United States District Court, N.D. Illinois, Eastern Division
KINDRA LAKE TOWNING, L.P., and BLACK DIAMOND MARINE EQUIPMENT, INC., Plaintiffs,
DONAT INSURANCE SERVICES, LLC, and KEN DONAT, Defendants.
MEMORANDUM OPINION AND ORDER
D. Leinenweber, United States District Court Judge
Defendants' self-styled Motion for Judgment on the
Pleadings [ECF No. 23] is granted. The Complaint is dismissed
without prejudice with permission to refile if and when the
facts of this case, which involved the sinking of a haunted
house on a dark and stormy night, were discussed at length in
the Court's last memorandum opinion. See, Kindra Lake
Towing, L.P. v. Donat Ins. Servs., LLC, No. 16 C 3916,
2016 U.S. Dist. LEXIS 129803, at *1-6 (N.D. Ill. Sep. 20,
2016). Suffice it to recount that Plaintiffs Kindra Lake
Towing and Black Diamond Marine Equipment
(“Plaintiffs”) had chartered a barge to non-party
Foundation Theatre Group (“Foundation”).
Plaintiffs contractually required Foundation to carry
insurance for the vessel, and Foundation turned to the
Defendants, Donat Insurance Services, LLC, and its owner, Ken
Donat (the “Defendants”), for insurance brokerage
services. Defendants procured for Foundation a policy
underwritten by Capitol Indemnity Corporation. The policy
named both Foundation and Plaintiffs as insureds.
barge, carrying Foundation's staged haunted house, was
then docked at Navy Pier. On Halloween 2014, a storm sunk the
barge. On its heel followed three federal lawsuits. The
interactions of these lawsuits, the last of which is the case
before this Court, are important for the resolution of the
motion at hand. The Court thus delves into them in some
first lawsuit, filed before District Judge Thomas M. Durkin,
is a declaratory judgment action brought by Plaintiffs.
See, In re Kindra Lake Towing, L.P., No. 15 C 03174
(filed Apr. 4, 2015). In this lawsuit (“the Durkin
suit”), Plaintiffs seek to have the court declare that
Plaintiffs are not liable to any party for any losses that
arose out of the sinking of the barge. See, id., ECF
No. 1 ¶¶ 13-15, 24. Foundation and Navy Pier both
counterclaim against Plaintiffs. See, id., ECF Nos.
38-39. Foundation seeks damages for its lost haunted house
and lost profits in the amount of $375, 000.00, while Navy
Pier claims $600, 000.00 in damages to its dock. See,
id., ECF No. 38 at pp. 13-21 (Foundation's
Countercl.); ECF No. 39 ¶¶ 13, 21, 29, 35 (Navy
Plaintiffs (and their insurers) also bring a claim for money
damages against Foundation as part of the Durkin suit.
See, id., ECF No. 24 (“Plaintiffs'
Counterclaims against Foundation”). The damages that
Plaintiffs seek in that complaint are precisely those that
they seek against Defendants in the case before this Court.
In particular, Plaintiffs allege that: “As a result of
said breaches of contract by Foundation Theatre, the
Claimants [Plaintiffs and their insurers] have suffered
damages well in excess of $1, 500, 000 arising out of the
damages suffered by [the barge] TMS 200, the salvage
of said barge and the containers from the bottom of Lake
Michigan, transportation fees, surveyor fees, loss of use,
storage fees, prejudgment interest, and legal fees.”
Id. ¶ 19. Wherefore, Plaintiffs pray for
damages “well in excess of $1, 500, 000.”
Id. ¶¶ 21, 26.
second lawsuit, pending before Judge John Robert Blakey, is a
declaratory action brought by Capitol Indemnity Corporation.
See, Capitol Indemnity Corporation v. Foundation Theatre
Group, No. 15 C 09735 (filed Oct. 30, 2015) (“the
Blakey suit”). Capitol, the underwriter behind the
insurance policy Defendants procured, requests a judgment
declaring that its policy does not provide “coverage,
either defense or indemnity . . . for FTG [Foundation Theatre
Group], Navy Pier, Kindra, and Black Diamond for . . . the
damages alleged in th[e] [Durkin] Action.”
Id., ECF No. 1 ¶ 41. Capitol prays for this
relief on the basis of various exclusionary clauses written
into the insurance policy, including a clause excluding
coverage for “watercraft” (Exclusion G) and one
excluding “property damage” coverage for
“property [that] you own, rent or occupy, ”
“property loaned to you, ” and “personal
property in the care, custody or control of the
insured” (Exclusion J). Id. ¶ 32.
short, Capitol seeks a declaration that it is not liable for
any damage awards that may flow from the Durkin lawsuit. That
lawsuit, as will be recalled, includes the claim for $1.5
million that Plaintiffs brought against Foundation. Both
Foundation and Plaintiffs are contesting and making
counterclaims against Capitol in the Blakey action. See,
id., ECF Nos. 28 and 37.
the third and latest filed suit is the one before this Court.
In this case, Plaintiffs are suing the Defendant insurance
brokers on the theory that Defendants caused Plaintiffs harm
by failing “to place the proper and correct insurance
[as] requested by Foundation.” Kindra Lake Towing,
L.P. v. Donat Ins. Servs., LLC, No. 16 C 03916, ECF No.
1 (Compl.) ¶ 30. Plaintiffs allege that their
“damages and losses . . . are still being calculated,
but will be in excess of $1, 500, 000.00, including damage
sustained to the barge TMS-200 (‘the Vessel'),
salvage costs, loss of use, attorneys' fees, pre-judgment
interest, and other expenses.” Id.
¶¶ 31, 52. Elsewhere in their filings before the
Court, Plaintiffs clarify that the damages they seek include
both “1) property damage for the loss of their vessel
and the associated costs relating to salvage and cleanup, and
2) liability exposure for the cost of defending themselves
against lawsuits from Navy Pier and Foundation and potential
damage awards.” See, ECF No. 28 (Pl.'s
Resp. to Defs.' Mot.) at 5.
Defendants now move for the Court to dismiss the Complaint on
the grounds that Plaintiffs will suffer injuries only if the
Durkin and Blakey lawsuits are resolved against them. As
such, either Plaintiffs lack standing to sue or their claims
are not yet ripe for adjudication. For the reasons stated
herein, the Court finds that dismissal is appropriate at this
addition to arguing for standing and ripeness, Plaintiffs
urge that the Court deny the Motion because it is untimely.
The Court thus addresses this procedural argument ...