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American Safety Casualty Insurance Co. v. City of Waukegan

March 30, 2009

AMERICAN SAFETY CASUALTY INSURANCE COMPANY AND SCOTTSDALE INSURANCE COMPANY, PLAINTIFFS,
v.
CITY OF WAUKEGAN, DEFENDANT.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Both Scottsdale Insurance Company ("Scottsdale") and American Safety Casualty Insurance Company ("American Safety") filed Complaints for Declaratory Judgment against the City of Waukegan ("Waukegan") on January 8, 2007 and April 11, 2007, respectively, seeking declarations that they did not owe coverage to Waukegan for its loss stemming from the lawsuit S. Alejandro Dominguez v. Paul Hendley et. al., No. 04 C 2907 (the "Domiguez case"). Scottsdale's Complaint sought a declaration that it did not owe coverage under three Comprehensive Law Enforcement Policies it issued to Waukegan that covered the time period from November 1988 through November 1991. This Court consolidated the two cases on January 3, 2008. Thereafter, on March 20, 2008 Waukegan joined Interstate Indemnity Company, Lloyds of London, Northman Insurance Companies, Corgis Insurance Organizations, Evanston Insurance Company, Domiguez, and Paul Hendley as Counter-Defendants. On May 19, 2008, far ahead of this Court's dispositive motion schedule, Scottsdale filed a Motion for Summary Judgment, and it thereafter filed a Motion to Strike the City of Waukegan's Affidavits and Supporting Documents to the City's Statement of Additional Facts Pursuant to Rule 37, and to Strike Improper Argument and Conclusions in the City's Statement of Additional Facts. For the reasons stated below, this Court grants Scottsdale's Motion for Summary Judgment and grants in part and denies in part Scottsdale's Motion to Strike.

STATEMENT OF FACTS

Scottsdale issued three comprehensive Law Enforcement Liability policies to the City of Waukegan Police Department: Number PL 811010, effective from November 1, 1988 to November 1, 1989; Number PL 911489, effective from November 1, 1989 to November 1, 1990; and Number PL 111427, effective from November 1, 1990 to November 1, 1991. Scottsdale 56.1 at 5-7.*fn1 Each of these policies had a one million dollar limit for each person and each occurrence, and Waukegan was an additional insured on the policies. Id. Each of the policies contained the following "Insuring Agreement":

The Company will pay on behalf of the INSURED all sums which the INSURED shall become legally obligated to pay as damages because of WRONGFUL ACT(S) which result in:

A) PERSONAL INJURY

B) BODILY INJURY

C) PROPERTY DAMAGE caused by an OCCURRENCE and arising out the performance of the INSURED'S duties to provide law enforcement and/or other departmentally approved activities as declared in the Application, or arising out of the ownership, maintenance or use of the premises designated in the Declarations (including the ways immediately adjoining such premises on land), and all other operations necessary and incidental thereto.

Waukegan 56.1 at 2. Each of the policies also contained the following provision:

4. INSURED'S DUTIES IN THE EVENT OF OCCURRENCE, CLAIM OR SUIT

(a) In the event of an occurrence, written notice containing the particulars sufficient to identify the INSURED and also to reasonably obtain information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the INSURED to the Company or any of its authorized agents as soon as practicable.

(b) If a claim is made or a suit is brought against the INSURED, the INSURED shall immediately forward to the Company every demand, notice, summons or other process received by him or his representative.

Scottsdale 56.1 at 8.

S. Alejandro Domiguez ("Domiguez") filed suit against Waukegan and several of its police officers in the Northern District of Illinois on April 23, 2004, alleging claims of false arrest (Count I), malicious prosecution (Count II), and deprivation of constitutional rights (Count III) under 42 U.S.C. § 1983. Id. 56.1 at 9, 11. Domiguez amended his Complaint on August 2, 2004 to add state law claims for malicious prosecution (Count IV), intentional infliction of emotional distress (Count V), and a claim for indemnification (Count VII). Id. at 12. Specifically, Domiguez alleged that he was arrested by Waukegan police officers on September 21, 1989 and charged with two counts of aggravated sexual assault and one count of home invasion arising from an incident on September 19, 1989. Id. at 10. He was convicted of home invasion and aggravated sexual assault and sent to prison. Id. Years later, however, a post-conviction DNA test excluded him as the rapist, and on April 26, 2002, his convictions were vacated and he was found not guilty. Id.

The Waukegan Police Department received a "Notice of Lawsuit and Request for Waiver of Service of Summons" related to the Domiguez case on May 28, 2004 with a return date for the City's Answer of July 28, 2004. Id. at 13; Waukegan 56.1 at 5. Linda Ford ("Ford"), Waukegan's benefits administrator, received a copy of Domiguez's Complaint in June of 2004. Waukegan 56.1 at 6. Ford searched for applicable insurance policies and forwarded them to Marianne Veltri ("Veltri"), the claims manager at Custard Insurance Adjusters/Custard Claims Management Services ("Custard") and asked her to put the relevant carriers on notice of the claim. Id. at 7. Veltri began providing notice of the Complaint to Waukegan's primary and excess insurance carriers who provided coverage between 1988 and 2004 in July of 2004 and provided over a dozen notices to various carriers, brokers and agents. Id. at 9.

Ford told Veltri that the City's insurance carrier between November 1988 and November 1991 was International Special Risk Services ("International") and Veltri notified International of the Domiguez complaint on September 15, 2004. Id. at 10-11. About 9 months later, however, after having heard nothing from International, its agents contacted Veltri to tell her that she had sent the notice to the wrong address. Id. at 11. In an attempt to follow up on the information she received from International, Veltri contacted Michael McHugh ("McHugh") of Arthur J. Gallagher Risk Management Services ("AJG"), who had sold insurance policies to the city between 1988 and 1991. Id. at 12.

Veltri asked whether AJG would be the correct party for service of notice, since it sold the policies to the city. Id. Rich Stkluska of AJG advised Ford to notify Cynthia Shafer at International of the lawsuit, and Ford forwarded this information to Veltri. Id. at 14. From September 2004 until the time of trial, Veltri attempted to identify a claims ...


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