United States District Court, C.D. Illinois
SCHANZLE-HASKINS UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Plaintiffs Judy Reimer and
Dennis Reimer’s Motion for Voluntary Dismissal (d/e 23)
(Motion to Dismiss) and Defendant Foremost Insurance Company,
Grand Rapids, Michigan’s (Foremost) Objection to
Plaintiffs’ Motion to Voluntarily Dismiss Under
F.R.C.P. 41(a)(2) and Motion to Bar New Claims for Additional
Damages (d/e 24) (Motion to Bar). The parties have consented
to proceed before this Court. Consent to the Exercise of
Jurisdiction by a United States Magistrate Judge and
Reference Order entered November 13, 2018 (11). For the
reasons set forth below, the Motion to Dismiss is DENIED and
the Motion to Bar is ALLOWED in part. The Plaintiffs are
barred from pursuing claims in this case for damages that
occurred after the alleged term of insurance policy ended on
September 6, 2017. The Court, however, will not dismiss the
case with prejudice and will not rule on the admissibility of
evidence at trial at this time.
Judy and Dennis Reimer allege that Foremost issued an
insurance policy to them covering damage to mobile homes
(Mobile Homes) that they owned. Plaintiffs allege the
insurance policy (Policy) was effective from September 6,
2016 through September 6, 2017 (Policy Year). Second
Amended Complaint for Declaratory Judgment (d/e 13)
(Complaint), ¶ 1. The declaration page of the
Policy attached to the Complaint confirms that the Policy was
effective for Policy Year. Amended Complaint (d/e
6), Exhibit A, Policy Declaration Page.
allege the Mobile Homes suffered damaged. Plaintiffs further
allege that they had a history of purchasing insurance from
Foremost “for a lengthy period of time.”
Complaint, ¶¶ 3-9.
allege that Foremost made an offer of payment for the
damages. Complaint, ¶ 10. During discovery,
Foremost disclosed that the Reimers filed four claims on the
Policy during the Policy Year: Claim No. 3008001038-1 with a
reported claim of loss date of December 21, 2016, Claim No.
3007995397-1-1 with a reported claim of loss date of February
4, 2017, Claim No. 3008279283-1-1 with a reported claim of
loss date of February 15, 2017, and Claim No. 3008840644-1-4
with a reported claim of loss date of June 13, 2017.
Motion to Bar, Exhibit C, Defendant’s Rule
26(a)(2) Expert Disclosures, at 3 (collectively Policy
Year Damage Claims).
October 27, 2017, Foremost’s adjuster inspected the
Mobile Homes and determined that the losses for the Policy
Year Damage Claims totaled $22, 589.86. On January 22, 2018,
Foremost acknowledged coverage of the $22, 589.86 loss and
offered to pay this sum in full, less the $250 per mobile
home deductible under the Policy. Motion to Bar,
Exhibit A, Letter from Foremost Counsel to Reimers’
Counsel dated January 22, 2018.
allege that the offer did not approach the actual amount of
damages. Plaintiffs allege that the damages to the Mobile
Homes exceeded $172, 000. Complaint, ¶ 11.
Plaintiffs ask the Court for a declaratory judgment on the
correct amount of the damages payable under the Policy.
Complaint, Prayer for Relief.
now state that other damages occurred to the Mobile Homes
after September 6, 2017, after the Mobile Homes were moved
off of lots at a mobile home park (Post-Policy Year Damage
Claims). Plaintiffs state that they wish to litigate the
Post-Policy Year Damage Claims with the Policy Year Damage
Claims alleged in the Complaint. Plaintiffs state that the
time has passed to amend the pleadings in this case.
Plaintiffs therefore seek to dismiss this case without
prejudice and file a new case that would include the
Post-Policy Year Damages. Plaintiffs’ Brief in
Opposition to Defendant’s Motion to Bar Claims for
Additional Damages (d/e 26), ¶¶ 1, 2, 5, 6,
objects to dismissal because it argues that it would be
unfairly prejudiced. Foremost has expended time and energy to
prepare for trial on the Policy Year Damage Claims alleged in
the Complaint. Foremost has engaged in extensive discovery on
these claims. Foremost has also retained an expert to
evaluate the Policy Year Damage Claims alleged in the
Complaint. Discovery is complete and the case is ready for
trial. Foremost objects to starting all over with new claims
not included in the Complaint. See Motion to Bar, at
8-11, Exhibit C, Defendant’s Rule 26(a)(2) Expert
Court agrees with Foremost that dismissal now without a
decision on the merits of the Policy Year Damage Claims would
unfairly prejudice Foremost. Foremost has prepared to
litigate the proofs of claims submitted during the Policy
Year and is entitled to a resolution of those claims.
Foremost has gone to the expense of hiring an expert and
deposing a number of individuals. Foremost would be
prejudiced if it could not secure a resolution of the Policy
Year Damage Claims alleged in the Complaint. See Fluker
v. County of Kankakee, 945 F.Supp.2d 972, 982-83 (C.D.
Plaintiffs argue that Foremost will not be prejudiced because
it can use all the discovery already conducted and its expert
witness in the new action. The Plaintiffs argue that
Foremost’s costs will not be increased. The Court
disagrees. Any new action will be a much more complicated
case. Plaintiffs seek to recover both Policy Year Damage
Claims and Post-Policy Year Damage Claims. The Post-Policy
Year Damages occurred after the Policy Year, and so, after
the Policy expired. The Plaintiffs would need to add claims
based on the insurance policy that became effective after the
Policy Year, either a renewal policy issued by Foremost or a
new policy issued by another insurer (Successor Policy).
Adding claims under a Successor Policy will complicate this
case. Additional discovery may be necessary to determine the
parties’ performance under the Successor Policy.
Foremost may need to secure a new expert witness report
regarding the damages involved in the Post-Policy Year Damage
Claims. Foremost will be required to incur additional costs
if the Plaintiffs add these new claims to this case. In light
of this prejudice, the Court will not dismiss this case
without prejudice at this juncture.
Court will also bar Plaintiffs from pursuing the Post-Policy
Year Damage Claims in this case. Allowing Plaintiffs to add
claims now would delay resolution of this case and increase
costs on the parties. The parties will go forward with the
Plaintiffs’ Policy Year Damage Claims to the Mobile
Homes. The Plaintiffs are barred from litigating their
Post-Policy Year Damages Claims in this case.
Plaintiffs do not appear to be prejudiced by excluding their
Post-Policy Year Damage claims from this case. The events
that caused the Post-Policy Year Damages appear to be
separate transactions since they did not occur during the
Policy Year. The Plaintiffs, therefore, may be able to bring
a separate action against the insurer that issued the
Successor Policy, whether Foremost or some other insurer.
Resolution of Foremost’s liability under the Policy for