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Mid-Century Insurance Co. v. Pizza By Marchelloni

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

February 23, 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 “Third-Party Defendant Austin Hough's Motion To Dismiss Estate Of Stokes' Third-Party Complaint” (Doc. 42). For the reasons given below, the motion is GRANTED. The Amended Third-Party Complaint (Doc. 30-2) is dismissed.

         LEGAL STANDARDS

         In ruling on a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), “the court must treat all well-pleaded allegations as true and draw all inferences in favor of the non-moving party.” In re marchFIRST Inc., 589 F.3d 901, 904 (7th Cir. 2009). The pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To survive a motion to dismiss, the challenged pleading must contain sufficient detail to give notice of the claim, and the allegations must “plausibly suggest that the [non-movant] has a right to relief, raising that possibility above a ‘speculative level.' ” EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, (2007)). The plausibility standard requires enough facts “to present a story that holds together, ” but does not require a determination of probability. Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010). Though detailed factual allegations are not needed, a “formulaic recitation of a cause of action's elements will not do.” Twombly, 550 U.S. at 545, 127 S.Ct. 1955. Conclusory statements and labels are insufficient; enough facts must be provided to “state a claim for relief that is plausible on its face.” Alexander v. United States, 721 F.3d 418, 422 (7th Cir. 2013) (citation and internal quotation marks omitted). Lastly, when a plaintiff pleads facts demonstrating that he has no claim, dismissal of the complaint, in this case counterclaims, is proper. McCready v. eBay, Inc., 453 F.3d 882, 888 (7th Cir. 2006).

         BACKGROUND

         The full factual background of this case is available in this Court's Order & Opinion dated January 12, 2018 (Doc. 38). Essentially, the case arises out of a 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. A collision occurred 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”) 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 ...

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