Colton v. Swain
Decision Date | 24 April 1973 |
Docket Number | No. 73 C 37.,73 C 37. |
Citation | 358 F. Supp. 859 |
Parties | Robert COLTON, Plaintiff, v. John B. SWAIN et al., Defendants and Third Party Plaintiffs, v. PACIFIC INDEMNITY COMPANY, a corporation, Third Party Defendant. |
Court | U.S. District Court — Northern District of Illinois |
David P. Schippers and Michael J. McArdle Schippers, Betar, Lamendalle & O'Brien, Chicago, Ill., for plaintiff.
John Bowman, State's Atty. for Du Page County, Wheaton, Ill., for John B. Swain and others.
Jay S. Judge, Chicago, Ill., for Pacific Indemnity Co.
This cause comes on the third party defendant's motion to strike and dismiss the third party complaint.
The complaint in the instant action sets forth a claim for redress of an alleged civil rights violation pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331 and 1343. The plaintiff is Robert Colton, a citizen of the United States and a resident of Naperville, Illinois. The defendants are John B. Swain, Gerald Smithson, Elmer P. Alsip, Paul Sahs, Clyde Motter, Daniel Leonard, Allen MacKechie, and Edwin Simpson, all of whom during the time in question were duly appointed and acting police officers and deputy sheriffs of the Du Page County Sheriff's Office.
In the complaint the plaintiff alleges, inter alia, the following facts:
The plaintiff claims that the above described actions of the defendants deprived him of his civil rights in violation of 42 U.S.C. § 1983. The plaintiff seeks damages in the amount of $50,000 plus the cost of maintaining the instant suit.
The defendants have filed a third party complaint pursuant to Rule 14 of the Federal Rules of Civil Procedure against Pacific Indemnity Company ("Pacific"), the third party defendant. The third party plaintiff seeks a declaration of the respective rights and duties regarding the comprehensive general liability insurance policy issued to them; an injunction requiring Pacific to assume the defense of the third party plaintiffs; to pay for any damages which may result from the instant action, plus the cost of defending this action. The defendants in the third party complaint allege the following facts, inter alia:
Pacific Indemnity Company, the third party defendant, in support of its motion to strike and dismiss the third party complaint, contends:
The third party plaintiffs contend that the instant motion is without merit.
It is the opinion of this Court that the third party defendant's motion to strike and dismiss the third party complaint should be denied.
The third party defendant contends that the third party complaint is not proper because it violates: (a) the no action clause of the insurance contract,1 (b) the Illinois prohibition against direct action against an insurer, and (c) the spirit of speed and economy of cases on which Rule 14 is predicated and because it may interject prejudice in the instant case.
It is well settled that a no action clause in an insurance policy similar to the one in dispute in the instant action is not a bar to a third party complaint against the insurer. Vaughn v. United States, 225 F.Supp. 890 (W.D.Tenn. 1964); Jordan v. Stephens, 7 F.R.D. 140 (W.D.Mo.1945). The object of Rule 14 is to facilitate litigation, to save costs, to bring all of the litigants into one proceeding, and to dispose of an entire matter without the expense and labor of many suits and many trials. For this Court to give effect to such a no-action clause would merely result in a duplication of litigation and place additional burdens on an already over burdened court system. Further, since the third party defendant has allegedly breached its contract by refusing to defend the third party plaintiff, the third party defendant should not be permitted to interpose as a bar to this action the contractual provisions of a contract it has allegedly repudiated.
The Illinois prohibition against direct action against an insurer is not a bar to a third party complaint under Rule 14. Since the original complaint alleges a federal cause of action based on violations of a federal statute, the third party complaint is ancillary to the primary claim and not necessarily dependent on state law or policy for its determination. See Revere Copper and Brass Incorporated v. Aetna Casualty and Surety Company, 426 F.2d 709 (5th Cir. 1970). Further, federal courts have allowed third party complaints under Rule 14...
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...F.2d 1375Coltonv.Swain73-1693UNITED STATES COURT OF APPEALS Seventh Circuit4/18/74 N.D.Ill., 358 F.Supp. 859 ...