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IN RE COMDISCO VENTURES

June 8, 2005.

IN RE: COMDISCO VENTURES, INC., et al., Debtors. COMDISCO VENTURES, INC. Plaintiff,
v.
FEDERAL INSURANCE COMPANY, VIGILANT INSURANCE COMPANY, ABD INSURANCE AND FINANCIAL SERVICES, HAMPSON MOWRER KREITZ AGENCY, INC., SUMMIT GLOBAL PARTNERS OF TEXAS, INC., CRIST ELLIOT MACHETTE INSURANCE SERVICES, and ACCORDIA OF CALIFORNIA INSURANCE SERVICES, INC., Defendants.



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

MEMORANDUM OPINION AND ORDER

On February 18, 2004, plaintiff, Comdisco Ventures, Inc. ("Comdisco"), filed a fifteen-count Adversary Complaint in United States Bankruptcy Court for the Northern District of Illinois (case number 04-A-00285) against defendants, Federal Insurance Company ("Federal"), Vigilant Insurance Company ("Vigilant") (together, the "Chubb defendants"), ABD Insurance and Financial Services ("ABD"), Hampson Mowrer Kreitz Agency, Inc. ("HMK"), Summit Global Partners of Texas, Inc. ("Summit"), Crist Elliot Machette Insurance Services ("Crist"), and Accordia of California Insurance Services, Inc. ("Accordia") (together, the "broker defendants"). Counts I and II allege breach of contract and breach of the implied covenant of good faith and fair dealing against the Chubb defendants. The remaining counts allege professional negligence against Crist (Count XII) and professional negligence, negligent misrepresentation, and intentional misrepresentation against each of the other broker defendants. Subsequently, two defendants in case number 04-A-00285 filed motions to withdraw the reference to bankruptcy court, and their motions were assigned to this court as case numbers 04-C-2007 and 04-C-2393. On June 18, 2004, this court granted the motions to withdraw the reference. Before the court are the following motions: the Chubb defendants' Motion to Dismiss Count II (breach of the implied covenant of good faith and fair dealing);*fn1 ABD's Motion to Dismiss or, in the alternative, for a more particularized statement of plaintiff's fraud claims; HMK's Motion to Dismiss Counts VII (negligent misrepresentation) and VIII (intentional misrepresentation); Summit's Motion to Dismiss; Crist's Motion to Dismiss Count XII (professional negligence);*fn2 and Accordia's Motion to Dismiss. For the reasons stated below, the court denies all of the motions.

MOTION TO DISMISS STANDARDS

  A motion to dismiss under Rule 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 set of facts in support of his claim that would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Sanville v. McCaughtry, 266 F.3d 724, 732 (7th Cir. 2001). In ruling on a motion to dismiss, 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).

  In addition to the mandates of Rule 12(b)(6), Federal Rule of Civil Procedure 9(b) requires "all averments of fraud" to be "stated with particularity," although "[m]alice, intent, knowledge, and other condition of mind of a person may be averred generally." "The rule requires the plaintiff to state the identity of the person who made the misrepresentation, the time, place, and content of the misrepresentation, and the method by which the misrepresentation was communicated to the plaintiff." Vicom, Inc. v. Harbridge Merch. Servs., Inc., 20 F.3d 771, 777 (7th Cir. 1994); see also DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990) ("Although states of mind may be pleaded generally [under Rule 9(b)], the `circumstances' must be pleaded in detail. This means the who, what, when, where, and how: the first paragraph of any newspaper story.").

  THE PARTIES

  Comdisco Ventures, Inc. is a Delaware Corporation with its principal place of business in Rosemont, Illinois. On July 16, 2001, Comdisco, Inc. filed a Voluntary Bankruptcy petition in the United States Bankruptcy Court of the Northern District of Illinois (the "Bankruptcy Court") for reorganization relief under Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 101 et seq. On July 30, 2002, the Bankruptcy Court entered an order confirming the First Amended and Joint Plan of Reorganization of Comdisco, Inc. and its Affiliate Debtors in Possession dated June 13, 2002. The Reorganization Plan became effective on August 12, 2002. Comdisco, Inc. continues to operate its business and manage its properties as a reorganized debtor pursuant to 11 U.S.C. §§ 1107(a) and 1108 of the Bankruptcy Code. Comdisco Ventures, Inc. is a wholly owned subsidiary of Comdisco, Inc. formed pursuant to the Reorganization Plan. Comdisco Ventures, Inc. holds all of the assets constituting the former Venture Finance Division of Comdisco, Inc. For purposes of the pending motions, the parties treat Comdisco Ventures, Inc. as synonymous with the debtor, Comdisco, Inc., and the court does as well, referring to them collectively as Comdisco.

  Federal is a stock insurance company incorporated in the state of Indiana with its principal place of business in Warren, New Jersey. At all relevant times, Federal was duly authorized and licensed to write and issue insurance policies in the state of Illinois.

  Vigilant is a stock insurance company incorporated in the state of New York with its principal place of business in Warren, New Jersey. At all relevant times, Vigilant was duly authorized and licensed to write and issue insurance policies in the state of Illinois.

  ABD is an insurance brokerage service incorporated in the state of California with its principal place of business in Redwood City, California. At all relevant times, ABD was duly licensed to broker insurance policies in the state of Illinois.

  HMK is an insurance brokerage service incorporated in the state of Pennsylvania with its principal place of business in Bethlehem, Pennsylvania. At all relevant times, HMK was duly licensed to broker insurance policies in the state of Illinois.

  Summit is an insurance brokerage service incorporated in the state of Texas with its principal place of business in Dallas, Texas. At all relevant times, Summit was duly licensed to broker insurance policies in the state of Illinois. Crist is an insurance brokerage service incorporated in the state of California with its principal place of business in Oakland, California. At all relevant times, Crist was duly licensed to broker insurance policies in the state of Illinois.

  Accordia is an insurance brokerage service incorporated in the state of California with its principal place of business in San Francisco, California. At all relevant times, Accordia was duly licensed ...


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