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OHIO CASUALTY INSURANCE CO. v. MADISON COUNTY

June 2, 2005.

OHIO CASUALTY INSURANCE CO., Plaintiff,
v.
MADISON COUNTY, ILLINOIS, an Illinois municipal corporation, JOSEPH D. PARENTE, and Defendants, O'BRYAN CONSULTING, INC., Defendant/Third-Party Plaintiff, v. ESSEX INSURANCE COMPANY, Third-Party Defendant/Counter-Plaintiff, v. MADISON COUNTY, ILLINOIS, an Illinois municipal corporation, JOSEPH D. PARENTE, and O'BRYAN CONSULTING, INC., Counter-Defendants.



The opinion of the court was delivered by: DAVID HERNDON, District Judge

MEMORANDUM AND ORDER*fn1

I. Introduction

Plaintiff Ohio Casualty Insurance Company ("Ohio Casualty") brought this declaratory judgment action pursuant to 28 U.S.C. § 2201 and 28 U.S.C. § 1332 against Madison County, Illinois ("Madison County") and Geraldine and Nevan Fisher (the "Fishers").*fn2 (Doc. 1). On August 11, 2004, Ohio Casualty filed its Third Amended Complaint against Madison County, Joseph Parente ("Parente"), Administrator of the Madison County Planning and Development Department, and O'Bryan Consulting, Inc., ("O'Bryan") seeking a declaration that it has no duty to defend them in a lawsuit filed by the Fishers, Fisher v. County of Madison, Illinois, 03-CV-58-DRH (S.D. Ill. filed Feb. 3, 2003) (Count I) and seeking reimbursement of the costs for defending O'Bryan in the Fisher suit (Count II). (Doc. 51). By Memorandum and Order dated February 22, 2005, the Court found Ohio Casualty had a duty to defend O'Bryan in the Fisher suit. (Doc. 110).

  On August 25, 2004, O'Bryan filed a Third Party Complaint for Declaratory Judgment and Demand for Jury Trial against Essex Insurance Company ("Essex") asking the Court to determine whether Essex owes a duty to defend and/or indemnify O'Bryan in the Fisher suit and to determine the respective responsibilities of Essex and/or Ohio Casualty, among other things. (Doc. 61). Essex in turn has filed a Counterclaim for Declaratory Judgment against O'Bryan, Madison County, and Parente seeking a declaration that it has no duty to defend or indemnify them in the Fisher suit (Count I) and seeking reimbursement of the costs for defending O'Bryan in the Fisher suit (Count II).*fn3 (Doc. 77).

  Now before the Court is Essex's Motion for Judgment on the Pleadings and Memorandum in Support.*fn4 (Doc. 103). Counter-Defendants Madison County and Parente oppose the motion (Docs. 107 & 108) by incorporating their response to Ohio Casualty's motion for judgment on the pleadings. Similarly, Counter-Defendant O'Bryan opposes the motion. (Doc. 116).

  For the reasons set forth below, the Court grants in part Essex's Motion for Judgment on the Pleadings with respect to Count I of its Counterclaim (Doc. 103) and finds Essex has no duty to defend and/or indemnify O'Bryan, Madison County or Parente in the Fisher suit. The Court also dismisses Count II of Essex's Counterclaim given the Illinois Supreme Court's decision in General Agents Ins. Co. of America, Inc. v. Midwest Sporting Goods Co., ___ N.E.2d ___, No. 98814, 2005 WL 674685, at *11 (Ill. March 24, 2005). Further, because the Court finds Essex has no duty to defend or indemnify O'Bryan, the Court dismisses O'Bryan's Third Party Complaint with prejudice.

  II. Background

  A. The Fisher Suit

  Essex's Counter claim rests on the Fishers' Third Amended Complaint.*fn5 (Doc. 51, Ex. B).

