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Burlington Insurance Co. v. Barefield

October 28, 2010

THE BURLINGTON INSURANCE COMPANY, PLAINTIFF,
v.
ROBERT BAREFIELD AND SHANTA MAGEE AS CO-SPECIAL ADMINISTRATORS OF THE ESTATE OF ROBERT BAREFIELD II, DECEASED, AND ONE STOP LIQUOR & BAR A/K/A/ A&R LIQUORS, INC., GP L.L.C., DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

On August 27, 2009, The Burlington Insurance Company filed a complaint with this Court, seeking declaratory judgment that its commercial, general-liability policy does not provide coverage for the matters alleged in a separate lawsuit, which is pending in the Twelfth Judicial Circuit of Will County. It also sought declaratory judgment that it is neither obligated to furnish a defense to One Stop Liquor and Bar nor is it required to pay any judgment entered in that case. (R. 1.) The Court granted default judgment in Burlington's favor against Defendant One Stop Liquor and Bar on May 11, 2010, but declined to grant such judgment against Defendants Robert Barefield and Shanta Magee because, unlike One Stop, they had answered the complaint. (R. 29.) Burlington now moves for summary judgment against Barefield and Magee, arguing that the discovery taken in the case, coupled with the Court's prior entry of default judgment against One Stop, demonstrates that it is entitled to declaratory judgment. For the following reasons, the Court's grants Burlington's motion for summary judgment.

BACKGROUND

I. Northern District of Illinois Local Rule 56.1

Plaintiff, Burlington, timely filed its Local Rule 56.1 statement of undisputed facts in support of its motion for summary judgment. (R. 62.) Defendants, however, failed to abide by Local Rule 56.1(b), which requires each party opposing a motion filed pursuant to Fed. R. Civ. P. 56 to serve and file a response to the movant's Rule 56.1 statement. N.D. Ill. L.R. 56.1(b). When determining summary-judgment motions, the Court derives the background facts from the parties' Local Rule 56.1 statements. Specifically, 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. L.R. 56.1(b)(3)(B)). In addition, Local Rule 56.1(b)(3)(C) requires the nonmoving party to present a separate statement of any additional facts that require the denial of summary judgment. See Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643-44 (7th Cir. 2008).

Defendants have failed to file a proper Rule 56.1(b)(3)(B) response to Plaintiff's Rule 56.1(a)(3) statement of facts. The Court therefore deems Plaintiff's supported factual assertions to be admitted. See Rao v. BP Prods. N. Am., Inc., 589 F.3d 389, 393 (7th Cir. 2009); N.D. Ill. L.R. 56.1(b)(3)(C) ("All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party."); see also Raymond v. Ameritech Corp., 442 F.3d 600, 604 (7th Cir. 2006) ("[D]istrict courts are entitled to expect strict compliance with Local Rule 56.1.").

II. Relevant Facts

Accepting Burlington's Rule 56.1 statement of facts as true, the relevant background is as follows: Defendant One Stop Liquor is a liquor business establishment in the city of Lockport, Illinois. (R. 62 at 1.) On August 21, 2007, the owner of One Stop Liquor, Andrea Abdelghani, completed an application for insurance with Plaintiff Burlington that would incept on September 1, 2007. (Id. at 5.) Ms. Abdelghani knew that she had no coverage in place on the day she completed that particular insurance application. (Id.) On August 26, 2007, One Stop Liquor bore witness to a shooting in which Robert Barefield, II, a person under the age of 21, was killed. (Id. at 4). Either one or two days later, One Stop Liquor suffered damage from a fire, which was started in retaliation for the shooting in which Robert Barefield, II was killed. (Id. at 4, 6.)

Ms. Abdelghani learned of these events on August 28, 2007. (Id. at 5.) Knowing that she had no coverage for either event, on August 29, 2007, Ms. Abdelghani requested that Burlington backdate the effective backdate of the policy that was to become effective on September 1, 2007, to August 21, 2007. (Id. at 1, 5). In support of her request, she explained that the policy had to be backdated because the Will County Liquor Commission required the policy. (Id. at 5.) When asked, Ms. Abdelghani specifically denied that One Stop Liquor had any losses, and explained that the sole reason for the change in effective date was to satisfy Will County Liquor Commission requirements. (Id. at 5-6.) Based on those representations, Burlington backdated the coverage to August 21, 2007.

In August 2008, Robert Barefield and Shanta Magee, co-special administrators of Robert Barefield II's estate, filed a state-court, civil lawsuit against One Stop Liquor, seeking damages for Robert's death on August 26, 2007. (R. 1 at ¶ 17.) The complaint sought recovery pursuant to five counts, which consisted of negligence, wrongful death, survival, the recovery of funeral, burial, and medical expenses, and a Dram Shop claim. (R. 62 at 4.) Barefield and Magee sought coverage for their complaint under the policy Burlington issued to One Stop Liquor. (Id. at 5.) Burlington denied coverage. (Id.)

Burlington brought this suit on August 27, 2009, seeking declaratory judgment that its commercial, general-liability policy does not provide coverage for the matters alleged in the above-mentioned state-court action, that it is not obligated to furnish a defense to One Stop Liquor and Bar in that case, and that it is not required to pay any judgment entered in that matter.

On May 11, 2010, the Court entered default judgment against One Stop Liquor on Burlington's claim for reformation of the policy to reflect a September 1, 2007, effective date.

(R. 29.) It did so on the ground of One Stop's misrepresentation regarding known losses at the time Burlington agreed to revise the effective date of the policy. (Id. at 3.) Since the insurance policy was not in effect on August 26, 2010, through August, 28, 2010-the period in which the fatal shooting and subsequent fire occurred-the Court held that Burlington has no duty to defend or indemnify One Stop in Barefield and Magee's underlying state-court action. (Id.) The Court declined to enter an order of default judgment terminating the matter as to Barefield and Magee, however, because they had answered the complaint. (Id.)

On September 3, 2010, Burlington filed the motion for summary judgment that is presently before the Court. (R. 60.) The matter now being fully ...


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