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Moje v. Federal Hockey League LLC

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

September 19, 2016

KYLER MOJE, Plaintiff,
v.
FEDERAL HOCKEY LEAGUE LLC, NATIONAL CASUALTY COMPANY, THE DAVID AGENCY INSURANCE INC., and DON KIRNAN Defendants.

          MEMORANDUM OPINION & ORDER

          Joan B. Gottschall, Judge

         Plaintiff Kyler Moje (“Moje”) filed a two-count second amended complaint (“SAC”) against Federal Hockey League (the “League”), the National Casualty Company (“National Casualty”), the David Agency Insurance (the “David Agency”), and Don Kirnan (“Kirnan”) seeking a declaratory judgment regarding the coverage of an insurance policy between the League and National Casualty and the David Agency. Moje alleges that the David Agency failed to procure insurance that the League requested in order to insure its players for the type of injuries sustained by Moje. Kirnan was dismissed from the action following a stipulation by the parties. Presently before the Court is the David Agency's motion to dismiss the second amended complaint pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6) for failing to state a claim upon which relief can be granted. An insurance producer's duty to exercise ordinary care and skill in renewing, procuring, binding, or placing the coverage requested by the insured or proposed insured extends to a foreseeable plaintiff, like Moje, harmed by the insured's tortious conduct. For the following reasons, the David Agency's motion is granted in part and denied in part. Count I as directed toward the David Agency is dismissed with prejudice.

         I. BACKGROUND

         On February 10, 2012, Moje was playing in a professional hockey game as a member of the Danville Dashers team against the Akwesasne Warriors. Both teams belonged to the League. During the game, an Akwesasne Warrior made an illegal maneuver by lifting his hockey stick and thrusting the blade end forcefully under Moje's helmet, which caused significant injury to Moje, including blindness. A lawsuit was filed in the Northern District of Illinois, alleging willful and wanton negligence against the League and a products liability action against Oakley, Inc., the manufacturer of the facemask worn by Moje. That case resulted in a default judgment against the League in the amount of $800, 000. Moje has been unable to collect his judgment from the League.

         On October 9, 2015, Moje filed this action seeking a declaration of the rights of the League under the insurance policy issued by National Casualty and the David Agency. Moje seeks to determine whether there is coverage under the insurance policy for the insurer to pay for a judgment entered in favor of Moje against the League. Moje filed his First Amended Complaint on October 28, 2015 following an order by this court dismissing the complaint for lack of subject matter jurisdiction.

         In lieu of filing an answer, National Casualty filed a motion to dismiss Moje's first amended complaint on January 4, 2016. One day before Moje was set to file a response, he filed a second amended complaint on February 4, 2016. The second amended complaint removed Don Kirnan from the caption and added Count II. Moje directs Count II against the David Agency and seeks a declaration that the David Agency was negligent in procuring the insurance coverage sought by the League.

         Moje alleges that on or about June of 2012, the David Agency produced and brokered an insurance agreement between the other two Defendants, the League and National Casualty. The insurance policy at issue, policy number KKO0000002184300, was issued for a period from October 19, 2011 to October 19, 2012. Moje attached a copy of certificate of liability insurance that identifies the League as the insured, the David Agency as the producer, and the “INSURER(S) AFFORDING COVERAGE” as National Casualty. The certificate also contains the following disclaimer:

“THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURERS, AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.”

         The David Agency filed its motion to dismiss Moje's second amended complaint on February 18, 2016. The David Agency also requested the court to strike the second amended complaint because Plaintiff did not seek the leave of court to amend its complaint in violation of Federal Rule of Civil Procedure 15(a). Defendant National Casualty filed an answer to Plaintiff's second amended complaint on February 25, 2016 denying any coverage under the insurance policy at issue.

         II. LEGAL STANDARD

         To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim satisfies this pleading standard when its factual allegations “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555-56. For the purposes of a motion to dismiss, the court takes all facts alleged by the plaintiff as true and draws all reasonable inferences from those facts in the plaintiff's favor, although conclusory allegations that merely recite the elements of a claim are not entitled to this presumption of truth. Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011). Federal Rule of Civil Procedure 10(c) provides that “[a] copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.” Fed.R.Civ.P. 10(c). It is also well-settled in this circuit that “documents attached to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to his claim. Such documents may be considered by a district court in ruling on the motion to dismiss.” 188 LLC v. Trinity Indus., Inc., 300 F.3d 730, 735 (7th Cir. 2002) (citing Wright v. Assoc. Ins. Cos. Inc., 29 F.3d 1244, 1248 (7th Cir.1994)).

         III. DISCUSSION

         A. Motion to Strike the Second Amended Complaint

         The David Agency asks the court to strike Moje's second amended complaint because he did not ask for leave to amend his complaint in violation of Rule 15. Rule 15 states that a party “may amend its pleading once as a matter of course within: 21 days after serving it, or if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed.R.Civ.P. 15(a)(1). “[I]n all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). Even assuming that Moje retained ...


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