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Werner v. Group Health Plan

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ILLINOIS


October 8, 2010

DALE WERNER, PLAINTIFF,
v.
GROUP HEALTH PLAN, INC., A COVENTRY HEALTH CARE PLAN, AND CASSENS INSURANCE AGENCY, INC., DEFENDANT.

The opinion of the court was delivered by: J. Phil Gilbert District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on Plaintiff Dale Werner's Motion to Voluntarily Dismiss (Doc. 63). Specifically, Werner seeks to dismiss Count V of the second Amended Complaint (Doc. 50), which seeks attorneys' fees and costs pursuant to Section 155 the Illinois Insurance Code, 215 ILL. COMP. STAT. ANN. 5/155 (West 2010). In essence, Werner concedes the merits of Defendant Group Health Plan, Inc.'s ("Group Health") pending Motion to Dismiss (Doc. 55) pursuant to Federal Rule of Procedure 12(b)(6).

Typically, to voluntarily dispose of only some claims against a defendant, one should file an amended complaint rather than a motion for voluntary dismissal. 8 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 41.21[2] (3d ed. 2009). However, in light of Group Health's agreement with the relief requested, as best evidenced by its own dismissal motion,*fn1 this case proves to be the exception to the rule.

Being fully advised of the premises, the Court GRANTS the instant motion (Doc. 63), whereby the Court DISMISSES Count V, seeking attorneys' fees and costs pursuant to Section 155 of the Illinois Insurance Code, with prejudice. Further, the Court DENIES as moot Group Health's Motion to Dismiss (Doc. 55). Finally, the Court DIRECTS the Clerk of Court to enter judgment accordingly at the close of this case.

IT IS SO ORDERED.


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