text:
The 37th Alabama Infantry Regiment was organized at Auburn, in the spring of 1862, under the requisition of President Jefferson Davis for 12,000 more Alabamians Ordered to Columbus, MS, after a short time, the regiment proceeded to Tupelo. There it was placed in General Henry Little's Division, and in the Brigade of Col. Martin of TN, with three Mississippi regiments. General Dabney Herndon Maury succeeded General Little when the latter was killed at Iuka, where the 37th was first engaged, with some loss. After Corinth the 37th was placed into a brigade with the 2nd TX, and 42nd AL, General John C. Moore commanding. The 37th lost heavily at Lookout Mountain and quite a number at Mission Ridge. The winter passed at Dalton, GA, where General Alpheus Baker of Barbour took charge of the brigade. The regiment was then engaged at Chattanooga (73 casualties out of 407 men present), Resaca, Noonday Creek, Kennesaw, and the battles around Atlanta. In one charge at Atlanta, 22 July, the regimental commander and 40 men were killed outright, out of 300 men present. During the fall and winter, the 37th was on garrison duty at Spanish Fort, then moved into North Carolina. The 37th Alabama Infantry Regiment, Consolidated, was organized on 9 April 1865 by combining the original 37th Alabama with the 42nd and 54th Alabama regiments, at Smithfield, NC. It broke the enemy line at Bentonville, and furled its colors a few days later, with 300 of its number present out of the 1100 who took the field originally. . The unit(s) surrendered on 26 April 1865 at Durham Station, Orange County, NC. " . . .Let me say of the fruitless struggle made by the Thirty-Seventh Alabama Regiment . . . I believe no truer, braver soldiers were to be found in the Confederate army, and I ask that those noble sons of Alabama shall not be forgotten while the deeds of others are often sung in loudest praise." - Brigadier General John Creed Moore, C.S.A., retired COMPANIES OF THE AL 37th INFANTRY REGIMENT Co. A - Henry - Moses B. Greene- wounded at Corinth. Co. B - Tallapoosa - John O. Davis- wounded at Corinth- resigned. James H. Johnson- wounded at Atlanta. Co. C - Pike - Joel C. Kendrick- wounded at Corinth and Atlanta. Co. D - Macon and Russell - W.F. Slaton- promoted. Jeptha J. Padgett- wounded. Co. E - Henry - J.L. Skipper- resigned. Joel G. Greene- wounded at Atlanta. Co. F - Pike - C. Pennington- wounded at Resaca. Co. G - Chambers - W.W. Meadows- killed at Corinth. S.M. Robertson- wounded- resigned. C.E. Evans- wounded at Resaca and Atlanta. Co. H - Barbour and Henry - Marion C.J. Searcy- wounded at Corinth- killed at Mission Ridge. H.F. Reynolds. Co. I - Chambers - James J. Talbot- resigned. T.J. Griffin. Co. K - Pike - J.M. Leach- killed at New Hope. Geo. H. Chatfield.
About John C RigdonJohn Rigdon has authored a number of books on the Civil War and is the manager of the web site, Research OnLine, (www.researchonline.net) the premier site for researching Civil War ancestors in the Civil War. His titles include the Historical Sketch and Roster Volumes (1100 plus titles) and a dozen volumes in the "We Fought" series focusing on particular battles and commanders. Additionally John works in translation of materials for Haitian Creole and several languages of West Africa including French, Moore, Bambara, and Dioula (Jula). John resides in the foothills of the Appalachians outside Cartersville, GA. where he enjoys gardening and aquaponics. You may reach him at firstname.lastname@example.com"
Details Book
|John C Rigdon
|Data Published
|30 June 2015
|Format Book
|PDF, Epub, DOCx, TXT
|Number of Pages
|260 pages
|Age +
|15 years
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United States District Court, Northern District of New York
May 27, 2003
THE TRAVELERS INDEMNITY COMPANY, PLAINTIFF,v.WILLIAM V. GOSLINE D/B/A BILL'S DUSTBUSTER JANITORIAL SERVICE, DEFENDANT AND THIRD-PARTY PLAINTIFF V. "KENNY DOE," AN EMPLOYEE OF NORTHWAY PLAZA ASSOCIATES, LLC OR KELLY AND DUTCH REAL ESTATE, INC., NORTHWAY PLAZA ASSOCIATES LLOC, KELLY AND DUTCH REAL ESTATE INC., MARCUS NOBLE, INC., PITCHER NOBLE, INC., PITCHER NOBLE, INC., D/B/A NOBLE TRUE VALUE, KEN NOBLE, KEN NOBLE D/B/A NOBLE TRUE VALUE, NOBLE TRUE VALUE, L.R. NELSON CORPORATION, THIRD-PARTY DEFENDANTS.
