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Netherlands Ins. Co. v. National Casualty et al

April 27, 2012

NETHERLANDS INS. CO. PLAINTIFF
v.
NATIONAL CASUALTY ET AL, DEFENDANTS



The opinion of the court was delivered by: John A. Gorman United States Magistrate Judge

E-FILED

Friday, 27 April, 2012 10:33:19 AM

Clerk, U.S. District Court, ILCD

ORDER

Now before the Court are four motions to compel (#124, 125, 126 and 138). In those motions, Defendant/Third Party Plaintiff National Casualty Company seeks to compel discovery responses from MPC Enterprises, Continental Casualty Company, Netherlands Insurance Company and W.W. Transport Inc.. The motions are now fully briefed, and I have carefully considered the arguments of the parties. As stated herein, the motions are DENIED.

FACTS AND PROCEDURAL POSTURE In two underlying lawsuits*fn1 (filed on August 28, 2008 and April 15, 2010), the Plaintiffs alleged that they were injured in a car-truck collision. They sued Dean Becker, who owned the truck and was driving at the time of the accident, and Smithway Motor Xpress Inc. ("SMX"), which had leased Beckler's tractor. Third partied into the action were MPC Enterprises Inc. ("MPC"), which had hired SMX to transport its cargo, and W. W. Transport Inc. ("WWT"), the owner of the trailer. The claims against Beckler and SMX included prayers for punitive damages.

At the time of the accident, National had issued a commercial auto liability policy to SMX (which also included Beckler as an additional insured). Netherlands had issued a business auto policy to MPC, who was also an insured under a commercial umbrella liability policy issued by Hawkeye-Security Ins. Co. ("Hawkeye"). Continental had issued a commercial auto liability policy to WWT, who was also an insured under a commercial umbrella liability policy issued by Discover Property & Casualty Insurance Company ("Discover") and a following-form excess umbrella liability policy issued by Lexington Insurance Co. ("Lexington").

The underlying actions were resolved following settlement conferences on July 26 and 27, 2011. Netherlands, National and Continental, plus SMX*fn2 itself, contributed to a fund that was paid out to settle all the Plaintiffs' claims in the underlying actions. The final settlement stipulation was filed on Oct. 13, 2011, and the cases were closed on that date.

The case at bar was filed on May 19, 2010, while the underlying actions were still pending. The settlement agreement included a reservation of rights by those who had paid into the fund, as against each other and other potential insurers. The case at bar seeks determination of those rights reserved.

The pleadings in this case were amended following settlement of the underlying cases. The documents that currently govern the case at bar are: amended complaint by Netherlands against National and Continental (#91); amended counterclaim, cross-claim and third party claim by National against Netherlands, Continental, Discover, Hawkeye, and Lexington (#83); amended counterclaim against National and Netherlands by Continental (#86); and amended counterclaim against Netherlands and Continental by Dean Beckler (#88).

The schedule in this case was vacated and amended on January 25, 2012. Less than a month later, on Feb. 21, three of the pending motions to compel were filed; the fourth was filed on March 29.

They are fully briefed.

DISCUSSION

PRELIMINARY MATTERS

A. Is MPC a party?

In the motion to compel directed to MPC, National asserts that it sent written discovery to MPC on August 19, 2011, a date falling after settlement had been reached in the underlying cases but before the amended pleadings had been filed. When no answers to that discovery were received, ...


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