United States District Court, C.D. Illinois, Springfield Division
MYERSCOUGH UNITED STATES DISTRICT JUDGE
cause is before the Court on Plaintiff Great West Casualty
Company's Motion for Judgment on the Pleadings (d/e 34).
Plaintiff asks the Court to find that Plaintiff has no
obligation to defend or indemnify Defendants Ross Wilson
Trucking, Transport Services of Sullivan, IL, LLC (Transport
Services), or Mark J. Muncy for the allegations in the
underlying lawsuit filed by Defendants Stevan Schmelzer and
Shelly Schmelzer. Because Plaintiff has failed to demonstrate
that Plaintiff is entitled to judgment as a matter of law,
the Motion is DENIED.
may move for judgment on the pleadings pursuant to Federal
Rule of Civil Procedure 12(c). The standard for a Rule 12(c)
motion is the same as the standard for a Rule 12(b)(6) motion
to dismiss for failure to state a claim. Lodholtz v. York
Risk Servs. Group, Inc., 778 F.3d 635, 639 (7th Cir.
2015). That is, the Court asks “whether the pleadings
state a claim for relief that is plausible on its
face.” Andy Mohr Truck Ctr., Inc. v. Volvo Trucks
N. Am., ---F.3d ---, 2017 3695355, *8 (7th Cir. Aug. 28,
2017). The Court draws “all reasonable inferences and
facts in favor of the nonmovant, but need not accept as true
any legal assertions.” Wagner v. Teva Pharm. USA,
Inc., 840 F.3d 355, 358 (7th Cir. 2016). The Court may
consider only the pleadings-the complaint, the answer, and
any written instruments attached as exhibits. N. Ind. Gun
& Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d
449, 452 (7th Cir. 1998); see also 188 LLC v. Trinity
Indus., Inc., 300 F.3d 730, 735 (7th Cir. 2002) (on a
motion to dismiss pursuant to Rule 12(b)(6), the court may
also consider documents referred to in the complaint that are
central to the claim).
Court takes the following background from the Complaint for
Declaratory Judgment, the exhibits attached thereto, and the
Transport Services and Ross Wilson Trucking Enter Into an
Independent Contractor Agreement for Owner-Operator
Services and Ross Wilson Trucking entered into an
“Independent Contractor Agreement for
Owner-Operator” (Agreement) dated January 1, 2012.
Compl., Ex. 2 (d/e 1-3). The Agreement provides that
Transport Services is:
a for[-]hire motor carrier of property holding licenses from
the Federal Motor Carrier Safety Administration
(“FMCSA”) as well as various state regulatory
agencies, is engaged in the business of providing
transportation services for shippers, and intends to contract
with CONTRACTOR, on a non-exclusive basis for the lease of
motor vehicle equipment as set forth herein and for the
performance of certain tasks[.]
at 1. The Agreement identifies Ross Wilson Trucking as the
“CONTRACTOR.” The Agreement reflects that Ross
Wilson Trucking hauls under the authority of Transport
Equipment leased includes a 2012 Peterbilt tractor, model
386, and a 2016 Peterbilt tractor, model 579 (the latter
added to the Agreement in May 2015). Agreement, App. A. Ross
Wilson Trucking was required, under the Agreement, to furnish
qualified drivers to operate all Equipment leased pursuant to
the Agreement. Agreement ¶ 8E.
the Agreement in context, the Court notes that a motor
carrier like Transport Services can own its own trucking
equipment or can enter into a written lease with the owner of
trucking equipment. See Clarendon Nat'l Ins. Co. v.
Medina, 645 F.3d 928, 931 (7th Cir. 2011); see
also 49 C.F.R. § 376.11 (providing the conditions
under which an authorized carrier may perform authorized
transportation with equipment it does not own). Under the
written lease, the owner of the equipment (in this case, Ross
Wilson Trucking) “grants the use of equipment, with or
without a driver, for a specified period to an authorized
carrier for use in the regulated transportation of property,
in exchange for compensation.” 49 C.F.R. §
376.2(e) (defining “lease”); see also
Clarendon, 645 F.3d at 931. The written lease must
provide that the:
authorized carrier lessee shall have exclusive possession,
control, and use of the equipment for the duration of the
lease. The lease shall further provide that the authorized
carrier lessee shall assume complete responsibility for the
operation of the equipment for the duration of the lease.
