Allied World Nat'l Assurance Co. v. City of Chi.
| Decision Date | 16 November 2015 |
| Docket Number | No. 14 C 8343,14 C 8343 |
| Citation | 146 F.Supp.3d 935 |
| Parties | Allied World National Assurance Company, Plaintiff, v. City of Chicago, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
Robert Sheppard Marshall, Ian Andrew Cooper, Marko Andrew Duric, Nicolaides Fink Thorpe Michaelides Sullivan LLP, Chicago, IL, for Plaintiff.
Thomas A. Doran, Attorney at Law, Rey Arnaldo Phillips Santos, City of Chicago Department of Law, Chicago, IL, for Defendant.
Virginia M. Kendall
On November 8, 2010, Carlo Kintanar died after being involved in a motorcycle accident in the 2600 block of South Damen Avenue in Chicago, Illinois. Jane Kintanar, Carlo's wife, sued the City of Chicago in the Circuit Court of Cook County, alleging that Carlo's accident resulted from a deteriorated roadway, improper placement of traffic signage, and a failure to warn of rough terrain. See Kintanar v. City of Chicago , No. 10 L 13029. The City seeks a defense in the Kintanar lawsuit furnished by Plaintiff Allied World National Assurance Company, an insurer, pointing to an insurance policy between Allied World and Highway Safety Corporation, the entity responsible for delivery and setup of traffic control devices. The City contends that it qualifies as an additional insured within the provisions of that policy. Allied World has so far denied the City's request for a defense. After the filing of the Kintanar lawsuit, Allied World instituted this action against the City, seeking a declaratory judgment pursuant to 28 U.S.C. § 2201(a)
that it owes neither a duty to defend nor indemnify the City in the underlying suit. (Dkt. No. 10.)
Allied World now moves for summary judgment on both counts of its complaint and seeks a determination that it owes no duty to defend the City as a matter of law and that, without a duty to defend, there can be no duty to indemnify. The City cross-moved for partial summary judgment, contending that Allied World must defend the City in the Kintanar lawsuit and that any determination on the duty to indemnify is premature. For the reasons that follow, the Court grants the City's motion for partial summary judgment (Dkt. Nos. 20, 21, & 22) and denies Allied World's motion for summary judgment (Dkt. Nos. 23, 24, & 25). The Court concludes that Allied World must defend the City in the Kintanar lawsuit pursuant to the insurance policy in play. The Court additionally dismisses Count II of Allied World's declaratory judgment action without prejudice.1
As a threshold matter, the Court notes that both parties failed to comply with Northern District of Illinois Local Rule 56.1
, intermittently, when responding to the other's factual statements. Local Rule 56.1(b)(3)(B) requires parties to file responses to “each numbered paragraph in the [opposing] party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon.” Cracco v. Vitran Exp., Inc. , 559 F.3d 625, 632 (7th Cir.2009) (quoting L.R. 56.1(b)(3)(B) ). The Court may disregard statements and responses that do not properly cite to the record, see
.
L
.
C
. , 401 F.3d 803, 809–10 (7th Cir.2005), and disputes are not adequately created “by evasive denials that do not fairly meet the substance of the material facts asserted.” Bordelon v. Chicago Sch. Reform Bd. of Trs. , 233 F.3d 524, 528 (7th Cir.2000). Both parties are guilty of evasive, overarching denials of some of the other's statements of fact without proper evidentiary support. The Court therefore deems admitted those facts which are disputed but unsupported. See
–
Mart Stores, Inc. , 770 F.3d 644, 648–49 (7th Cir.2014) ().
Additionally, Allied World objects to a number of the City's statements of fact regarding the setup of the traffic control devices pertinent to the underlying action, arguing that they are inadmissible because they are supported by the testimony of individuals who were not present at the work site the day of the setup. The Court summarily rejects this group of objections. Although testimony and affidavits must be based on personal knowledge to be admissible, see Ledbetter v. Good Samaritan Ministries , 777 F.3d 955, 957 (7th Cir.2015)
, Federal Rule of Evidence 406 provides that “[e]vidence of... an organization's routine practice may be admitted to prove that on a particular occasion the...organization acted in accordance with the...routine practice.” An individual may therefore have personal knowledge of a situation without offering eyewitness testimony. Accordingly, the evidence on which the City bases a number of its most integral statements of fact is admissible and Allied World's general objection is more properly classified as one of weight and credibility than admissibility.
The following facts are undisputed unless expressly noted.