Plaintiff, Travelers Indemnity Company ("Travelers" or "Plaintiff"), brought this diversity action against William V. Gosline, d/b/a Bill's Dustbuster Janitorial Service ("Gosline"), to recover for alleged property damage. See generally Dkt. No. 1, Compl. In order to fully appreciate the difficult issue presently before this Court, a recitation of the procedural history is warranted.
Travelers leased space in the Northway Plaza Shopping Center in Queensbury, New York, from its owner, Northway Plaza Associates ("Northway Plaza"), for its telecommunication equipment. Dkt. No. 1 at ¶ 3. The incident giving rise to Plaintiff's suit occurred on October 13, 1999, wherein a "Y" attachment valve connected to a sink faucet in a janitorial closet overflowed causing serious water damage to the floor below, the space that Travelers leased. Id. at ¶¶ 4-6. Plaintiff alleges significant damage to its business property has incurred additional expenses totaling in excess of $580,000. Id. at ¶ 7. On May 24, 2001, Plaintiff brought suit for negligence against Gosline, the janitorial company hired by Northway Plaza, alleging that in installing the "Y" attachment Gosline owed a duty of care to Travelers and breached that duty when they, inter alia, negligently installed the "Y" attachment. Id. at ¶¶ 9-11. Gosline denied the allegations contained in Plaintiff's complaint. Dkt. No. 3, Gosline Answer.
After preliminary discovery had been completed, Defendant Gosline assessed that other parties had significantly contributed to Plaintiff's damages and, thereafter, on November 1, 2001, sought leave from the Court to file a third-party action. Dkt. Nos. 10-12. Such leave was granted on November 26, 2001. Dkt. No. 13. On January 8, 2002, in compliance with that Order, Gosline filed a Third-Party Complaint asserting alternate theories of liability giving rise to contribution and/or indemnification claims against the following Third-Party Defendants:
(1) Kelly and Dutch Real Estate, Inc. — A New
York Corporation with its primary place of business in
New York and Principal Owner and/or Shareholder of
Northway Plaza Associates, LLC, and managers of
Northway Plaza Shopping Center;
(2) Northway Plaza Associates, LLC ("Northway Plaza")
— A New York Limited Liability Company with its
primary place of business in New York and Owner of
Northway Plaza Shopping Center;
(3) "Kenny Doe" — Employee of Kelly and Dutch
Real Estate, Inc. and/or Northway Plaza Associates who
performs maintenance work at Northway Plaza Shopping
(4) Marcus Noble, Inc.; Pitcher Noble, Inc.; Pitcher
Noble, Inc. d/b/a/ Noble True Value; Ken Noble; Ken
Noble d/b/a/ Noble True Value; Noble True Value
(Collectively referred to as "Noble True Value" or
"Noble") — New York Corporations doing business
in New York and Individuals residing in New York who
are the distributors and sellers of subject "Y"
attachment;*fn2 and
(5) L.R. Nelson Corporation ("L.R. Nelson" or
"Nelson") — Incorporated in Delaware with
principal place of business in Illinois, doing
business in New York, and manufacturer of subject "Y"
After each relevant party was joined in the action, a slew of cross claims ensued amongst all the Third-Party Defendants, each pointing the blame in another's direction. Dkt. Nos. 17, 21, 22, 23, 26, & 27.
Amid all these entanglements, on October 3, 2001, L.R. Nelson's insurance carrier, Reliance Insurance Company, went into liquidation. See Dkt. No. 53, Ex. A, Order of Liquidation. At the time the Third-Party Complaint was filed, L.R. Nelson was represented by the Napierski Law Firm as retained by Reliance in accordance with their duty to defend. Such representation continued until June or July of 2002, when the Illinois Insurance Guaranty Fund ("Guaranty Fund" or "Fund") assumed L.R. Nelson's defense and accordingly retained Ainsworth, Sullivan, Tracy, Knauf, Warner & Ruslander, P.C. ("Ainsworth-Sullivan"). The Court received notice of this change on September 13, 2002. Dkt. No. 40. In the interim, Travelers sought leave and was permitted to file a Rule 14(a) Complaint against Third-Party Defendants True Noble and L.R. Nelson. Dkt. No. 36, Stipulation Order; Dkt. No. 38, Rule 14(a) Compl. filed on July 24, 2002.*fn4 On October 25, 2002, L.R. Nelson filed their Answer to the 14(a) Complaint and included an affirmative defense asserting that, under the Illinois statutory scheme governing the Guaranty Fund, both the Fund and Nelson are immune from the suits being asserted against them.*fn5
All parties to the lawsuit were put on notice as to the presence of the Illinois Statute and its potential role in shielding Nelson's liability as early as September 20, 2002.*fn6 Thereafter, L.R. Nelson attempted to assert the same affirmative defense in its proposed amended answers to Gosline's Complaint, Noble True Value's cross-claims, and Northway Plaza's cross-claims by circulating those amendments to all parties accompanied by a stipulation. Dkt. No. 50, Ex. R. Travelers and Northway Plaza were the only parties to execute a stipulation agreeing to the amendments; thus the present motion ensued.
