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American Automobile Insurance Company, A Missouri Corporation v. B.D. Mcclure and Associates

January 21, 2010


The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge:


On March 13, 2009, Plaintiff American Automobile Insurance Company ("American Automobile") originally filed this lawsuit, and on June 30, 2010, American Automobile filed the present two-count Third Amended Complaint for Declaratory Judgment against Defendants B.D. McClure and Associates, Ltd., Brian McClure (collectively "McClure Associates"), and Dale Sippel d/b/a Genie Temporary Services (collectively "Genie") based on the Court's diversity jurisdiction. See 28 U.S.C. § 1332(a)(1). Also on June 30, 2010, McClure Associates filed a three-count First Amended Counterclaim for Declaratory Judgment seeking coverage under the relevant insurance policies. McClure Associates raised two additional claims, including a claim for improper claim practices and a claim for damages for vexatious and unreasonable delay both pursuant to 215 ILCS 5/155. On July 12, 2010, Genie filed its Answer to American Automobile's Third Amended Complaint and Counterclaim for Declaratory Judgment seeking coverage under the relevant insurance policies.

Before the Court is American Automobile's Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56(c). For the following reasons, the Court grants American Automobile's motion as to both Counts I and II of its Third Amended Complaint for Declaratory Judgment. Because the Court grants American Automobile's summary judgment motion as to its declaratory judgment claims, the Court dismisses with prejudice McClure Associates' counterclaim based on the insurance coverage (Count I) and Genie's similar counterclaim for declaratory judgment. Furthermore, because there was a bona fide dispute concerning insurance coverage under the relevant insurance policies, the Court dismisses McClure Associates' counterclaims for improper claim practices (Count II) and vexatious and unreasonable delay (Count III) as a matter of law. Accordingly, the Court dismisses this lawsuit in its entirety.


I. Northern District of Illinois Local Rule 56.1

Northern District of Illinois Local Rule 56.1 assists the Court by "organizing the evidence, identifying undisputed facts, and demonstrating precisely how each side propose[s] to prove a disputed fact with admissible evidence." Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 527 (7th Cir. 2000). Local Rule 56.1(a)(3) requires the moving party to provide "a statement of material facts as to which the moving party contends there is no genuine issue." Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009). "The opposing party is required to file 'a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon." Id. (citing N.D. Ill. R. 56.1(b)(3)(B)). Also, Local Rule 56.1(b)(3)(C) requires the nonmoving party to present a separate statement of additional facts that require the denial of summary judgment. See Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643-44 (7th Cir. 2008).

The purpose of Rule 56.1 statements is to identify the relevant admissible evidence supporting the material facts, not to make factual or legal arguments. See Cady v. Sheahan, 467 F.3d 1057, 1060 (7th Cir. 2006) ("statement of material facts did [] not comply with Rule 56.1 as it failed to adequately cite the record and was filled with irrelevant information, legal arguments, and conjecture"). The Court may disregard statements and responses that do not properly cite to the record. See Cichon, 401 F.3d at 809-10; see also Raymond v. Ameritech Corp., 442 F.3d 600, 604 (7th Cir. 2006) ("district courts are entitled to expect strict compliance with Local Rule 56.1"). Moreover, it is well-established that courts may only consider admissible evidence in determining motions for summary judgment. See Berry v. Chicago Transit Auth., 618 F.3d 688, 690-91 (7th Cir. 2010); Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009). Finally, allegations made in a complaint are not evidence for summary judgment purposes. See Nisenbaum v. Milwaukee County, 333 F.3d 804, 810 (7th Cir. 2003) ("Allegations in a complaint are not evidence"); see also Tibbs v. City of Chicago, 469 F.3d 661, 663 n.2 (7th Cir. 2006). With these standards in mind, the Court turns to the relevant facts of this case.

