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Sieron v. Hanover Fire and Casualty Insurance Co.

April 27, 2007

E.J. SIERON, ET AL., PLAINTIFFS,
v.
HANOVER FIRE AND CASUALTY INSURANCE COMPANY, A SUBSIDIARY OF HANOVER HOLDINGS, INC., AND THOMAS RIPPERDA, RESPONDENT IN DISCOVERY, DEFENDANTS.



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

MEMORANDUM AND ORDER

This matter comes before the Court on defendant Hanover Fire and Casualty Insurance Company's (Hanover) motion to dismiss (Doc. 30). The plaintiffs have filed a brief in opposition to this motion (Doc. 55), and Hanover has replied (Doc. 62). For the following reasons, Hanover's motion to dismiss will be GRANTED IN PART AND DENIED IN PART.

BACKGROUND

Fire destroyed plaintiff Theresa Harriel (Harriel), Angela and Oka Williams (the Williams), and Curtis Warner's (Warner) homes on October 20, 2005, November 11, 2005, and December 5, 2005 (collectively the individual plaintiffs). The individual plaintiffs obtained insurance for their homes from Hanover and filed claims in accordance with the terms of their policies. Hanover sent Thomas Ripperda (Ripperda) to investigate these claims. Ripperda offered Harriel a compromised settlement of $17,300.00, which she accepted, and Warner a compromised settlement of $18,266.35, which he accepted. On May 31, 2006, Hanover denied the Williams' claim. To date, Hanover has neither denied nor paid Harriel or Warner's claims.

Unhappy about Hanover's failure to pay their claims, Harriel, the Williams, and Warner, joined by Golden Properties, Inc. (Golden), Arrow Realty, Inc. (Arrow) and E.J. Sieron (Sieron) filed this action in state court on May 24, 2006; Golden, Arrow and Sieron purport to have an interest in this litigation because they sold the individual plaintiffs their homes pursuant to contracts for deed. Hanover removed the case to this Court on June 26, 2006 (Doc. 3) and filed a motion to dismiss on July 17, 2006. Plaintiffs filed an amended complaint on September 12, 2006 (Doc. 25) and Hanover again moved to dismiss on October 12, 2006 (Doc. 30). The plaintiffs sought leave to amend their complaint once again (Doc. 32). The Court granted plaintiffs' motion to amend, but, in light of Hanover's opposition, declined to find the motion moot and ordered plaintiffs to respond.

Plaintiffs' second amended complaint (Doc. 51) contains the following nineteen claims for relief: Counts I, VIII, and XV by the individual plaintiffs for breach of their policies, Counts II, IX, and XVI by the individual plaintiffs for violations of 215 ILCS 5/155, Counts III and X by Harriel and Warner for breach of their settlement agreements, Counts IV and XI by Harrier and Warner for promissory estoppel, Counts V and XII by Harriel and Warner for violations of the Consumer Fraud Act, 815 ILCS 505/1-505/12 (CFA), Counts VI, XIII and XVII by Golden, Sieron and Arrow for breach of the individual plaintiffs' policies, Counts VII, XIV and XVIII by Golden, Sieron and Arrow for violations of 215 ILCS 5/155 of the Illinois Insurance Code, and Count XIX by all plaintiffs for negligence.

ANALYSIS

I. Standard on a 12(b)(6) Motion

When reviewing a Rule 12(b)(6) motion to dismiss, the Court accepts all allegations in the complaint as true and draws all reasonable inferences in favor of the plaintiffs. Moranski v. Gen. Motors Corp., 433 F.3d 537, 539 (7th Cir. 2005); Holman v. Indiana, 211 F.3d 399, 402 (7th Cir. 2000). The Court will not grant a motion to dismiss unless it appears beyond doubt that plaintiffs cannot prove their claims under any set of facts consistent with the complaint. McDonald v. Household Int'l, Inc., 425 F.3d 424, 428 (7th Cir. 2005). Similarly, it will not grant a motion to dismiss because the complaint is vague or lacking in detail, so long as it pleads "the bare minimum facts necessary to put the defendant on notice of the claim so that he can file an answer." Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002).

II. Joinder

Hanover requests dismissal of all plaintiffs' claims for misjoinder. Whether or not the plaintiffs are misjoined, dismissal of this action is not the proper remedy. F.R.Civ.P. 21 ("Misjoinder of parties is not ground for dismissal of an action.").*fn1 That aside, Federal Rule of Civil Procedure 20 provides the applicable standard. It provides:

All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action.

F.R.Civ.P. 20. In their response to Hanover's motion, plaintiffs focus entirely on the factual commonality among their respective claims, they do not address the second prerequisite, "transactional relatedness." For joinder to be appropriate, plaintiffs must meet both prerequisites. Harris v. Spellman, 150 F.R.D. 130, 131 (N.D. Ill. 1993).

While plaintiffs' claims clearly implicate common questions of law and fact, they do not arise out of the same transaction, occurrence, or series of transactions or occurrences. Plaintiffs have sued for breaches of five separate contracts executed by separate individuals at separate times. See Harris, 150 F.R.D. at 131. The breaches arise from Hanover's failure to pay damages resulting from three separate fires. There is no indication that its failure to pay these claims was the result of some common policy. Byers v. Ill. State Police, No. 99-C-8105, 2000 WL 1808558, at *3 (N.D. Ill. Dec. 6, 2000); Randleel v. Pizza Hut of Am., Inc., 182 F.R.D. 542, 544 (N.D. Ill. 1998). Because plaintiffs are misjoined, the Court will sever these actions for purposes of ...


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