Pending is L.R. Nelson's Motion to Amend several of his Answers to other Third-Party Defendants as well as Third-Party Plaintiff Gosline pursuant to Rule 15 of the Federal Rules of Civil Procedure in order to add an affirmative defense. Dkt. No. 50. Specifically, Nelson seeks permission to amend (1) its Answer to the cross-claim of the Noble Third-Party Defendants (Dkt. No. 27); (2) its Answer to the cross claim of the Northway Plaza Third-Party Defendants*fn7; and (3) its Answer to Defendant/Third-Party Plaintiff Gosline's Third-Party Complaint (Dkt. No 22) in order to add the affirmative defense that pursuant to the statutes governing the Illinois Insurance Guaranty Fund, all claims against Nelson in the nature of subrogation, contribution, and/or indemnity cannot be maintained and should be dismissed. Dkt. No. 50. Noble True Value and Gosline oppose the Motion. Dkt. Nos. 52-53. All other parties, as aforementioned, have stipulated to the amended answer. For the reasons that follow, L.R. Nelson's Motion to Amend is denied.
A. Standard for Motion to Amend
FED. R. CIV. P. 15(a) states, in pertinent part, that leave to amend a pleading should be "freely given when justice so requires." Indeed, leave to amend should be denied only in the face of undue delay, bad faith, undue prejudice to the nonmovant, futility of amendment, or where the movant has repeatedly failed to cure deficiencies in previous amendments. Foman v. Davis, 371 U.S. 178, 182 (1962); Kropelnicki v. Siegel, 2002 WL 924443, at **9 (2d Cir. May 8, 2002) (citing Chill v. General Electric, Co., 101 F.3d 263, 271-72 (2d Cir. 1996)). District courts are vested with broad discretion to grant a party leave to amend the pleadings. See Local 802, Assoc. Musicians of Greater New York v. Parker Meriden Hotel, 145 F.3d 85, 89 (2d Cir. 1998). "The party opposing a motion for leave to amend has the burden of establishing that granting such leave would be unduly prejudicial." State of New York v. Panex Indus., Inc., 1997 WL 128369, at *2 (W.D.N.Y. Mar. 14, 1997) (citing Saxholm AS v. Dynal, Inc., 938 F. Supp. 120, 123 (E.D.N.Y. 1996)); see also Lamont v. Frank Soup Bowl, 2000 WL 1877043, at *2 (S.D.N.Y. Dec. 27, 2000) (citation omitted). This requires the non-movant to "do more than simply claim to be prejudiced." Bryn Mawr Hosp. v. Coatesville Elec. Supply Co., 776 F. Supp. 181, 185 (E.D.Pa. 1991).
The Third-Party Claimants opposing the motion assert three distinct bases for such opposition: (1) undue delay or bad faith by Nelson in asserting the proposed amendment; (2) prejudice to the parties would result if the proposed amendment were permitted; and (3) the proposed amendment is futile or meritless. The Court will consider each of these contentions separately.
1. Undue Delay or Bad Faith
Gosline and Noble assert that leave should be denied because the proposed amendments are untimely. Nelson brings this motion approximately one year after filing the Answer to Gosline's Third-Party Complaint, Dkt. No. 21, and six months after the expiration of the amendment of pleadings deadline of July 1, 2002, as set forth in the Amended Uniform Pretrial Scheduling Order, Dkt. No. 29. Furthermore, Gosline contends that Nelson delayed over ten months after insolvency of its insurer before even mentioning such a defense exists. Dkt. No. 53 at ¶ 7. Noble adds that Nelson's attorneys had indicated they were determining whether the statute was applicable, and in turn may file a motion, yet failed to take such action prior to the expiration of the deadline for amending pleadings. Dkt. No. 52 at ¶ 10.
