United States District Court, N.D. Illinois, Eastern Division
Essex Insurance Company, Plaintiff, Counter Defendant: Steven
Nickolas Novosad, LEAD ATTORNEY, P. Scott Ritchie, Clausen
Miller P.C., Chicago, IL; Paul Wilson Daugherity, Clausen
Miller, Chicago, IL.
Chemical Company, Inc., Robert Rolih, Lorraine Rolih, General
Surfactants, Inc., Defendants: James P. Marsh, LEAD ATTORNEY,
Momkus McCluskey, LLC, Lisle, IL.
Mila Stavinoha, Defendant: Bruce D. Goodman, Ronald W.
Kalish, Steinberg, Goodman & Kalish, Chicago, IL.
Lorraine Rolih, Robert Rolih, RHO Chemical Company, Inc.,
Counter Claimants: James P. Marsh, LEAD ATTORNEY, Momkus
McCluskey, LLC, Lisle, IL.
OPINION AND ORDER
ST. EVE, United States District Judge.
and Defendants have filed cross motions for summary judgment
seeking Declaratory Judgment as to an exclusion
provision's applicability to an insurance policy. For the
following reasons, the Court grants Plaintiff's motion
for summary judgment and denies Defendants' motions.
Northern District of Illinois Local Rule 56.1
Rule 56.1(a)(3) requires the moving party to provide " a
statement of material facts as to which the moving party
contends there is no genuine issue." Cracco v.
Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009).
The nonmoving party then must file " a response to each
numbered paragraph in the moving party's statement,
including, in the case of any disagreement, specific
references to the affidavits, parts of the record, and other
supporting materials relied upon." Id. (citing
N.D.Ill. L.R. 56.1(b)(3)(B)). Indeed, " [w]hen a
responding party's statement fails to dispute the facts
set forth in the moving party's statement in the manner
dictated by the rule, those facts are deemed admitted for
purposes of the motion." Id. The nonmoving
party also must present a separate statement of additional
facts, if any, that it contends require the denial of summary
judgment. See Ciomber v. Cooperative Plus,
Inc., 527 F.3d 635, 643-44 (7th Cir. 2008) (citing
N.D.Ill. L.R. 56.1(b)(3)(C)). These rules assist the courts
by " organizing the evidence, identifying undisputed
facts, and demonstrating precisely how each side propose[s]
to prove a disputed fact with admissible evidence."
Bordelon v. Chicago Sch. Reform Br. of Trs., 233
F.3d 524, 527 (7th Cir. 2000) (citation omitted).
Rule 56.1 " is designed, in part, to aid the district
court, 'which does not have the advantage of the
parties' familiarity with the record and often cannot
afford to spend the time combing the record to locate the
relevant information,' in determining whether a trial is
necessary." Delapaz v. Richardson, 634 F.3d
895, 899 (7th Cir. 2011) (citation omitted). In general, the
aim of Local Rule 56.1 statements and responses is to
identify the relevant admissible evidence supporting the
material facts, not to make factual or legal arguments.
See Cady v. Sheahan, 467 F.3d 1057, 1060
(7th Cir. 2006) (" [S]tatement of material facts also
did . . . not comply with Rule 56.1 as it failed to
adequately cite the record and was filled with irrelevant
information, legal arguments, and conjecture." ). The
rule makes the summary judgment process less burdensome on
district courts by requiring the parties to nail down the
relevant facts and the way they propose to support or refute
them. Sojka v. Bovis Lend Lease, Inc., 686 F.3d 394,
398 (7th Cir. 2012). Importantly, " district court[s]
[are] entitled to expect strict compliance with Local Rule
56.1." Cichon v. Exelon Gen. Co., L.L.C., 401
F.3d 803, 809 (7th Cir. 2005) (citation omitted). A court, in
its discretion, may choose to disregard statements of fact
and responses, in full or in part, that do not comply with
Local Rule 56.1's requirements. See, e.g.,
Cracco, 559 F.3d at 632; Cichon, 401 F.3d
at 809-10; Cady, 467 F.3d at 1060;
Bordelon, 233 F.3d at 528. In sum, " [f]or
litigants appearing in the Northern District of Illinois, the
Rule 56.1 statement is a critical, and required, component of
a litigant's response to a motion for summary
judgment." Sojka, 686 F.3d at 398.
the Court has not considered statements of fact set forth by
either side that fail to comply with Local Rule 56.1, and it
has deemed as admitted those statements of fact to which the
opposing party failed to properly respond. See
Cracco, 559 F.3d at 632. Furthermore, the Court
considered the facts asserted in the underlying complaints.
