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Nautilus Insurance Co. v. Filmar

June 9, 2009

NAUTILUS INSURANCE COMPANY, PLAINTIFF,
v.
FILMAR, INC. OF CHICAGO, ETC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge

MEMORANDUM OPINION AND ORDER

Nautilus Insurance Company ("Nautilus") has filed a declaratory judgment action--now represented by its Amended Complaint for Declaratory Judgment ("AC")--for these purposes stated in its prayer for relief:

A. That this Court determine and adjudicate the rights and liabilities of the parties hereto with respect to the Nautilus Policy.

B. That this Court find and declare that the Nautilus Policy does not potentially or actually cover any portion of the claims against Scott in the Clark Lawsuit.

C. That this Court find and declare that Nautilus has no duty to defend Scott in connection with the Clark Lawsuit.

D. That this Court grant such other and further relied [sic - should be "relief"] as it deems proper under the evidence and circumstances.

As for the abbreviated terms in that prayer, which this memorandum opinion and order will also employ:

1. "Nautilus Policy" is Policy No. NC184464 (AC Ex. D), issued by Nautilus to Filmar, Inc. of Chicago ("Filmar") and covering a policy period from August 7, 2003 to August 7, 2004. As a matter of convenience, this opinion will refer to the Nautilus Policy as simply the "Policy" (there being no other insurance policy involved in this litigation).

2. "Scott" is Randy Scott.

3. "Clark Lawsuit" is Circuit Court of Cook County, Illinois Case No. 08 L 003397 brought by Brinkley Clark ("Clark") against Scott and Filmar.

Nautilus and Clark have now filed Fed. R. Civ. P. 56 cross-motions for summary judgment (Scott, who is serving an 18-year prison term resulting from his conviction for the attempted murder of Clark, has defaulted, while Filmar has appeared and answered but is essentially a bystander in connection with the current cross-motions). Following the completion of the briefing on the cross-motions, Clark has also cited and furnished a copy of additional authority--the very recent opinion of the Illinois Appellate Court for the First District in Country Mut. Ins. Co. v. Olsak, 2000 WL 1361596 (1st Dist. May 13)--in claimed support of his position.

Even though the cross-submissions address several issues and are thus somewhat bulky, analysis reveals the case to be a simple one. Though the parties cross swords over whether Scott was insured under the Policy at all, for present purposes he can surely be viewed either as a Filmar "employee" or at worst a "voluntary worker"--in either case enough to bring him within the Policy's Section II definition of "insured." Nor is there any need to parse the Policy's definition of "occurrence," which the Policy's Commercial General Liability Coverage Form ("Form," which is the relevant part of the Policy for purposes of this litigation) Section ¶13 defines as "an accident" (in that respect, Nautilus contends persuasively that the "accident" concept cannot apply to Scott's intentional stabbing of Clark, which is the gravamen of the Clark Lawsuit and also led to Scott's conviction for attempted first-degree murder).

Instead the absence of coverage that is most cogently urged by Nautilus stems from this express exclusion ...


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