Courts have the discretion to deny leave to amend "where the motion is made after an inordinate delay." Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 72 (2d Cir. 1990). Such motions, however, should not be denied on the ground of delay absent bad faith or undue prejudice. See Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993); see also Phaneuf v. Tenneco, Inc., 938 F. Supp. 112, 115 (N.D.N.Y. 1996) (citing U.S. v. Continental Ill. Nat. Bank and Trust, 889 F.2d 1248, 1254 (2d Cir. 1989) (delay alone is insufficient ground to deny a motion to amend)).
After reviewing the relevant events as they occurred, it is clear to the Court that, contrary to the oppositions' contention, Nelson did not delay in making the within motion. Nelson's original attorneys from the Napierski law firm were hired by their insurance carrier, Reliance, in accordance with their duty to defend. Nelson's insurance carrier became insolvent on October 3, 2001, however, the Napierski law firm continued their representation of Nelson. Around June or July of 2002, the Illinois Insurance Guaranty Fund after receipt of the file, confirmed that Nelson met the specific requirements under the Fund statutes, thus they would step into the suit in place of Reliance and accordingly assume the duty to defend Nelson. They subsequently retained Ainsworth-Sullivan to proceed with Nelson's defense. Dkt. No. 50 at ¶ 7. The docket reflects that on September 13, 2002, a notice of change of attorney was filed, on behalf of Nelson, just after Travelers filed their 14(a) Complaint against Nelson. Dkt. No. 40. It was at that point that Nelson's attorneys were provided a copy of the Fund's governing statutes. Dkt. No. 50, Ex. Q, Illinois Statute. Thereafter, in the discovery conference with all parties held by this Court on September 20, 2002, Nelson's attorneys brought the statute to everyone's attention and indicated they needed to determine whether the statute was applicable to all thus necessitating a formal motion.
Upon further analysis and consideration of the Illinois statutory scheme and review of Plaintiff's 14(a) Complaint and other relevant information, Nelson's counsel determined that an affirmative defense existed with regard to the Fund under specific portions of the statute which impacts Nelson's liability. Dkt. No. 50 at ¶ 9. This affirmative defense was included in their Answer to the 14(a) Complaint filed on October 25, 2002, along with a copy of the statutory scheme. Dkt. No. 43. Nelson posited that such a defense exists as to all claims against them in the case and, accordingly, on November 1, 2002, distributed a proposed stipulation regarding the amendment to all the parties as well as the Court. Lt. from Karen Collins, dated Nov. 1, 2002. Thereafter, Nelson requested a discovery conference with the Court to address the lingering tautness that existed as a result of certain parties' refusal to stipulate to the amendment. Dkt. No. 44. Since there was no resolution, the motion to amend ensued. Judge's Notes, dated Dec. 23, 2002.
It is the Court's position that Nelson did not delay in ascertaining the applicability of the statute and subsequently alerting all parties and the Court of their intention to amend their pleadings. It is clear from a review of the timetable that Nelson appropriately reacted to certain events which were beyond control, i.e., the Fund's decision to step in. Furthermore, upon receipt of the statutory scheme, Nelson promptly amended its insurance disclosure, served a copy of the Fund statutes on all counsel, and in good faith, alerted all parties of their intention to amend. Furthermore, in accordance with Local Rules, Nelson conferred with all parties, as well as the Court, in obtaining a resolution before engaging in formal motion practice. Accordingly, Noble and Gosline have failed to meet their burden in maintaining Nelson delayed or acted in bad faith.
2. Prejudice to the Parties
Noble and Gosline assert that if the proposed amendment were permitted they would be unduly prejudiced in that: (1) the proposed amendment would require additional discovery and depositions, including depositions of witnesses already deposed, Dkt. No. 52 at ¶ 3; (2) parties would be forced to incur additional expenses associated with additional paper discovery and depositions, Dkt. No. 52 at ¶ 12; and (3) because of the "inordinate delay" in asserting the defense, the parties have been deprived of months of opportunity to plan for it, Dkt. No. 54 at 7.
In determining what constitutes prejudice from the amendment of a pleading, courts within the Second Circuit generally consider "whether the assertion of the new claim would (i) require the opponent to expend significant additional resources to conduct discovery and prepare for trial; (ii) significantly delay the resolution of the dispute; or (iii) prevent the plaintiff from bringing a timely action in another jurisdiction." Monahan v. New York City Dept. of Corrections, 214 F.3d 275 (2d Cir. 2000).
