United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
W. DARRAH United States District Court Judge
Velsicol Chemical, LLC (“Velsicol”) filed a
Complaint, alleging breach of contract against Defendant
Westchester Fire Insurance Company
(“Westchester”). Defendant filed a Motion for
Partial Summary Judgment  of Counts III through XVI of
Plaintiff's Complaint. For the reasons set forth below,
Defendant's Motion  is granted in part and denied in
Rule 56.1(a)(3) requires the moving party to provide “a
statement of material facts as to which the party contends
there is no genuine issue for trial.” Ammons v.
Aramark Uniform Servs., 368 F.3d 809, 817 (7th Cir.
2004). Local Rule 56.1(b)(3) requires the nonmoving party to
admit or deny every factual statement proffered by the moving
party and to concisely designate any material facts that
establish a genuine dispute for trial. See Schrott v.
Bristol-Myers Squibb Co., 403 F.3d 940, 944 (7th Cir.
2005). A nonmovant's “mere disagreement with the
movant's asserted facts is inadequate if made without
reference to specific supporting material.” Smith
v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). In the case
of any disagreement, the nonmoving party must reference
affidavits, parts of the record, and other materials that
support his stance. Local Rule 56.1(b)(3)(B). To the extent
that a response to a statement of material fact provides only
extraneous or argumentative information, this response will
not constitute a proper denial of the fact, and the fact is
admitted. See Graziano v. Vill. of Oak Park, 401
F.Supp.2d 918, 936 (N.D. Ill. 2005). Similarly, to the extent
that a statement of fact contains a legal conclusion or
otherwise unsupported statement, including a fact that relies
upon inadmissible hearsay, such a fact is disregarded.
Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir.
1997). Pursuant to Local Rule 56.1(b)(3)(C), the nonmovant
may submit additional statements of material facts that
“require the denial of summary judgment.”
district court is entitled to expect strict compliance with
Rule 56.1; substantial compliance is not enough.
Ammons, 368 F.3d at 817. “When 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.” Curtis v. Costco Wholesale Corp., 807
F.3d 215, 218 (7th Cir. 2015) (quoting Cracco v. Vitran
Express, Inc., 559 F.3d 625, 632 (7th Cir. 2009)).
following facts are taken from the parties' statements of
undisputed material facts submitted in accordance with Local
is a limited-liability company with its principal place of
business in Rosemont, Illinois. (Compl. ¶ 4.) Prior to
September 30, 2008, Velsicol was known as Velsicol Chemical
Corporation and was a Delaware corporation with its principal
place of business in Rosemont, Illinois. (Compl. ¶ 4.)
purchased insurance policy number 523 2388653 (the
“Policy”) from International Insurance Company
(“International”). The Policy covered the period
of January 1, 1983, through January 1, 1986. (Compl. ¶
17.) Velsicol was a subsidiary of Northwest Industries, Inc.
at the time it purchased the Policy. Northwest Industries,
Inc. sold Velsicol to Velsicol's current management in or
about 1986. Northwest Industries, Inc. subsequently changed
its name to Fruit of the Loom, Inc. (Compl. ¶ 5.)
is a Pennsylvania corporation that transacted business within
the state of Illinois at all times relevant to this case.
(Dkt. 64, ¶ 5.) Pursuant to the terms of an Assumption
and Indemnity Reinsurance Agreement, Westchester assumed
responsibility for the Policy in 1993. (Id. ¶
about October 15, 1998, Velsicol was joined as a plaintiff in
an action pending in the Circuit Court of Cook County,
Illinois (“Illinois State Court Action”).
(Id. ¶ 6.) In the Illinois State Court Action,
Velsicol alleged claims for declaratory judgment and/or
breach of contract against, among others, International.
(Id. ¶ 7.) Velsicol sought defense and
indemnity coverage under the Policy as to numerous sites,
including certain sites at issue in this case. (Id.
¶ 8.) On July 25, 2006, International filed a motion for
summary judgment in the Illinois State Court Action.
(Id. ¶ 9.) International argued that Velsicol
failed to provide timely notice of certain claims to
International and that this failure resulted in a breach of
the notice provision in the Policy. (Id.) On October
19, 2006, the trial court in the Illinois State Court Action
granted International's motion for summary judgment.
(Id. ¶ 10.) Velsicol did not appeal the ruling
and voluntarily dismissed its claims against International on
January 15, 2008. (Id. ¶ 11.) On that same
date, an order was entered, stating that all claims and
counterclaims between Velsicol, and International, among
others, were voluntarily dismissed without prejudice.
(Id. ¶ 12.) Westchester was not a named party
in the Illinois State Court Action and International did not
file any pleading relating to the Assumption and Indemnity
Reinsurance Agreement. (Dkt. 1, ¶ 4.)
and International also entered into a tolling agreement,
effective January 15, 2008, which stated that “the
Parties, after dismissal without prejudice, shall have one
year following date of dismissal of the [l]awsuit, in which
to re-file the [l]awsuit.” (Dkt. 64, ¶ 13.) The
tolling agreement also stated that the one-year period could
only be extended by a written agreement signed by all of the
parties. (Id.) Velsicol did not file a lawsuit in
the Circuit Court of Cook County, Illinois against
International during the period from January 15, 2008,
through January 15, 2009. (Id. ¶ 14.) The
parties did not enter into a written extension of the tolling
agreement. (Id. ¶ 15.) On March 25, 2015,
Velsicol filed this Complaint against Westchester. Claims
pertaining to many of the sites giving rise to this case were
also at issue in the Illinois State Court Action. (Id.
judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56. Courts deciding summary judgment motions
must view facts “in the light most favorable to the
nonmoving party only if there is a ‘genuine'
dispute as to those facts.” Scott v. Harris,550 U.S. 372, 380 (2007). A genuine dispute as to any
material fact exists if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). The moving party has the initial burden
of establishing that there is no genuine dispute as to any
material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). If the moving party meets this burden,
“[t]he nonmoving party must point to specific facts
showing that there is a genuine issue for trial.”
Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir.
2009). Factual disputes do “not preclude summary
judgment when the dispute does not involve a material