On February 1, 2004, the City and Highway Safety entered into a contract for the “Rental and Placement of Traffic Control Devices” (“the Contract”), requiring Highway Safety to provide signs, barricades, and traffic arrow boards at the City's request. (Def. 56.1 St. ¶ 8; Traffic Control Contract.) The City and Highway Safety continually extended the term of the Contract until July 31, 2010, at which point the parties continued a working relationship in the absence of the Contract. (Def. 56.1 St. ¶¶ 9-11.) The Contract required Highway Safety to “furnish, deliver, place and pick up,...various Traffic Control Devices on a rental basis, all in accordance with the terms and conditions” of the contract. (Pl. 56.1 St. ¶ 29.) The Contract additionally required Highway Safety to maintain a liability insurance policy naming the City as an additional insured for “liability arising directly or indirectly from the work” of Highway Safety. (Pl. 56.1 St. ¶ 30; Def. 56.1 St. ¶ 13.) Highway Safety was obligated to provide a training program to its employees on safety and worksite hazards associated with the traffic control devices. (Def. 56.1 St. ¶ 12.)
The Contract required Highway Safety to “furnish, deliver, place and pick-up” traffic control devices on a rental basis. (Def. 56.1 St. ¶ 15.) Regarding equipment placement and reconfiguration, the Contract mandated that Highway Safety be available at any time to place or reset any traffic control device on a City street. (Traffic Control Contract at 52-53.) The Contract additionally required Highway Safety to personally superintend any work done at any site. (Def. Stmt. of Add'l Facts ¶ 3.)
On November 1, 2010, the City began a water management project near 2608 South Damen Avenue in Chicago, Illinois. (Pl. 56.1 St. ¶ 11.) The portion of Damen Avenue near the City's worksite is a two-way street with two lanes each going North and South. (Pl. 56.1 St. ¶ 6.) To protect the City's workers on Damen Avenue, Terrence Sanchez, a City employee in the Department of Water Management, ordered Highway Safety to provide traffic control devices for placement near the worksite. (Pl. 56.1 St. ¶ 31; Def. 56.1 St ¶¶ 25-26, 32.) Sanchez had no training or experience on traffic safety. (Def. 56.1 St. ¶ 31.) The City requested two directional arrow boards, 25 lighted barricades, and four signs, two of which were left to Highway Safety's discretion. (Pl. 56.1 St. ¶ 32; Def. 56.1 Resp. ¶¶ 32, 35.) These items were commonly used for lane closures. (Def. 56.1 St. ¶ 36.) Collectively, these traffic control devices were placed north of 2608 South Damen in an effort to redirect traffic around the City's project. (Pl. 56.1 St. ¶¶ 12-13.) There were no traffic control devices at the precise point of the ensuing accident. (Pl. 56.1 St. ¶ 14.)
Sanchez testified that he made requests for traffic control devices for particular locations on City streets and that part of the request pertained to the size of the area needed for construction. (Def. 56.1 St. ¶¶ 28-29.) Allied World suggests that the City retained ultimate control over the selection and placement of the traffic control devices, but Sanchez testified that the extent of the City's instruction to Highway Safety involved telling Highway Safety where the City's team was working and how much room it needed. (Pl. 56.1 St. ¶¶ 33-34; Def. 56.1 St. ¶ 34; Def. Stmt. of Add'l Facts ¶ 2; Sanchez Dep. at 16.) Of course, if a City employee did not approve of Highway Safety's placement of the devices, he or she could tell Highway Safety to reconfigure the setup. (Pl. 56.1 St. ¶¶ 35-37; Dkt. No. 21 Ex. C-1, Traffic Control Contract at 53.) The order forms permitted Highway Safety to deliver and place traffic control devices without consulting a City employee. (Def. 56.1 St. ¶ 33; Dkt. No. 21, Ex. 10.)
Michael Calderone, an Assistant District Superintendent for the City, testified that he never ordered either a specific amount or type of traffic control device for any project. (Def. 56.1 St. ¶¶ 37, 41.) Calderone stated that the City's water management unit does not set up traffic control devices, does not instruct Highway Safety how or where to set them up, and does not interact with Highway Safety while it places the devices. (Def. 56.1 St. ¶¶ 42-44; Calderone Dep. at 90-91.) Similarly, Claude Driver, a water repair employee for the City, testified that contractors generally erect the sawhorses and that the City did not erect the arrow boards near the site of the accident. (Def. 56.1 St. ¶¶ 48-49, 51.)
Carlo Kintanar was driving his motorcycle southbound on Damen Avenue on November 8, 2010. (Pl. 56.1 St. ¶ 7.) Neither the City nor Highway Safety had yet removed the traffic control devices near the City's water management construction. While driving south,...
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