II. Relevant Facts

American Automobile is a Missouri corporation with its principal place of business in Missouri. (R. 88, Pl.'s Rule 56.1 Stmt. Facts ¶ 1.) McClure Associates is an Illinois corporation with its principal place of business in Lisle, Illinois. (Id. ¶ 2.) Brian McClure is a citizen of the State of Illinois. (Id. ¶ 3.) Genie, a division of J.E.S. Personnel Consultants, Inc., is a Delaware corporation with its principal place of business in Joliet, Illinois. (Id. ¶ 4.) Dale Sippel is a citizen of the State of Florida. (Id. ¶ 5.)

McClure is a licensed insurance broker in the State of Illinois and the owner and agent of McClure Associates. (Id. ¶ 8.) In late 2005, McClure Associates began soliciting and selling workers' compensation coverage to employers under a program of insurance offered by Administrative Employers Group ("AEG"), a professional employer association. (Id. ¶¶ 9, 10.) McClure Associates stopped selling AEG insurance in or about May 2007. (Id. ¶ 11.) On July 5, 2007, the Illinois Department of Financial and Professional Regulation, Division of Insurance, entered a Cease and Desist Order prohibiting McClure Associates from soliciting and selling AEG insurance. (Id. ¶ 12.) On April 21, 2008, the Circuit Court of Cook County, Illinois entered an order of liquidation with a finding of insolvency against AEG. (Id. ¶ 15.)

On or about June 1, 2007, McClure Associates enrolled in American Automobile's "Insurance Agent Errors and Omissions" policy that provided coverage for the period of June 1, 2007 until June 1, 2008. (R. 100, Defs.' Rule 56.1 Stmt. Add'l Facts ¶ 2; Pl.'s Stmt. Facts ¶¶ 26,27.) American Automobile also insured McClure Associates under two renewal policies -- one from the period of June 1, 2008 until June 2, 2009 and the other from June 1, 2009 to June 1, 2010. (Pl.'s Stmt. Facts ¶ 28.) On February 19, 2008, McClure Associates notified American Automobile that it had begun to pay workers' compensation claims out of its own pocket as they were tendered to McClure Associates for coverage. (Defs.' Stmt. Add'l Facts ¶ 11.) McClure Associates, however, did not have a contractual obligation with any of its clients to pay their claims directly in the event that AEG became insolvent. (Pl.'s Stmt. Facts ¶ 17.) Although American Automobile never gave McClure Associates permission to pay the AEG claims directly, McClure Associates tendered the workers' compensation claims to mitigate any legal damages. (Id. ¶ 19; Defs.' Stmt. Add'l Facts ¶ 15.)

On September 21, 2009, Genie filed a lawsuit against McClure Associates in the Circuit Court of the Twelfth Judicial Circuit, Will County, Illinois, Case No. 09 L 800. (Pl.'s Stmt. Facts ¶ 20.) According to the state court complaint, McClure Associates was Genie's exclusive insurance broker for workers' compensation coverage in 2006 and placed Genie's workers' compensation insurance with AEG. (Id. ¶ 22.) Genie claims that in 2008 it discovered that it did not have valid workers' compensation insurance and that AEG was not an authorized, licensed, or permitted insurance carrier in Illinois. (Id. ¶ 23.) The state court complaint specifically alleges two causes of action against McClure Associates: (1) a claim for professional negligence; and (2) a claim under the Illinois Consumer Fraud and Deceptive Practices Act, 815 ILCS 505/1, et seq. (Id. ¶ 24.) In the state court lawsuit, Genie seeks compensatory damages for the expenses that it incurred or will incur as a result of McClure Associates' placement of Genie's coverage with AEG and AEG's inability to pay those claims directly. (Id. ¶ 25.) On December 8, 2009, McClure and McClure Associates sent a notice to American Automobile that they intended to defend themselves in the state court action. (Defs.' Stmt. Add'l Facts ¶ 13.)


Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2). A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). In determining summary judgment motions, "facts must be viewed in the light most favorable to the nonmoving party only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

The party seeking summary judgment has the burden of establishing the lack of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). After "a properly supported motion for summary judgment is made, the adverse party 'must set forth specific facts showing that there is a genuine issue for trial.'" Anderson, 477 U.S. at 255 ...

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