49 C.F.R. § 376.12(c)(1).
case, the Agreement contains such a provision, which provides
that, for the term of the Agreement, the Equipment is under
Transport Service's exclusive possession, use, and
control and that Transport Services assumes full
responsibility for the operation of said equipment as to all
third parties and the public at large. Agreement ¶ 3B.
The Agreement also provides, however, that Ross Wilson
Trucking could lease or “trip” other carriers
when the Equipment was not being used by Transport Services.
Id. ¶ 13B.Ross Wilson Trucking agreed to remove
any signs or other identification on the Equipment containing
Transport Services' name or motor carrier identification
number when Ross Wilson Trucking was not operating under
Transport Services' operating authorities or otherwise
operating in service of Transport Services pursuant to the
Agreement. Id. ¶ 13C.
Agreement addresses which party is required to provide the
INSURANCE. It is recognized that the United States Department
of Transportation and various other regulatory bodies require
the carrier under whose certificates or permits leased
Equipment is being operated to be responsible to the public
with respect to such Equipment while the same is being
operated under its authority. TRANSPORT SERVICES will file,
or has on file, with the United States Department of
Transportation and any other regulatory body having
jurisdiction over its operations, evidence of insurance in
such amounts as may be required by law or regulation of said
agencies, and will continuously maintain in effect insurance
in such amount.
CONTRACTOR shall secure, at its sole expense, insurance in
the minimum amount of $1, 000, 000 combined single limits
covering bob-tail and dead-heading on the Equipment leased
herein and shall furnish TRANSPORT SERVICES with a
certificate naming TRANSPORT SERVICES as an additional
insured thereunder. In addition, CONTRACTOR will carry, at
its sole expense, its own insurance coverage on the Equipment
leased for collision, fire, theft and other occurrence or
catastrophe, and TRANSPORT SERVICES shall be named as an
insured thereunder also.
¶ 7G. In addition, the Agreement requires that Ross
Wilson Trucking carry, at its own expense, Commercial General
Liability Coverage, Commercial Automobile coverage, and
Workers' Compensation Coverage. Id. ¶ 8A.
the Agreement contains the following indemnification
provision, which Defendants assert constitutes an
As between TRANSPORT SERVICES and CONTRACTOR only, without
any regard or effect upon the obligations of TRANSPORT
SERVICES to any third party, CONTRACTOR agrees to be
responsible for, indemnify, defend and hold TRANSPORT
SERVICES harmless from any and all claims of any nature,
losses, personal injury, death, and/or damage to cargo or
other property, and/or claim for any such loss or occurrence
which may arise from or in connection with the operations
performed or to be performed pursuant to this Agreement,
however arising, without regard to fault or negligence on the
part of CONTRACTOR. This is to include, but is not limited
to, attorneys' fees and any other expenses incurred in
defending or prosecuting any claim arising as a result of any
of the above or operation of the Equipment leased herein.
Id. ¶ 14.
Plaintiff Issues Non-Trucking Use Policy
issued a Non-Trucking Use policy of Commercial Auto Insurance
to the “Independent Contractors of Transport Services
of Sullivan IL, LLC” for the policy period November 1,
2015 to November 1, 2016 (the Policy). Compl. ¶ 16.
There is no dispute that Ross Wilson Trucking is an
independent contractor of Transport Services. See
Pl. Mem. at 2 (d/e 34-1).
Policy provides for coverage as follows:
pay all sums an “insured” legally must pay as
damages because of “bodily injury” or
“property damage” to which this insurance
applies, caused by an “accident” and resulting
from the ...