Cincinnati Specialty Underwriters Ins. Co. v. Chicagoland Emergency Vehicle Show, LLC
| Decision Date | 28 March 2022 |
| Docket Number | 19 C 7688 |
| Citation | 594 F.Supp.3d 1039 |
| Parties | CINCINNATI SPECIALTY UNDERWRITERS INSURANCE COMPANY, Plaintiff, v. CHICAGOLAND EMERGENCY VEHICLE SHOW, LLC et al., Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
Kevin Allan Titus, Litchfield Cavo LLP, Chicago, IL, for Plaintiff.
Bernard K. Weiler, Mickey, Wilson, Weiler, Renzi & Andersson, Sugar Grove, IL, Richard T. Petesch, Mickey, Wilson, Weiler, Renzi, Lenert & Julien, P.C., Sugar Grove, IL, for Defendant Chicagoland Emergency Vehicle Show, LLC.
Stephen H. DiNolfo, Ottosen DiNolfo Hasenbalg & Castaldo, Ltd., Naperville, IL, John Edward Motylinski, Ottosen Britz Kelly Cooper Gilbert & DiNolfo, Ltd., Naperville, IL, for Defendants Village of Oswego.
Edward John Manzke, The Collins Law Firm, Naperville, IL, for Defendant Michael Rafferty.
Virginia M. Kendall, United States District Judge Plaintiff, Cincinnati Specialty Underwriters Insurance Company ("CSU"), filed this suit against Chicagoland Emergency Vehicle Show, LLC ("CEVS"), seeking declaratory judgment that it has no duty to defend or indemnify CEVS for a lawsuit filed against CEVS for alleged hearing loss suffered by a spectator at a municipal event. The only dispute between the parties is whether the "flash bang" device that was detonated as part of a demonstration falls within the "fireworks" exception contained within the policy. Before the Court is Plaintiff's motion for summary judgment. (Dkt. 73). For the following reasons, Plaintiff's motion [73] is granted.
In July 2019, Michael Rafferty filed a complaint in Kane County Circuit Court against CEVS, the Village of Oswego ("Oswego"), the Kendall County Special Response Team, a task force of the Office of the Sheriff of Kendall County, Oswego Firefighters Local #4773 ("Local #4773"), and the Oswego Fire Protection District ("OFPD"). (Dkt. 1 at ¶ 14). Rafferty filed a First Amended Complaint ("Underlying Lawsuit") on October 2, 2019, against CEVS, Oswego, #4773, OFPD, and Kendall County Sheriff Dwight Baird. (Dkt. 1-1). In the Underlying Lawsuit, Rafferty claims that CEVS acted negligently and caused him physical injury, "permanent tinnitus, hearing loss, pain and suffering, medical expenses and interfered with his ability to enjoy life." (Dkt. 1-1 at ¶¶ 23–30). He claimed these injuries resulted from the detonation of a "flash bang" device that was part of a demonstration at the 21st Annual Chicagoland Emergency Vehicle Show in downtown Oswego, Illinois ("the Show"). (Dkt. 1 at ¶ 14; Dkt. 1-1 at ¶¶ 23–30).
CSU in turn filed a lawsuit in this Court seeking Declaratory Judgment against CEVS as well as Oswego, #4773, OFPD, and Kendall County Sheriff Dwight Baird, with Mr. Rafferty joined as a necessary party. (Dkt. 1). Defendants Oswego, #4773, OFPD, and Kendall County Sheriff Dwight Baird were voluntarily dismissed prior to the filing of this motion. (Dkt. 35; Dkt. 48; Dkt. 72). The below facts are admitted by both parties as accurately representing the claims made by Rafferty in the Underlying Lawsuit. (Dkt. 75; Dkt. 79).
On Saturday, August 4, 2018, Mr. Rafferty happened upon the Show when driving in downtown Oswego. (Dkt. 75 at ¶ 13; Dkt. 79 at ¶ 13; Dkt. 1-1 at ¶ 12). The Show took place on August 3rd and 4th, 2018, and featured displays of emergency vehicles and demonstrations of rescue operations, firefighting, and other safety exhibits. (Dkt. 75 at ¶¶ 11, 13; Dkt. 79 at ¶¶ 11, 13; Dkt. 1-1 at ¶¶ 8–9). The Show also hosted children's activities and provided food and souvenirs. (Dkt. 75 at ¶ 12; Dkt. 79 at ¶ 12; Dkt. 1-1 at ¶ 9). At the Show, the Special Response Team of the Kendall County Sheriff's Department ("Special Response Team") was scheduled to demonstrate a "high risk SWAT extraction". (Dkt. 75 at ¶ 12; Dkt. 79 at ¶ 12; Dkt. 1-1 at ¶ 11). When Mr. Rafferty noticed the Show taking place, he parked his car and walked along to view displays at the Show. (Dkt. 75 at ¶ 13; Dkt. 79 at ¶ 13; Dkt. 1-1 at ¶ 12–14).
Mr. Rafferty noticed a "large combat or military vehicle" as he was walking and understood some sort of demonstration to be taking place. (Dkt. 75 at ¶ 13; Dkt. 79 at ¶ 13; Dkt. 1-1 at ¶ 14–17). He walked towards the demonstration to attain a better view and encountered no barricades, officers, or employees at the show preventing him from moving closer to the demonstration. (Dkt. 75 at ¶ 13; Dkt. 79 at ¶ 13; Dkt. 1-1 at ¶¶ 16–18). There were also no warnings displayed as he neared the demonstration. (Id. ).
