Moje v. Fed. Hockey League, LLC, Case No. 15-CV-8929

• Decision Date: 28 March 2019
• Docket Number: Case No. 15-CV-8929
• Parties: Kyler MOJE, Plaintiff, v. FEDERAL HOCKEY LEAGUE, LLC, National Casualty Company, The David Agency Insurance, Inc., and Don Kirnan, Defendants.
• Court: U.S. District Court — Northern District of Illinois

377 F.Supp.3d 907

Kyler MOJE, Plaintiff,

v.FEDERAL HOCKEY LEAGUE, LLC, National Casualty Company, The David Agency Insurance, Inc., and Don Kirnan, Defendants.

Case No. 15-CV-8929

United States District Court, N.D. Illinois, Eastern Division.

Signed March 28, 2019

Dean James Caras, Dean J. Caras P.C., Chicago, IL, for Plaintiff.

Terry Joseph Kirwan, Jr., Pro Hac Vice, Kirwan Law Firm, P.C., Syracuse, NY, for Defendant Federal Hockey League LLC.

MEMORANDUM OPINION & ORDER

Joan B. Gottschall, United States District Judge

The plaintiff, Kyler Moje ("Moje"), played professional, minor-league hockey for the Danville Dashers, a team in the now-defunct¹ Federal Hockey League ("the League"). Pl.'s Resp. to Def. National Casualty's SUMF ¶ 11. During a game on or about February 10, 2012, a player for the opposing team, the Akwesasne Warriors, allegedly struck Moje in the face with a hockey stick, thrusting the blade under Moje's helmet. Id. ¶ 12.

The pending motions for summary judgment in this diversity case raise choice of law questions and questions of substantive insurance law. For the following reasons, National Casualty Company's ("National Casualty") motion for summary judgment is granted, and The David Agency Insurance, Inc.'s ("The David Agency") motion for summary judgment is granted.

I. Background

Except where otherwise noted, the following facts are undisputed. On the night of his injury, Moje was taken to the hospital after medical personnel assessed his injury. Pl.'s Resp. to Def. National Casualty Statement of Undisputed Material Facts ("SUMF") ¶¶ 14–15, ECF No. 95. His injuries resulted in his being placed on the League's 30-day injured reserve ("IR") list. Id. ¶ 17. Fewer than six players were placed on that list each year. Id. ¶ 19.

A. Overview of Claims and Motions

Moje filed a separate lawsuit in this court against the League and the manufacturer of the helmet he was wearing. As detailed below, he obtained a default judgment against the League on June 11, 2014, in the amount of $ 800,000. Moje v. Fed. Hockey League, LLC [Moje I ], 792 F.3d 756, 758 (7th Cir. 2015). The League moved to set aside the default judgment in October 2014, but the motion was denied. Id. The League appealed, and the Seventh Circuit affirmed. Id. at 758–59.

Moje brought this action seeking declaratory relief that an insurance policy issued in June 2012 by defendant National Casualty Co. covers his injury. See Ans. to 2nd Am. Compl. Ex. A ("Policy"), ECF No. 13-1. The policy identifies defendant The David Agency Insurance, Inc. as the policy's producer, National Casualty as the insurer, and the Federal Hockey League ("the League") and its commissioner, defendant Dan Kirnan ("Kirnan"), as the insureds. Moje v. Fed. Hockey League LLC [Moje II ], 207 F.Supp.3d 833, 836 (N.D. Ill. 2016).

In count two of his Second Amended Complaint ("SAC"), Moje seeks a declaratory judgment against The David Agency. He alleges that the League communicated to The David Agency the type of insurance it needed to insure against the injury he sustained, that The David Agency knew what type of policy the League wanted, and that the League "was under the impression that the policy at issue covered personal injury losses, such as that sustained by plaintiff." SAC ¶¶ 38–41 (quotation in ¶ 41). Moje has since made clear his theory: that The David Agency negligently failed to procure the insurance the League wanted. See Slip Op. at 8. This court has not decided whether the policy covers Moje's claim.

Separate motions for summary judgment filed by National Casualty and The David Agency are before the court. National Casualty contends that Kirnan and the League failed to comply with the policy's notice provisions. The David Agency argues that Moje cannot come forward with sufficient evidence to require a trial on his claim that The David Agency negligently procured the policy.

B. Procurement of the Policy

The David Agency is an Illinois insurance producer with a principal place of business in Elmhurst. Pl.'s Resp. to The David Agency SUMF ¶ 1, ECF No. 98. Jo Ellen Weldon, a David Agency employee, produced the policy at issue here. Id. ¶ 7, 8. Someone other than Kirnan associated with the League may have initially contacted The David Agency about procuring insurance. Id. ¶ 13. Following the initial contact, Weldon communicated beginning in October 2011 with Kirnan by phone and email about procuring insurance; Kirnan served as the "primary contact" for the League. Id. ¶¶ 9–10, 13.