See Atlantic Cas. Ins. Co. v. Paszko Masonry,
Inc., 718 F.3d 721, 723 (7th Cir. 2013) (" The
facts alleged in a complaint against an insured, charging a
tort or other wrong, are critical to determining the
insurer's duty to defend." ). With these principles
in mind, the Court turns to the relevant facts.
Jurisdiction and Venue
Insurance Company (" Essex" ) is a Delaware
Corporation with its principal place of business in Glen
Allen, Virginia. (R. 61, Essex Stmnt. of Facts, at ¶ 1.)
RHO Chemical Company, Inc. (" RHO" ) is an Illinois
corporation with its principal place of business in Joliet,
Illinois. ( Id. at ¶ 2.) General Surfactants,
Inc. (" GSI" ) is an Illinois Corporation with its
principal place of business in Joliet, Illinois. (
Id. at ¶ 6.) GSI is not a named insured and
does not otherwise qualify as an insured under the insurance
policy at issue. ( Id. at ¶ 7.) Robert Rolih is
the president of RHO, the president of GSI, and a citizen of
Illinois. ( Id. at ¶ 3.). Lorraine Rolih is
Robert Rolih's wife and a citizen of Illinois. (
Id. at ¶ 4.) RHO and the Rolihs are named
insureds under Essex Insurance Policy No. 3DF8043 ("
insurance policy" ). ( Id. at ¶ 5.) Milan
Stavinoha (" Stavinoha" ) is a citizen of Illinois
and the plaintiff in the underlying lawsuit filed on April
11, 2014 entitled Milan Stavinoha v. RHO Chemical
Company, Inc., General Surfactants, Inc., Robert Rolih, and
Lorraine Rolih, No. 14 L 302. ( Id. at ¶
8.) The underlying case is currently pending in the Circuit
Court of the 12th Judicial Circuit in Will County, Illinois.
( Id. )
parties seek relief under the Declaratory Judgment Act, 28
U.S.C. § § 2201, 2202. " The Declaratory
Judgment Act allows a party . . . who expects to eventually
be sued, to determine his rights and liabilities without
waiting for his adversary, the presumptive plaintiff, to
bring suit. That act, however, is not an independent grant of
federal subject-matter jurisdiction[.]" DeBartolo v.
Healthsouth Corp., 569 F.3d 736, 741 (7th Cir. 2009).
Here, the Court has diversity jurisdiction over this action
under 28 U.S.C. § 1332, because complete diversity of
citizenship exists between the parties and the amount in
controversy exceeds $75,000.00. (R. 61 at ¶ ¶
12-14.) Venue is premised upon 28 U.S.C. § 1391. (
Id. at ¶ 15.) In addition, all parties agree
that Illinois law applies. ( Id. at ¶ 11.)
filed a lawsuit in state court against RHO, GSI, and the
Rolihs, claiming he suffered severe injuries on April 27,
2012, when portions of a building's roof fell out from
under him at 30 Industry Avenue, Joliet, Illinois. (R. 9-4,
Stavinoha Compl., at ¶ 4; R. 61 at ¶ ¶ 18-20.)
He alleges that RHO, GSI, and the Rolihs owned, controlled,
maintained and operated the building at the time of his
injury. (R. 9-4 at ¶ 1; R. 61 at ¶ 18.) On the day
of his injury, Stavinoha was present at the Industry Avenue
premises performing work on the roof pursuant to his
employment with P& P Roofing & Carpenters Construction
(" P& P" ). (R. 61 at ¶ 20.) Specifically,
Stavinoha asserts that he was a lawful invitee on the
premises when he was injured, and seeks to recover from
Defendants for their negligence and associated unsafe working
conditions. (R. 9-4 at ¶ 2-4.)
then filed a Third Party Complaint in the underlying action
seeking contribution against P& P, whom they admitted was
Stavinoha's employer. (R. 61 at ¶ 40.) In their
Third Party Complaint, Defendants allege that P& P sent
Stavinoha to repair the roof of a building on Industry Avenue
pursuant to an oral agreement between P& P and the Rolihs. (
Id. ) Defendants conclude that Stavinoha was
repairing the roof when the roof collapsed, causing him
severe injuries, and maintain that P& P bears responsibility
for Stavinoha's injuries as his employer. ( Id.
undisputed facts apart from the underlying complaints
illustrate that Stavinoha was injured while repairing the
building's roof under P& P's employment. First, on
June 12, 2012, Stavinoha filed a claim for worker's
compensation benefits with the Illinois Industrial Commission
due to his April 27, 2012 injuries received in the course and
scope of his P& P employment. ( Id. at ¶ 21.)
Since then, Stavinoha successfully received benefits pursuant
to his claim against P& P. ( Id. at ¶ 22.)
Second, on or about April 25, 2014, Defendant Robert Rolih
reported Stavinoha's underlying personal ...