The proposed amendment concerns the applicability of an Illinois statutory scheme to the Fund's and/or Nelson's obligations and liabilities in the case at bar. Whether the statute applies as well as the ensuing effects are matters of law, not fact, for the Court to decide and, therefore, the assertion that more discovery will ensue, especially in the form of depositions, is incongruous.
Furthermore, the discovery deadline in this case expired on May 1, 2003. The parties had been aware of the existence and potential application of the statute as early as September 20, 2001, and no order to date has stayed discovery in any mode, nor has anyone requested such an order. Assuming, as this Court must that, in the absence of an order staying discovery, all parties proceeded with discovery with all deliberate speed, it is difficult for the Court to grasp how the parties can argue they were "deprived of months of an opportunity to plan" for such a defense. Aside from the discussion above outlining the relevant dates in which the defense had first been proposed, Nelson filed the Motion to Amend on January 7, 2003, well before the expiration of discovery. The filing of such a motion in no way stays discovery, and the Court has reminded the parties of this fact numerous times. JN, dated Sept. 25, 2002, regarding conference held on Sept. 20, 2002; JN, dated Dec. 23, 2002, regarding conference held on Dec. 18, 2002. Therefore, contrary to Gosline's contention, the parties have had ample time to prepare for the possibility that such a defense may be asserted. The fact that the parties opted to refrain from such discovery pending the outcome of the present motion, even after being warned by the Court that no more extensions would be granted and no stay of discovery is in place, will not prevent Nelson from proposing the amendment.
As the amendment will not prejudice the parties in any mode stated in the factors above, we submit that the opposition has failed to meet their burden in asserting such a contention.
3. Futile or Meritless Amendment
As stated above, the district court is required to grant leave to amend "freely . . . when justice so requires." FED.R.CIV.P. 15(a); Foman v. Davis, 371 U.S. at 182; Ronzani v. Sanofi S.A., 899 F.2d 195, 198 (2d Cir. 1990); 3 MOORE'S FEDERAL PRACTICE ¶ 15.08[4], at pp. 15-65. However, the Court has the discretion to deny a motion to amend especially on the grounds of futility. Nettis v. Levitt, 241 F.3d 186, 193 (2d Cir. 2001); see also Marci v. BOCES, 173 F.3d 469, 478 (2d Cir. 1999) (citing Ruffolo v. Oppenheimer Co, 987 F.2d 129, 131 (2d Cir. 1993); Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990).*fn8 The Second Circuit has stated where futility is raised as an objection to the motion to amend, and
[w]here it appears that granting leave to amend is
unlikely to be productive, [] it is not an abuse of
discretion to deny leave to amend. See, e.g., Foman
v. Davis, 371 U.S. at 182, 83 S.Ct. at 230 (denial not
abuse of discretion where amendment would be futile);
Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d
Cir. 1990) (`where . . . there is no merit in the
proposed amendments, leave to amend should be
denied'); Billard v. Rockwell International Corp.,
683 F.2d 51, 57 (2d Cir. 1982) (denial not abuse of
discretion where plaintiff had had `access to full
discovery' in a related case).
As futility is an appropriate basis for denying leave to amend, such denial should be contemplated within the standards necessary to withstand a motion to dismiss pursuant to FED.R.CIV.P. 12(b)(6). Dougherty v. North Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002) (citing Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991)). Here, Gosline raised, and Noble implied, that Nelson's motion to assert this affirmative defense, based upon the Illinois Guaranty Fund Act (215 ILL. COMP. STAT. 5/532 et seq. (2003)), would be futile. For the most part, Gosline bases the objection of futility upon a conflicts of law analysis. As set forth below, there are, however, other reasons to support the contention of futility.
