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Southern Illinois Asphalt Company, Inc. v. Turubchuk

United States District Court, S.D. Illinois

January 23, 2018

SOUTHERN ILLINOIS ASPHALT COMPANY, INC., Plaintiff,
v.
LILIYA TURUBCHUK, Individually and as Personal Representative of the Estate of ALEKSEY TURUBCHUK, Deceased, VLADIMIR NEMTSOV, as Parent and Guardian of E. NEMTSOVA, a minor and V. NEMTSOV, a minor; LUDMILA NEMTSOVA, IRINA TURUBCHUK, LIBERTY MUTUAL FIRE INSURANCE COMPANY; CLARENDON NATIONAL INSURANCE COMPANY; LIBERTY INTERNATIONAL UNDERWRITERS, INC. and ACE AMERICAN INSURANCE COMPANY Defendants.

          MEMORANDUM AND ORDER

          STACI M. YANDLE, UNITED STATES DISTRICT JUDGE

         Pending before the Court is Defendant Liberty Mutual Fire Insurance Company's Motion for Summary Judgment (Doc. 48). Plaintiff Southern Illinois Asphalt Company filed a response (Doc 66). For the following reasons, the motion is GRANTED.

         Background

         In 2007, Liliya Turubchuk, individually and as personal representative of the estate of Aleksey Turubchuk, deceased; Vladimir Nemtsov, as parent and guardian of Elina Nemtsova and Vladislav Nemstov; Ludmila Nemstova; and Irina Turubchuk (the “underlying Plaintiffs”) filed a negligence action in this Court against E.T. Simonds Construction Company (“ETS”) and Southern Illinois Asphalt Company, Inc. (“SIAC”) seeking to recover for injuries resulting from a single vehicle accident that occurred on August 21, 2005 (“the underlying action”) (see Turubchuk v. E.T. Simonds Const. Co., 07-CV-216-WDS). The underlying Plaintiffs settled their claims against ETS and SIAC for the $1, 000, 000 policy limits of a Bituminous Casualty Insurance Company policy covering ETS and SIAC as a joint venture. The case was dismissed at the parties' request following the Court's approval of the minor settlement in February 2008 (see Turubchuk v. E.T. Simonds Const.Co., 07-CV-216-WDS).

         In May 2012, the underlying Plaintiffs filed a separate action seeking damages for ETS and SIAC's alleged failure to disclose their individual insurance policies in the underlying action (“the 2012 litigation”) (see Turubchuk et al v. E.T. Simonds Const. Co., et al, 12-CV-594-SMY-DGW). At the time of the underlying action, ETS and SIAC were also individual insured by several policies. However, neither SIAC nor ETS disclosed their individual policies to the underlying Plaintiffs (see Turubchuk et al v. E.T. Simonds Const. Co., et al, 12-CV-594-SMY-DGW at Docs. 106-8, 106-9).

         In the 2012 litigation, which is still pending, the underlying Plaintiffs maintain that if ETS and SIAC had disclosed their individual policies, they would not have settled for the “policy limits” of the only policy disclosed to them. They seek damages for intentional misrepresentation, fraudulent concealment, negligent misrepresentation and constructive fraud related to the failure of ETS and SIAC to disclose their individual insurance policies:

In Count I, the underlying Plaintiffs allege that they “sustained actual damages resulting from the misrepresentations of [SIAC and ETS], in an amount to be proven at trial”
In Count II, the underlying Plaintiffs allege that they “sustained actual damages resulting from the concealment of material facts by [SIAC and ETS], in an amount to be proven at trial.”
In Count III, the underlying Plaintiffs allege that they sustained actual damages resulting from the misrepresentations of [SIAC and ETS], in an amount to be proven at trial.”
In Count IV, the underlying Plaintiffs alleged that they sustained actual damages resulting from the misrepresentations of [SIAC and ETS], in an amount to be proven at trial.”

(See Turubchuk et al v. E.T. Simonds Const. Co., et al, 12-CV-594-SMY-DGW at Doc. 169, ¶¶ 36, 43, 50, and 56).

         On April 19, 2017, SIAC filed the instant declaratory judgment action, seeking a declaration that each of its individual policy insurers owed a defense and indemnity to SIAC in connection with the 2012 litigation. In the alternative, SIAC seeks a stay of this matter pending the resolution of the trial in the 2012 litigation.

         The Policy

         • Liberty Mutual Fire Insurance Company (Liberty Mutual”) Commercial General Liability Policy - provides a $2 million (each occurrence) limit. The ...


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