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