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Grinnell Mutual Reinsurance Co. v. Timmermann

February 2, 2009


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



Before the Court is Plaintiff's Amended Motion for Summary Judgment (Doc. 46) and supporting memorandum (Doc. 47). An opposing Response (Doc. 48) has been filed by defendants Paul and Veronica Timmermann, as well as an opposing Response (Doc. 51) and supporting memorandum (Doc. 52) filed by defendants Kurt, Lisa and Jordan Timmermann. Plaintiff has filed separate Replies (Docs. 50 & 53) to each of these Responses.

Plaintiff Grinnel Mutual Reinsurance Company ("Grinnell") brought a two-count declaratory judgment action (Doc. 2) against all Defendants on the basis of diversity jurisdiction, asserting that there is no coverage for any liability of defendants Paul and Veronica Timmermann, who are named insureds in a Grinnell Mutual Reinsurance Company Farm-Guard Policy No. 01Z-252 (the "Farm-Guard Policy") and in an expired Personal Excess Policy No. 0026027790 (the "Excess Policy").

Paul and Veronica Timmermann, husband and wife, are defendants in a lawsuit filed in the Circuit Court of the Fourth Judicial Circuit, Clinton County, Illinois, Case No. 06-L-031, entitled: Lisa Lynn Timmermann and Kurt James Timmermann, Individually and as Parents and Next Friends of Jordan Michael Timmermann, a Minor v. Paul Timmermann and Veronica Timmermann (hereinafter the "Underlying Suit"). The Underlying Suit seeks damages for injuries suffered by Jordan Timmermann, a minor, occurring on or about December 5, 2004. Kurt James Timmermann is the son of Paul and Veronica Timmermann. Jordan Michael Timmermann, Kurt's son, is their grandson. Paul and Veronica Timmermann own a farm in Clinton County, Illinois. Both Kurt and his son, Jordan, worked the farm. On December 5, 2004, Jordan was injured working on his grandparents' farm. The Underlying Suit followed.

Paul and Veronica Timmermann tendered the defense of the Underlying Suit to Grinnell. Grinnell is currently defending both Paul and Veronica Timmermann in the Underlying Suit but believes that neither the Farm-Guard nor the Excess Policy provides liability coverage and thus, Grinnell further believes it has no duty to defend nor indemnify Paul and Veronica Timmermann.*fn1 The Court, in reviewing the Parties' briefs and the record, as well as analyzing the pertinent case law, finds that summary judgment is not warranted.


A. Summary Judgment

Summary judgment is proper where the pleadings and affidavits, if any, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c); Oats v. Discovery Zone, 116 F.3d 1161, 1165 (7th Cir. 1997) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The movant bears the burden of establishing the absence of fact issues and entitlement to judgment as a matter of law. Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997) (citing Celotex, 477 U.S. at 323). In reviewing a summary judgment motion, this Court does not determine the truth of asserted matters, but rather decides whether there is a genuine factual issue for trial. Celex Group, Inc. v. Executive Gallery, Inc., 877 F. Supp. 1114, 1124 (N.D. Ill. 1995). This Court must consider the entire record, drawing reasonable inferences and resolving factual disputes in favor of the non-movant. Regensburger v. China Adoption Consultants, Ltd., 138 F.3d 1201, 1205 (7th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).

In response to a motion for summary judgment, the non-movant may not simply rest on the allegations in his pleadings; rather, he must show through specific evidence that an issue of fact remains on matters for which he bears the burden of proof at trial. Walker v. Shansky, 28 F.3d 666, 670-71 (7th Cir. 1994), aff'd, 51 F.3d 276 (citing Celotex, 477 U.S. at 324). No issue remains for trial "unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted); accordStarzenski v. City of Elkhart, 87 F.3d 872, 880 (7th Cir. 1996); Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994).

B. Analysis

Grinnell moves for summary judgment on both Counts of its suit for declaratory judgment. It bases its Motion on two grounds: (1) the Excess Policy issued to Paul and Veronica Timmermann was not in effect at the time of Jordan Timmermann's injury on December 5, 2004 as it had expired on August 15, 2004; and (2) the Farm-Guard Policy excludes liability coverage for a bodily injury suffered by an "insured person" and Jordan Timmermann ultimately falls within the definition of an "insured person." Because neither of Defendants' Responses contest the assertion that the Excess Policy was not in effect on December 5, 2004 and thus, does not provide liability coverage for the Underlying Suit, the Court finds Grinnell entitled to summary judgment in this regard. However, all Defendants contest the assertion that the Farm-Guard Policy does not provide liability coverage and so the Court's analysis will center on this issue.

1. The Farm-Guard Exclusions and Definitions

Under the Exclusions section of the Farm-Guard Policy, paragraph 17 reads as follows: "We" do not cover "bodily injury" to any "insured person" (Doc. 48, Ex. A, p. 6, ¶ 17). The Farm-Guard Policy defines "We" as "the Company providing this insurance," which is Grinnell (Id. at p. 1, ¶ 2). Among the several definitions for "Insured person" are: "you" and "a person living with 'you' and related to 'you' by blood, marriage or adoption" (Id. at p. 2, ¶ 9(a) & (b)). "You" has several definitions, two of which are: "the insured named in the Declarations and spouse if ...

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