As Mr. Rafferty approached the Special Response Team's demonstration, he observed Special Response Team members move towards a van on the street where Mr. Rafferty was walking. (Dkt. 75 at ¶ 14; Dkt. 79 at ¶ 14; Dkt. 1-1 at ¶ 19). Without warning, the Special Response Team detonated two Noise Flash Diversionary Devices, often referred to as flash bang devices, on the van. (Id. ). The detonation caused "successive and extremely loud explosions and flashes of light." (Id. ). The explosions momentarily blinded Mr. Rafferty, and he experienced loud ringing in his ears. (Dkt. 75 at ¶ 14; Dkt. 79 at ¶ 14; Dkt. 1-1 at ¶¶ 19–22). Mr. Rafferty felt disoriented and departed the Show after the detonations took place. (Id. ). The Underlying Lawsuit describes flash bang devices as "inherently dangerous explosive devices originally developed for military use that produce high intensity light and extremely loud impulse noise." (Dkt. 1-1 at ¶ 20).
CSU issued an insurance policy to CEVS ("the Policy") which supplied commercial general liability coverage, effective from August 3rd through August 6th, 2018. (Dkt. 75 at ¶ 18; Dkt. 79 at ¶ 18; Dkt. 1-2). The Policy included a duty to defend and indemnify CEVS for bodily injury or property damage under covered circumstances. (Dkt. 75 at ¶ 19; Dkt. 79 at ¶ 19). The pertinent portion of the Policy is an exclusion related to "Fireworks or Pyrotechnics" ("the Fireworks Exclusion"). The exclusion states the Policy "does not apply to ‘bodily injury’, ‘property damage’ or ‘personal and advertising injury’ ... [a]rising out of the ownership, operation, maintenance, possession, use of, manufacturing, distribution, selling, servicing or storing of any fireworks or pyrotechnics by the insured or any other person or organization; or ... [i]ncluded within the ‘products/completed operations hazard’ with respect to fireworks or pyrotechnics." (Dkt. 1-2; Dkt. 75 at ¶ 24; Dkt. 79 at ¶ 24). The exclusion defines "fireworks" as "a device consisting of explosives and combustibles set off to generate colored lights, smoke or noise." (Id. ).
Summary judgment is proper when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56. In determining whether a genuine issue of material fact exists, the Court must view the evidence and draw all reasonable inferences in favor of the party opposing the motion. See Bennington v. Caterpillar Inc. , 275 F.3d 654, 658 (7th Cir. 2001) ; see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, the Court will "limit its analysis of the facts on summary judgment to evidence that is properly identified and supported in the parties’ [Local Rule 56.1] statement." Bordelon v. Chicago Sch. Reform Bd. of Trustees , 233 F.3d 524, 529 (7th Cir. 2000).
In Illinois, "the interpretation of an insurance policy is a question of law that is properly decided by way of summary judgment." JAR Labs. L.L.C. v. Great Am. E & S Ins. Co. , 945 F. Supp.2d 937, 942 (N.D. Ill. 2013) (citing BASF AG v. Great Am. Assur. Co. , 522 F.3d 813, 818–19 (7th Cir. 2008) ). A court determines whether an insurer has a duty to defend by examining the underlying complaint and the language of the insurance policy. Gen. Agents Ins. Co. of Am., Inc. v. Midwest Sporting Goods Co. , 215 Ill.2d 146, 154–55, 293 Ill.Dec. 594, 828 N.E.2d 1092 (2005). If the alleged facts in the underlying complaint potentially come within policy coverage, a duty to defend exists, "even if the allegations are groundless, false, or fraudulent." United States Fidelity & Guar. Co. v. Wilkin Insulation Co. , 144 Ill.2d 64, 73, 161 Ill.Dec. 280, 578 N.E.2d 926 (1991). "The burden of proving that a claim falls within an exclusion rests squarely on the insurer...." Hurst-Rosche Engineers, Inc. v. Commercial Union Ins. Co. 51 F.3d 1336, 1342 (7th Cir. 1995). The Court bears in mind that Nat'l Cas. Co. v. McFatridge , 604 F.3d 335, 338 (7th Cir. 2010).
The CSU moves for summary judgment seeking declaratory relief. Specifically, the CSU argues the Fireworks Exclusion releases the CSU from any duty to indemnify or defend CEVS in the Underlying Lawsuit. (Dkt. 74). The key issue is whether the Fireworks Exclusion applies to the injuries Mr. Rafferty alleged in the Underlying Lawsuit. The parties do not dispute that fireworks are defined in the exclusion as "a device consisting of explosives and combustibles set off to generate colored lights, smoke or noise." (Dkt. 75 at ¶ 24; Dkt. 79 at ¶ 24). The parties also stipulate that the Underlying Lawsuit asserts a flash bang device was used at the demonstration where Mr. Rafferty's alleged injuries occurred. (Dkt. 75 at ¶ 14; Dkt. 79 at ¶ 14). Neither party disputes that if the flash bang device qualifies as a firework, its use alone would preclude coverage. The parties disagree as to whether the definition for fireworks covers a flash bang device, and specifically the flash bang device allegedly detonated on August 4, 2018, at the Show. (Dkt. 74; Dkt. 78; Dkt. 80).
The CSU argues that flash bang devices are fireworks as defined...
To continue reading
Request your trial