Kirnan and Weldon had "several conversations" before the policy was issued. Pl.'s Resp. to The David Agency SUMF ¶ 14. The two discussed the possibility of obtaining coverage for certain teams in addition to the League itself, but Weldon told Kirnan that The David Agency could not procure that kind of coverage. Id. ¶ 20. Regarding the League, Kirnan told Weldon "that he wanted to purchase general liability insurance." Id. ¶¶ 17, 18 (testimony that Kirnan was "just looking for a general liability policy") (quoting Weldon Dep. 18:18-19:4, The David Agency SUMF Ex. C, ECF No. 91 ; Kirnan Dep. 125:24-126:2, National Casualty Mem. Supp. Mot. Summ. J. Tab D, ECF No. 94-1 ).

Weldon sent Kirnan a quote for general liability coverage; the quote outlined the policy's coverage and limits. Pl.'s Resp. to The David Agency SUMF ¶¶ 21, 22; Def. The David Agency Resp. to Pl.'s SUMF ¶ 3, ECF No. 105 (quotation therein). Kirnan accepted the quote. Pl.'s Resp. to The David Agency SUMF ¶ 22. At some point Weldon told Kirnan that "the policy contained "an extra coverage for liability, tort liability." Def. The David Agency Resp. to Pl.'s SUMF ¶ 4 (quoting Weldon Dep. 15:8–12). She did not tell Kirnan that claims made by players against the League would be excluded. Id. ¶ 5. Nor did Weldon advise Kirnan that he had to give prompt notice of a claim or lawsuit. Id. ¶ 13.

Kirnan did not know what a "general liability" policy would cover and relied on The David Agency to procure a policy. Id. ¶¶ 11, 12. He "is the only person with knowledge of any requests from the FHL to The David Agency to procure insurance coverage for the FHL," and he is the "only person with knowledge of any communications between the FHL and The David Agency relating to the procurement of insurance coverage for the FHL." Pl.'s Resp. to The David Agency SUMF ¶¶ 15, 16 (undisputed); accord id. ¶ 57.

Weldon sent Kirnan a copy of the policy on November 2, 2011. Id. ¶ 24. The second paragraph of her transmittal letter reads as follows:

I have reviewed your policy but ask that you please take time to examine it carefully to make sure the limits of coverage meet your needs and that no items have been omitted. If there are any portions of the policy that you do not understand, please feel free to call me for an explanation.

Id. (quoting National Casualty Mem. Supp. Mot. for Summ. J. Tab H, ECF No. 94-1 ). Kirnan read and understood the letter when he received it on or around the same day. Pl.'s Resp. to The David Agency SUMF ¶ 25 (citing Kirnan Dep. 113:22–114:8). Kirnan testified that he was "not aware of any errors with respect to the Policy." Id. ¶ 26. "Kirnan does not have any criticisms of The David Agency's conduct in connection with the procurement of the Policy and has no complaints about the Policy that was provided by The David Agency." Id. ¶ 30.

C. The Policy

The policy contains language that National Casualty argues precludes coverage for any claims based on Moje's injury. See Def. The David Agency Resp. to Pl.'s SUMF ¶ 15. "The first exclusion to which National Casualty points precludes coverage for ‘bodily injury’ or ‘property damage’ expected or intended from the standpoint of the insured." Def. The David Agency Resp. to Pl.'s SUMF ¶ 7 (quoting Policy pp. 16–17.)

An endorsement to the policy states that National Casualty "will pay those sums that the Insured becomes legally obligated to pay as damages because of ‘bodily injury’ to any ‘participant’ to which this insurance applies." Pl.'s Resp. to The David Agency SUMF ¶ 28. The term "participant" is defined as ‘players, coaches, managers, staff members, team workers, officials, media personnel, Very Important Persons and other personnel who have been granted proper authorization to enter any restricted area.’ " Policy 40; Def. The David Agency Resp. to Pl.'s SUMF ¶ 9. The endorsement itself contains an exclusion, however, excepting from coverage "Bodily Injury" to a "Participant." Policy 39; Def. The David Agency Resp. to Pl.'s SUMF ¶ 8.

The endorsement also incorporated the following provisions found in Section IV of the Policy, entitled "Commercial General Liability Conditions:"

2. Duties In The Event of Occurrence, Offense, Claim or Suit

a. You must see to it that we are notified as soon as practicable of an "occurrence" or an offense which may result in a claim. To the extent possible, notice should include:

(1) How, when and where the "occurrence" or offense took place;

(2) The names and address of any injured persons and witnesses; and

(3) The nature and location of any injury or damage arising out of the "occurrence" or offense.

b. If a claim is made or "suit" is brought against any insured, you must:

(1) Immediately record the specifics of the claim or "suit" and the date received; and

(2) Notify us as soon as practicable.

c. You and any other involved insured must:

(1) Immediately send us copies of any demanded, notices, summonses, or legal papers.

Policy p. 25; Pl.'s Resp. to The David Agency SUMF ¶ 27.

D. Moje's Suit Against the League

Kirnan had no insurance training, and prior to the Moje matter, he had never filed an insurance claim on the League's behalf. Def. National Casualty's Resp. to Pl.'s SUMF ¶¶ 1, 2, ECF No. 109. Kirnan "Never read the Commercial General Liability policy from National Casualty and at the time of the Underlying Lawsuit he did not understand that insurance carriers had to be promptly notified by the FHL." Id. ¶ 16; see also id. ¶ 17 (Kirnan was not advised by The David Agency of...