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Shelter General Insurance Co. v. Zurich Direct

September 30, 2008


The opinion of the court was delivered by: Herndon, Chief Judge



Before the Court is defendant Zurich Direct f/k/a Universal Underwriters Group's ("Universal") Motion for Summary Judgment (Doc. 22). In Response, plaintiff Shelter General Insurance Company ("Shelter") opposes Universal's arguments and also makes a Cross-Motion for Summary Judgment (Docs. 24 & 26). Also pending before the Court are two separate Motions for Oral Argument on the above-referenced summary judgment motions, filed by Shelter and Universal, respectively (Docs. 25 & 33). Although requested by the Parties, the Court finds no need for oral argument in this case, as the facts and legal arguments have been sufficiently briefed, allowing for the Court to make its ruling herein without additional advocacy from counsel.*fn1 As such, the Court denies the Motions for Oral Argument (Docs. 25 & 33). The issue presented before the Court is whether the Illinois "targeted tender" doctrine is applicable to the facts of this case in order to absolve Defendant of its duty to defend in the underlying suit. As discussed herein, the Court finds it is not.


The uncontroverted facts reveal that on or about April 8, 2005, Larry Baggot ("Baggott") was involved in a motor vehicle accident ("the accident") with Shana Harner and Brian Harner. Baggott was driving a 2004 Pontiac Grand Prix, owned by Kathy McLaughlin ("McLaughlin"). At the time, Baggott was an employee at Foley Sweitzer Motor Sales, Inc. ("Foley Sweitzer"). McLaughlin was a customer of Foley Sweitzer. It is undisputed that while driving McLaughlin's automobile, Baggott was acting within the scope of his employment at Foley Sweitzer.

Following the accident, Shana Harner and her husband, Brian Harner, filed a personal injury suit against Baggot in the Circuit Court of Williamson County, Illinois (the "underlying suit"). Baggot was served with a copy of the Harners' complaint on or about April 16, 2006. The Harners subsequently amended their complaint to add Foley Sweitzer as a defendant, as Baggott's employer. Foley Sweitzer was served with the Harners' amended complaint on April 10, 2007.

McLaughlin's vehicle was insured by an automobile liability policy issued to her by Shelter. This policy was in effect at the time of the accident. Also at the time, Foley Sweitzer was insured under a garage operations and auto hazard policy, issued by Universal. Soon after Baggott was involved in the accident, he informed the Foley Sweitzer's business coordinator, Donna Samples. As was the standard procedure when a Foley Sweitzer employee was involved in an accident within the scope of his employment, she filled out the proper claim documentation to Universal. Samples stated during her deposition that on April 13, 2005, she received correspondence from Universal, indicating that they had received Foley Sweitzer's claim and assigned it a claim number. The claim was for potential reimbursement for fixing the minor damage caused to McLaughlin's automobile, driven by Baggott at the time of the accident.

Nearly a year later, in April 2006, Baggott was served with the Harners' complaint in the underlying suit. Baggott gave Samples a copy of the complaint. Samples testified that she then notified James Sweitzer, the General Manager of Foley Sweitzer and Universal, regarding the underlying suit. She also sent a copy of the complaint to Universal. Samples received Universal's faxed acknowledgment of the underlying suit, dated April 25, 2006. It is also undisputed that Shelter was notified about the underlying suit, as it involved McLaughlin's automobile. Shelter retained counsel to defend Baggott. When Foley Sweitzer was served with the Harners' amended complaint in April 2007, it, it forwarded a copy to Universal. Shelter also retained counsel to defend Foley Sweitzer in the underlying suit.

In July 2007, Shelter filed a declaratory judgment suit with this Court, on the basis of diversity jurisdiction. 28 U.S.C. § 1332. According to Plaintiff's allegations, Universal has refused to defend Foley Sweitzer and Baggott in the underlying suit. Conversely, Universal argues that neither Foley Sweitzer nor Baggott ever made a demand upon Universal to defend in the underlying suit. In support. Universal submits a copy of a letter from Foley Sweitzer to Shelter, signed by both Baggott and James Sweitzer (as representative of Foley Sweitzer).The letter, hereinafter called the "Targeted Tender Letter," states, in pertinent part:

Kathy McLaughlin owned the vehicle that Mr. Baggott was driving when he was involved in the accident. Ms. McLaughlin had a liability insurance policy from Shelter Insurance. Shelter has agreed to defend and indemnify (up to the policy limits, of course) the defendants in the Litigation.

Mr. Baggott and Foley-Sweitzer Motors have notified Foley-Sweitzer Motors insurer of the Litigation and we have given them authority to delegate the defense in the Litigation to Shelter Insurance. We understand that they have done so and accept their decision to delegate the defense in the Litigation to Shelter Insurance. However Foley-Sweitzer Motors insurer will be responsible for any settlement or judgment in excess of Ms. McLaughlin's policy limits with Shelter Insurance as we are not waiving or giving up any of our rights as to indemnification in excess of Shelter Insurance's indemnification limits. (Doc. 24, Ex. E.)

Universal claims this letter evidences Baggott and Foley Sweitzer's targeted tender of their defense to Shelter, as well as their decision not to seek defense under their insurance policy from Universal. Thus, Universal believes that it maintains no duty to defend either Baggott or Foley Sweitzer in the underlying suit and should not be required to share in the defense costs with Shelter. Universal has moved for summary judgment based on this argument, as well as the argument that the issues in Shelter's declaratory judgment action are not yet ripe. Shelter, in response, moves for cross summary judgment, arguing that this matter is ripe for adjudication. Further, Shelter argues that the targeted tender was invalid and even if there were valid, it violates Illinois public policy.


A. Legal ...

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