  In their Third Amended Complaint the Fishers allege sometime prior to October 18, 2001 Madison County Planning and Development Department sent an undated notice to the Bank of Edwardsville, as Successors Trustee under the Land Trust Agreement, stating the building or buildings on 3733 Ridgeview Road, Edwardsville, Illinois, were hazardous and were to be repaired or demolished within thirty (30) days or Madison County would undertake the task. (Doc. 51, Third Amended Complaint and Jury Demand ("Compl.") at Count I ¶ 11, Count II ¶ 10). The Fishers owned the land subject to the notice via a land trust. (Compl. at Count I ¶ 10, Count II ¶ 9).

  On November 12, 2001, Nevan Fisher sent notice to Parente regarding his contract to have the house, garage, and corn crib demolished and removed from the premises. (Id. at Count I ¶ 12, Count II ¶ 11). On November 15, 2001, Geraldine Fisher obtained demolition permit numbers B01-1413 and B01-1414 from the Madison County Planning and Development Department to demolish the house, garage, and corn crib on the Fishers' property. (Id. at Count I ¶ 13, Count II ¶ 12).

  Between November 16-23, 2001, Scott Schmidt Excavating and Hauling performed the demolition of the alleged "dangerous structures" on the Fishers' property. (Id. at Count I ¶ 14, Count II ¶ 13). Approximately two months after the Fishers allegedly corrected the ordinance violations on their property, Madison County, under the direction of Parente, solicited bids for the demolition of the Fishers' property. (Id. at Count I ¶ 15, Count II ¶ 14). On January 26, 2002, O'Bryan submitted a bid to the Madison County Community Development Board to demolish the Fishers' property. (Id. at Count I ¶ 16, Count II ¶ 15). On January 30, 2002, Madison County awarded a demolition contract to O'Bryan. (Id. at Count I ¶ 17, Count II ¶ 16). On February 7, 2002, O'Bryan signed a contract, obtained the relevant permits, and demolished two barns and one metal shed on the Fishers' property. (Id. at Count I ¶¶ 18, 19; Count II ¶¶ 17, 18). During the demolition, the Fishers allege Madison County, Parente, and O'Bryan also took two antique vehicles owned by the Fishers, wood from one of the demolished barns, twenty truck loads of clean concrete, and street-sweeping vehicle parts from the metal shed on their property. (Id. at Count I ¶ 20, Count II ¶ 18). On April 3, 2002, Madison County, under the direction of Parente, tendered payment of $2,900.00 to O'Bryan and filed a lien against the Fishers' property for that amount. (Id. at Count I ¶ 22, 23).

  Count I of the Fishers' complaint is a claim against Madison County, Parente, and O'Bryan for deprivation of property under 42 U.S.C. § 1983. The Fishers allege that Madison County, Parente, and O'Bryan, individually and collectively, acted to violate their constitutional rights to their property in one or more of the following manners: (1) knowingly and intentionally or with reckless disregard destroyed their property; (2) knowingly and intentionally or with reckless disregard converted their personal property; or (3) entered upon the Fishers' land to destroy their property and to convert their personal property without due process of law. (Id. at Count I ¶ 24). The Fishers ask for actual damages in excess of $75,000, attorneys' fees, and costs.

  Count II of the complaint is a negligence claim (added by an amendment to the Fishers' complaint) against O'Bryan only. The Fishers allege that O'Bryan was negligent in one or more of the following: (1) negligently or with reckless disregard for the Fishers' rights destroyed their property; (2) negligently or with reckless disregard for the Fishers' rights converted their personal property; (3) negligently and carelessly entered upon the Fishers' land to destroy their property; or (4) failed to review Madison County records prior to demolishing the Fishers' property to determine whether the dangerous structures had previously been demolished. (Id. at Count II ¶ 20). The Fishers allege as a result of O'Bryan's negligence they were deprived of their property. (Id. at Count II ¶ 21). The Fishers ask for actual damages in excess of $75,000 and costs. According to Essex's Counterclaim for Declaratory Judgment, O'Bryan subcontracted a portion of its work to Levco, C.D.S. ("Levco"). (Doc. 77, Essex Insurance Co.'s Answer to O'Bryan Consulting, Inc.'s Third Party Complaint for Declaratory Judgment and Counterclaim for Declaratory Judgment at p. 4). As part of its subcontract, Levco was required to include O'Bryan and Madison County ...


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