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Mid-Century Insurance Co. v. Pizza by Marchelloni

United States District Court, C.D. Illinois, Peoria Division

January 12, 2018

MID-CENTURY INSURANCE COMPANY, Plaintiff,
v.
PIZZA BY MARCHELLONI, ESTATE OF JOSE PADILLA and ESTATE OF LYNSE STOKES, deceased, by SHANA KRIDNER, Defendants. ESTATE OF LYNSE STOKES, deceased, by SHANA KRIDNER, Counter-Plaintiff,
v.
PIZZA BY MARCHELLONI, MID-CENTURY INSURANCE COMPANY, Counter-Defendants. ESTATE OF LYNSE STOKES, deceased, by SHANA KRIDNER, Third-Party Plaintiff,
v.
AUSTIN HOUGH, Third-Party Defendant.

          ORDER & OPINION

          JOE BILLY McDADE United States Senior District Judge

         This matter is before the Court on “Mid-Century Insurance Company's, Improperly Named As ‘Farmers Insurance, ' Motion To Dismiss Estate Of Lynse Stokes' Amended Counterclaim” (Doc. 33). For the reasons given below, the motion is GRANTED. The Amended Counterclaims (Doc. 31) are dismissed.

         BACKGROUND

         This case arises out of a tragic car accident that occurred on or about September 4, 2016. Jose Padilla (“Padilla”) was driving an automobile northbound on Livingston County Road 1900 East in Livingston County, Illinois. At that time, Padilla was delivering pizza for Pizza by Marchelloni (“Marchelloni”). Lynse Stokes was a passenger in the vehicle being driven by Padilla. At some point, Padilla attempted to turn left onto Illinois Route 116, but in doing so, drove into the path of Leah Metz's vehicle, which was travelling eastbound on Route 116. A collision occurred between the vehicles that resulted in the deaths of Stokes and Padilla.

         The Estate of Stokes, maintained by Shana Kridner, brought a state civil action in the Circuit Court of the Eleventh Judicial Circuit of Illinois in Livingston County against the Estate of Padilla and Marchelloni alleging Wrongful Death against both defendants and survival counts for the pain and suffering of Lynse Stokes prior to her death. (Doc. 3-2).

         Plaintiff, Mid-Century Insurance Company (“Mid-Century”), is a California insurance company that extended an insurance policy to Marchelloni and Dale Stokes, which was in effect at the time of the collision. The policy had a businessowners' liability coverage provision that stated:

We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury”, “property damage”, “personal injury” or “advertising injury” to which this insurance applies. We will have the right and duty to defend the insured against any “suit” seeking those damages. However, we will have no duty to defend the insured against any “suit” seeking damages for “bodily injury”, “property damage”, “personal injury”, or “advertising injury” to which this insurance does not apply.

(Doc. 3 at 4, Doc. 3-1 at 96). However, the policy went on to list specific exclusions:

         B. Exclusions

         1. Applicable To Business Liability Coverage

         This insurance does not apply to:

g. Aircraft, Auto Or Watercraft “Bodily injury” or “property damage” arising out of the ownership, maintenance, use or entrustment to others of any aircraft, “auto” or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and “loading or unloading”.

(Doc. 3-1 at 98, 100).

         Mid-Century claims it has no duty to defend or indemnify Marchelloni or the Estate of Padilla in any suit seeking damages for bodily injury to which the policy does not apply, and that the underlying lawsuit here is such a suit that is not covered by the policy due to the exclusion clause referred to above. (Doc. 3 at ¶¶21-27). Mid-Century specifically requests that this Court find no coverage is available under the Mid-Century policy at issue for the Estate of Padilla or ...


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