Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jordan Mozer & Associates, Ltd. v. General Casualty Company of Wisconsin

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

April 24, 2015



RONALD A. GUZMAN, District Judge.

For the reasons stated below, Defendant's motion to dismiss [14] is granted in part and denied in part. Count IV is dismissed without prejudice. Counts II and III are dismissed to the extent that they seek monetary damages, but survive as claims for declaratory judgment.


Jordan Mozer & Associates, Ltd. ("Plaintiff") filed suit against General Casualty Company of Wisconsin ("Defendant") on December 22, 2014, claiming breach of an insurance policy. (Compl., Dkt. # 1.) This case is before the Court on Defendant's motion to dismiss Counts II, III, and IV of the complaint. (Mot. Dismiss, Dkt. # 14.)


Plaintiff is an architecture and design firm based in Chicago, previously operating out of an office on Ohio Street. (Compl., Dkt. # 1 ¶ 14.) In March and April of 2013, contractors performed sandblasting on the walls of a neighboring office in the same building as Plaintiff's Ohio Street offices. (Id. at ¶ 17.) As a result of this sandblasting, Plaintiff's storage and office spaces were contaminated with lead dust and other debris. (Id. at ¶ 19.) This contamination forced Plaintiff to vacate the office space and relocate to another location, causing interruption of Plaintiff's business. (Id. at ¶ 20.) Plaintiff's damages from this contamination and subsequent move included $5, 500, 000.00 for direct damage to and loss of property, $1, 966, 610.00 in lost business income due to the interruption in operations caused by the move, and $2, 429, 612.00 in extra expenses necessary to continue operations at the new location. (Id. at ¶ 21.)

After the disruption to its business, Plaintiff timely notified Defendant of the losses it had incurred. (Id. at ¶ 22.) Defendant had issued a business insurance policy to Plaintiff covering the entirety of 2013, and this policy provided coverage for property loss or damage, loss of business income, and extra expenses. (Id. at ¶ 6.) The policy limit for physical loss or damage to covered property was $1, 124, 864.00 plus additional coverage and endorsements, and Defendant eventually paid the full policy limit amount for property damage. (Id. at ¶¶ 8, 24.) The policy did not contain a similar limitation on the amount of lost business income or extra expenses covered. (Id. at ¶¶ 10, 12.) Under the terms of the policy, lost business income and extra expenses are covered if they are incurred during the "period of restoration" and within 12 months following the date of the physical property loss or damage. (Id. at ¶ 39.) The "period of restoration" extends to the date when the business resumes at a new permanent location or to the date when the premises should be repaired, rebuilt, or replaced with reasonable speed. (Id. at ¶ 40.)

Defendant delayed processing and paying Plaintiff's claims until September 2013, and this delay prevented Plaintiff from resuming its business promptly. (Id. at ¶¶ 41-42.) Defendant's repeated insistence on multiple inspections, estimates, and inventories also prevented Plaintiff from fully moving into a new building and resuming normal operations. (Id. at ¶¶ 49-53.) Knowing that it was partially responsible for the delay in resuming Plaintiff's business, Defendant assured Plaintiff that it would not restrict Plaintiff's lost business income and extra expense claims to the 12-month window and "period of restoration" requirement contemplated in the policy. (Id. at ¶ 54.) In reliance on these assurances, Plaintiff complied with Defendant's demands and delayed the move to its new premises until May 2014. (Id. at ¶ 56.)

Despite its representations, Defendant ultimately paid out only $441, 609.00 for lost business income and refused to pay any amount for extra expenses covered under the policy. (Id. at ¶¶ 25, 34, 62.) Defendant justified the failure to pay these claims by relying on a flawed analysis by an accountant, claiming that the extra expenses were not caused by the covered property loss, accusing Plaintiff of failing to produce adequate proof, and strictly applying the 12-month cutoff for claims. (Id. at ¶¶ 81, 84, 86-87.) This failure to pay the claims in full caused Plaintiff to incur additional losses relating to taking inventory of property, setting up a replacement office, and securing third-party financing to fund the relocation costs. (Id. at ¶¶ 35-36.)

Plaintiff filed the instant suit seeking declaratory judgment and damages for breach of the insurance contract, waiver, estoppel, and promissory estoppel, as well as attorney's fees and penalties. (Id. at ¶¶ 88-122.)

Legal Standard

Federal Rule of Civil Procedure 12(b)(6) permits a party to move for dismissal where a complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12. To state a claim, a complaint need only contain a short and plaint statement showing that the plaintiff is entitled to relief. See EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007). In ruling on a Rule 12(b)(6) motion, the Court must accept as true all well-pleaded factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. See Hecker v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009). A complaint may survive a motion to dismiss under Rule 12(b)(6) if it contains sufficient factual allegations to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).


Defendant moves to dismiss Counts II (waiver), III (estoppel), and IV (promissory estoppel) of Plaintiff's ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.