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In re Lodholtz

United States Court of Appeals, Seventh Circuit

October 6, 2014

IN RE: ROBERT LODHOLTZ, et al., Petitioners,

Submitted July 30, 2014

Petition for Permission to Appeal from the Northern District of Indiana, South Bend Division. No. 3:11-cv-00435-RL-CAN -- Rudy Lozano, Judge.

For Robert Lodholtz, Petitioner: Charles P. Rice, Attorney, Murphy Rice, Llp, South Bend, IN.

For Pulliam Enterprises, Incorporated, Petitioner: Charles P. Rice, Attorney, Murphy Rice, Llp, South Bend, IN.

For Granite State Insurance Company, Respondent: Traci M. Ribeiro, Attorney, Fred A. Smith III, Attorney, Sedgwick Llp, Chicago, IL.

For York Risk Services Group, Incorporated, Respondent: Casey R. Stafford, Kightlinger & Gray Llp, Indianapolis, IN.

For New Hampshire Insurance Company, Respondent: Traci M. Ribeiro, Attorney, Sedgwick Llp, Chicago, IL.

Before POSNER, KANNE, and WILLIAMS, Circuit Judges.

OPINION

Page 532

Posner, Circuit Judge.

Before us is a petition filed under 28 U.S.C. § 1292(b) for permission to appeal from an order by the district court on the ground that though not the final order in the litigation it resolved a " controlling question of law" incorrectly, and that correction will expedite the resolution of the entire litigation--in fact end it. See Ahrenholz v. Board of Trustees of University of Illinois, 219 F.3d 674, 675-76 (7th Cir. 2000). We grant the petition, and since the papers filed by the parties cover the merits adequately, we can proceed to the decision of the appeal.

The case has a long tail; we'll simplify. Robert Lodholtz, seriously injured in 2011 while working at a plant owned by Pulliam Enterprises in Indiana, filed a personal injury suit against Pulliam in an Indiana state court. Pulliam asked Granite State Insurance Company, its primary liability insurer, along with New Hampshire Insurance Company, its umbrella insurer and Granite State's parent (but we can ignore it and treat Granite State as the only insurer), to defend and indemnify it against the suit. Granite State declined to do so, believing that Pulliam was not liable because, as an employee injured in the course of his employment, Lodholtz could not maintain a tort suit but only a claim for workers' compensation. Lodholtz disagreed, contending that he'd been employed not by Pulliam but by another firm even though he'd been injured while working on Pulliam's premises. Since he wasn't Pulliam's employee, he had no basis for filing a claim for workers' compensation.

When Pulliam failed to file an answer to the complaint, Lodholtz moved for entry of a default judgment. His motion was granted. But he agreed not to execute his default judgment, and in return Pulliam agreed to assign him its rights against Granite State.

Worried that it might have to indemnify Lodholtz and continuing to insist that he'd been Pulliam's employee when injured, Granite State moved to intervene in Lodholtz's suit in order to assert the defense that Pulliam would have made had it not defaulted. The Indiana trial court denied the motion to intervene and after taking evidence on the amount of ...


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