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Essex Ins. Co. v. RHO Chemical Co., Inc.

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

November 3, 2015


          For 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.

         For RHO Chemical Company, Inc., Robert Rolih, Lorraine Rolih, General Surfactants, Inc., Defendants: James P. Marsh, LEAD ATTORNEY, Momkus McCluskey, LLC, Lisle, IL.

         For Mila Stavinoha, Defendant: Bruce D. Goodman, Ronald W. Kalish, Steinberg, Goodman & Kalish, Chicago, IL.

         For Lorraine Rolih, Robert Rolih, RHO Chemical Company, Inc., Counter Claimants: James P. Marsh, LEAD ATTORNEY, Momkus McCluskey, LLC, Lisle, IL.


         AMY J. ST. EVE, United States District Judge.

         Plaintiff 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.


         I. Northern District of Illinois Local Rule 56.1

         Local 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).

         Local 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.

         Here, 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.

         II. Relevant Facts.

         A. Jurisdiction and Venue

         Essex 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. )

         Both 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.)

         B. Underlying Lawsuit

         Stavinoha 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.)

         Defendants 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. )

         Further 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 ΒΆ 22.) Second, on or about April 25, 2014, Defendant Robert Rolih reported Stavinoha's underlying personal ...

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