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. (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 Ohio Casualty's Motion for Judgment on
the Pleadings asking the Court to enter judgment on the pleadings
against Madison County and Parente and find that Ohio Casualty
has no duty or obligation to defend Madison County and Parente in
the Fisher lawsuit. (Docs. 101 & 102). Defendants Madison
County and Parente oppose the motion. (Docs. 104 & 105). For
the reasons set forth below, the Court finds that Ohio Casualty
has no duty to defend Madison County and Parente in the Fisher
Ohio Casualty's Third Amended Complaint for Declaratory
Judgment rests on the Fishers' Third Amended Complaint. (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,
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. There is no claim for negligence against
Madison County and Parente.
According to the Third Amended Complaint, Ohio Casualty has
refused the tender of defense by Madison County ...