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Norman E. Schuchman and Glenna Schuchman v. State Auto Policy and Casualty Insurance Company

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


April 18, 2011

NORMAN E. SCHUCHMAN AND GLENNA SCHUCHMAN, PLAINTIFFS,
v.
STATE AUTO POLICY AND CASUALTY INSURANCE COMPANY,
DEFENDANT.

The opinion of the court was delivered by: Herndon, Chief Judge:

ORDER

Now before the Court is defendant's motion to strike prayer for relief in count II (Doc. 5). Specifically, defendant moves the Court to strike the prayer of relief of punitive damages in Count II arguing that recovery of punitive damages is pre-empted by Section 155 of the Illinois Insurance Code. Plaintiffs oppose the motion asserting that defendant's conduct may rise to a level necessary for them to meet their burden for punitive damages and request that they be allowed discovery on this issue. The Court agrees and denies at this time the motion to strike.

Here, plaintiffs filed a three count declaratory judgment against defendant requesting the Court to find that damage from a May 23, 2010 fire is covered under an insurance policy defendant issued to plaintiffs. Count I is for declaratory judgment; Count II is for money damages; and Count III is for section 155 damages (Doc. 2-2).

In Cramer v. Insurance Exchange Agency, the Illinois Supreme Court held that 215 ILCS 5/155 did not preclude actions for common law tort, even when the statute applied to claims that the insurer acted in bad faith or vexatiously in denying a claim. 174 Ill.2d 513, 675 N.E.2d 897 (Ill. 1996). At this stage of the proceedings, the Court finds that discovery on this issue is warranted. Thus, the Court denies at this time defendant's motion to strike (Doc. 5).

IT IS SO ORDERED.

Digitally signed by David R. Herndon Date: 2011.04.18 11:55:29 -05'00' Chief Judge United States District Court

20110418

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