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Westfield Insurance Co. v. National Decorating Service, Inc.

United States District Court, N.D. Illinois, Eastern Division

September 9, 2014

WESTFIELD INSURANCE COMPANY, Plaintiff,
v.
NATIONAL DECORATING SERVICE, INC. et al., Defendants

For Westfield Insurance Company, Plaintiff: Christopher James Pickett, David S. Osborne, Justin Keith Seigler, Joseph Patrick Postel, Lindsay Rappaport & Postel, LLC, Chicago, IL.

For National Decorating Service, Inc., Defendant, Cross Defendant: Kent J. Cummings, Kevin R. Sido, LEAD ATTORNEYS, Hinshaw & Culbertson, Chicago, IL.

For James McHugh Construction Co., Defendant: Christopher Michael Cano, LEAD ATTORNEY, Franco & Moroney LLC, Chicago, IL; Scott O. Reed, Donnelly Lipinski & Harris LLC, Chicago, IL.

For 200 North Jefferson, LLC, Defendant, Cross Claimant: Charles Henry Wahtola, III, LEAD ATTORNEY, Jean G. Wine, Stein Ray LLP, Chicago, IL.

Page 899

MEMORANDUM OPINION

Samuel Der-Yeghiayan, United States District Judge.

This matter is before the court on Defendant National Decorating Service, Inc.'s (National) motion to dismiss and on Defendant James McHugh Construction Company's (McHugh) motion to dismiss. For the reasons stated below, the motions to dismiss are denied.

BACKGROUND

Plaintiff Westfield Insurance Company (Westfield) allegedly issued an insurance policy (Policy) to National. The Policy was initially effective from February 28, 2008 through February 28, 2009 and it was allegedly renewed three times until it expired on November 1, 2011. On January 3, 2012, Defendant Board of Managers of 200 North Jefferson Tower Condominium Association (Association) brought an action (Underlying Action) in Illinois state court. The Association allegedly brought claims relating to alleged construction defects against McHugh, Defendant 200 North Jefferson, LLC (200 North), and Defendant MCZ/Jameson Development Group, LLC (MCZ). On January 9, 2014, McHugh allegedly filed a third-party complaint (Third-Party Complaint) against National. Westfield brought the instant action and includes in its amended complaint, a claim seeking a declaration that Westfield has no duty to defend or indemnify National in the Underlying Action (Count I), a claim seeking a declaration that Westfield has no duty to defend or indemnify McHugh in the Underlying Action (Count II), a claim seeking a declaration that Westfield has no duty to defend or indemnify 200 North in the Underlying Action (Count III), and a claim seeking a declaration that Westfield has no duty to defend or indemnify MCZ in the Underlying Action (Count IV). The court notes that Westfield has only included four counts in its amended complaint and has incorrectly labeled the fourth count as " Count V." (A Compl. 17). Westfield had named the Association as a defendant in this action and on August 27, 2014, Westfield voluntarily dismissed the claim

Page 900

brought against the Association. 200 North has filed an answer and crossclaim in this case, and the record reflects that Westfield is still attempting to execute service on MCZ. National and McHugh (collectively referred to as " Moving Defendants" ) now move to dismiss the claims brought against them.

LEGAL STANDARD

In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) (Rule 12(b)(6)), the court must draw all reasonable inferences that favor the plaintiff, construe the allegations of the complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 622 (7th Cir. 2012); Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). A plaintiff is required to include allegations in the complaint that " plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level'" and " if they do not, the plaintiff pleads itself out of court." E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007)(quoting in part Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007)); see also Morgan Stanley Dean Witter, Inc., 673 F.3d at 622 (stating that " [t]o survive a motion to dismiss, the complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face," and that " [a] claim has facial ...


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