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Perez v. AMCO Insurance Co.

April 20, 2010

VICTOR G. PEREZ, PLAINTIFF,
v.
AMCO INSURANCE COMPANY, NATIONWIDE PROPERTY & CASUALTY INSURANCE COMPANY, AND ALLIED PROPERTY & CASUALTY INSURANCE COMPANY, DEFENDANTS.



The opinion of the court was delivered by: Robert M. Dow, Jr. United States District Judge

Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Before the Court is Defendants' motion to dismiss Counts II and III of Plaintiff's First Amended Complaint [78]. For the reasons set forth below, Defendants' motion is denied.

I. Background*fn1

Plaintiff, Victor G. Perez ("Perez"), is the former sole-shareholder and current assignee of a now-defunct commercial printing business called Pinata Graphics, Inc. ("Pinata"). Plaintiff filed his complaint (see [1-2]) on June 30, 2008 in the Circuit Court of Cook County. Defendants removed the action to this Court [1] pursuant to 28 U.S.C. § 1441, and subsequently filed a motion to dismiss [7], which the Court granted in part and denied in part [43]. Plaintiff then filed his FirstAmended Complaint ("FAC") [72]; a few weeks later, Defendants filed the instant motion to dismiss [78].

All of the Defendants are insurance companies: AMCO Insurance Company ("AMCO"), Nationwide Property & Casualty Insurance Company ("Nationwide"), and Allied Insurance Company ("Allied"). Plaintiff states that Nationwide and Allied are both "affiliated" with AMCO and that both "provide[] claims adjustment services for claims brought by policyholders of AMCO." FAC ¶¶ 5-6. All three Defendants' names appear on the first page of the insurance policy that is at the heart of this case. See [1-2] at 25.*fn2

AMCO issued an insurance policy to Pinata and Plaintiff (FAC ¶¶ 7-10), the details of which are laid out in the complaint (id. ¶¶ 13-16), but which are not at issue for purposes of Defendants' motion to dismiss. The policy covered not only property, including Pinata's Ryobi 685 XL S/N 1084 printing press with Aqueous/U.V. Coater System ("the Press"), but also lost income. See id. ¶¶ 15,17.

The Press was "state of the art" and during the four year period from 2001 to 2005, Pinata enjoyed a growth in its business income. FAC ¶ 20. In 2005, the Press sustained a cracked frame as a result of an accident covered by the insurance policy. Plaintiff gave notice of the crack to AMCO, which in turn gave notice to Nationwide and Allied. One or more of the Defendants "retained adjusters, investigators and accountants to investigate the damage to the * * * Press and the loss of business income sustained as a result of the cracked frame property loss." Id. ¶¶ 21-23. One or more of the Defendants also gave notice of the cracked frame to Hartford Steam Boiler Inspection and Insurance Company ("Hartford"), whom Plaintiff alleges was AMCO's reinsurer. Hartford in turn retained Louis Benbow to investigate and supervise the repair of the press. Id. ¶¶ 25-29. To summarize: Plaintiff alleges that AMCO issued the insurance policy; that AMCO is "affiliated" with Nationwide and Allied; that Hartford is the agent of one (or more) of the three; and that Benbow is the agent of Hartford (and the sub-agent of AMCO, Nationwide, and/or Allied). See also id. ¶¶ 29-30.

Plaintiff alleges that Benbow assumed control over the repairs of the Press (FAC ¶ 33) but refused to authorize necessary repairs proposed by the manufacturer of the press ("Ryobi") and the manufacturer's representative ("American Pro Tec"), which would have amounted to about $250,000. See id. ¶ 32. Instead, Benbow only approved far-less-costly temporary repairs, resulting in slowdowns and lost income for Plaintiff. See id. ¶¶ 34-43.

On or about July 22, 2006, there was a fire inside the press, which Plaintiff alleges was caused when paper "bec[a]me trapped in the drying/curing system of the machine during use and operation authorized by * * * Benbow." FAC ¶ 44 (emphasis added). At that point, one or more of the Defendants authorized the costly permanent repairs for the cracked frame as well as repairs for the fire damage. Id. ¶¶ 51-52. However, Defendants' accountants and Pinata disagreed over Pinata's loss of business claim related to the fire. Pinata ultimately contended that the fire caused lost business income of about $1.5 million. Id. ¶¶ 59, 65. Defendants' accountants placed the number at about $139,000. Id. ¶¶ 64, 71.

On April 26, 2007, Pinata dissolved; before doing so, the company assigned to Plaintiff any claims that it had against the Defendants. Id. at 74-75. Plaintiff's complaint comprises three counts: Count I -- Breach of Contract (against AMCO alone); Count II -- Negligence (against all Defendants); and Count III -- Vexatious and Unreasonable Delay (against all Defendants). In November of 2007, Pinata entered an agreement ("the Settlement") settling its claim for lost business income and extra expenses arising from the cracked frame loss and releasing Defendants from "any and all claims resulting from the cracked frame property loss, while reserving any and all claims for damages caused by the fire loss." Id. ¶ 69.

In this lawsuit, Plaintiff seeks recovery for losses associated with the fire, as well as damages pursuant to 215 ILCS 5/155for vexatious and unreasonable delay in settling a claim. Id. ¶¶ 78-79, 161-165. Defendants' motion seeks dismissal of Counts II and III in their entirety. In general, Defendants maintain that Count II is barred either by the Settlement or by this Court's prior order [43], and that it fails to plead breach of contract by Defendants. Defendants maintain that the claim set forth in Count III is barred by the Settlement.

II. Legal Standard on Motion to Dismiss

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint, not the merits of the case. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief" (Fed. R. Civ. P. 8(a)(2)), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 127 S.Ct. at 1965, 1973 n. 14). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts ...


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