours of September 25, 2002, the shipment disappeared from the trailer. (First Am. Compl. ¶ 20.) Plaintiff alleges that McCulley and Fletcher's actions were either negligent or reckless and either resulted from an actual and deliberate intention to cause plaintiff's subrogor harm or showed an utter indifference to or conscious disregard for the safety of plaintiff's subrogor. (First Am. Compl. ¶ 24.) As a result of the disappearance of the subject shipment. Fireman's Fund made a payment to Verizon under an insurance policy between the two parties for $605,000.00. (First Am. Compl. ¶ 28.) Verizon bad a $25,000 deductible under the policy which constitutes the damages it sustained as a result of the disappearance, (First Am, Compl, ¶ 29.)

  DISCUSSION

 A. Motion to Dismiss Plaintiff's Claims Against the Wayne County Defendants

  The Wayne County defendants move to dismiss the Count III and IV claims brought against them, Count III alleges violation of "statutory procedures regarding recovered property," while Count IV alleges a statutory violation of the Law Enforcement Disposition of Property Act, 765 ILCS 10/30-2.*fn3 The Wayne County defendants believe the claims should be dismissed because they are afforded immunity from liability by Sections 4-102 and 2-201 of the Illinois Page 5 Ton Immunity Act, 745 ILCS 10/1-101 et seq. (the "Act"). Section 4-102 of the Act provides,
Neither a local public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide adequate police protection service, failure to prevent commission of crimes, failure to detect or solve crimes, and failure to identify or apprehend criminals.
745 ILCS 10/4-102. Section 2-201 of the Act provides,
 
Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of discretion even though abused.
745 ILCS 10/2-201.

  Starting with the argument under Section 4-102, this statutory section was meant to codify the "public duty role" under which "a municipality could not be held liable for failure to provide adequate government services, such as police and fire protection." Hernandes v. Kirksey, 306 III. App.3d 912, 915, 715 N.E.2d 669, 672 (1999). It "rests upon policy considerations that a police department's negligence, oversights, blunders or omissions are not the proximate or legal cause of harms committed by others." Id. 715 N.E.2d at 672 (quoting Schaffrath v. Village of Buffalo Grove, 160 Ill. App.3d 999, 1003, 513 N.E.2d 1026, 1028 (1987)), Courts have applied the provisions of Section 4-102 broadly. See, e.g., McLellan v. City of Chicago Heights, 61 F.3d 577, 578 (7th Cir. 1995) (immunity applies where police and firefighters performed crowd control services at a fireworks display because such activities were "police services"); Medina v. City of Chicago, Mo. 01 C 9490, 2002 WL 31027965, at *6 (N.D. Ill. Sept. 10, 2002) (concluding that immunity applies because officers performed police services when they failed to transport intoxicated bystander to hospital); Estes v. Chicago Bd. of Educ., Page 6 No. 98 C 2197, 1998 WL 516107, at *1 (N.D Ill., Aug. 13, 1998) (applying immunity to Chicago Board of Education's failure to detect or prevent a crime); Hernandez, 306 Ill. App.3d at 917, 715 N.E.3d at 673 (applying immunity to crossing guard because such services were police protection services), This ...


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