(a) Illinois Insurance Guaranty Fund Act
As previously stated, Nelson's insurer, Reliance Insurance, is in liquidation. Inasmuch as Nelson is an Illinois corporation, it has availed itself of the Illinois Insurance Guaranty Fund ("Guaranty Fund"), which steps into the shoes of the insurer when insolvency becomes an issue and provides insurance coverage, albeit under limited circumstance. Similar to its Answer to Travelers' Rule 14(a) Complaint, submitted after the Guaranty Fund became the insurer, Nelson wishes to add another affirmative defense against the Third-Party Claims filed by Gosline and Noble. Within their respective claims, both Gosline and Noble seek either contribution or indemnification against all the Third-Party Defendants including Nelson. Dkt. Nos. 14 & 21. With regard to these Third-Party Claims, initially Nelson made general denials of the allegations and asserted several affirmative defenses but none were based upon the limitations imposed by the Illinois Guaranty Fund Act. 215 ILL. COMP. STAT 5/532 et seq. (2003). Now, Nelson asks this Court for leave to add the following affirmative defense:
L.R. Nelson was insured by Reliance Insurance at the
time of the alleged occurrence which plaintiff
complains. Reliance Insurance is in liquidation and
consequently, L.R. Nelson corporation is being
defended through the Illinois Insurance Guaranty
Fund. Pursuant to the statutes governing the Illinois
Insurance Guaranty Fund, all claims against L.R.
Nelson in the nature of subrogation, contribution,
and/or indemnity cannot be maintained and should be
Nelson interprets the breadth of this statute very broadly and submits that it is an absolute bar to all claims against it, whether prosecuted by the Plaintiffs or the Third-Party Claimants. Dkt. No. 50, K. Collins, Esq. aff. This Court does not accept the proposition that this provision of the law is as comprehensive, in terms of its impact upon this litigation, as Nelson would want us to believe. In fact, Nelson misapprehends the scope of this statute, and has utterly failed to thoroughly read the integral precision and harmony of all of its operational provisions. Nelson fails to consider the statutory coordination between sections 5/534.3(b)(v) and 5/546(a), which is the more pertinent provision relative to our case. At most, after all is said and done, as it relates to the third-party actions here, the Guaranty Fund coverage may serve only as an offset, not a definite bar.
Nelson's proposed affirmative defense relies upon the following provision of the Guaranty Fund Act:
(b) Covered Claim does not include. . . .
(v) any claim for any amount due any reinsurer,
insurer, insurance pool, or underwriting association
as subrogated recoveries, reinsurance recoverables,
contribution, indemnification or otherwise. No such
claim held by a reinsurer, insurer, insurance pool, or
underwriting association may be asserted in any legal
action against a person insured under a policy issued
by an insolvent company other than to the extent such
claim exceeds the Fund obligation limitations set
forth in Section 537.2 of this Code.
The purpose of the Guaranty Fund Act is to protect the public from losses arising from the insolvency of Illinois insurers. Urban v. Loham, 592 N.E.2d 292, 294-95 (Ill.App.Ct. 1992). An Illinois insurer that holds a certificate of authority to transact insurance business within the state is deemed to be a member of the Guaranty Fund. Further, it is the intent of this statute to place plaintiffs or claimants, which includes third-parties, in the same position they would have been if the defendant's liability insurer had not become insolvent. Claudy v. Commonwealth Edison Co., 626 N.E.2d 1088, 1100 (Ill.App.Ct. 1993); Norberg v. Centex Homes Corp., 616 N.E.2d 1342, 1347 (Ill.App.Ct. 1993) (The Fund assumes the defense of the insolvent insurance company's insured). That is, the Guaranty Fund is obligated to pay the covered claim, and not the judgment. Id. A covered claim is defined in two ways; what it is and what it is not. Under the statute, a covered claim means
an unpaid claim for a loss arising out of and within
the coverage of an insurance policy to which this
Article applies and which is in force at the time of
the occurrence giving rise to the unpaid claim,
including claims presented during any extended
discovery period which was purchased from the company
before the entry of a liquidation order or which is
purchased or obtained from the liquidator after the
entry of a liquidation order, made by a person insured
under such policy or by a person suffering injury or
damage for which a person insured under such policy is
legally liable. . . .
Contemplating the purpose of section 5/534.3(b)(v), it is evidently clear that the Illinois legislature did not want solvent insurers to be reimbursed from the proceeds of the Guaranty Fund. Claudy v. Commonwealth, 266 N.E.2d at 1101 (citing Pierre v. Davis, 520 N.E.2d 743, 744 (Ill. App. Ct. 1987) ("It is clear that the legislature did not want the assets of the [Guaranty] Fund depleted to reimburse solvent insurance companies for payments made to claimants or their insured under policies for which they received a premium.")). Therefore the applicability of the provisions of this law to the Plaintiff's claim, as opposed to the Third-Parties, is readily apparent.
Though it is not the issue for this Motion to Amend, yet remains pertinent for our discussion, Nelson intimates that the Plaintiff has been fully reimbursed by its insurance carrier for its loss in this occurrence with the exception of the deductible. Dkt. No. 50 at ¶ 9. Under these circumstances, if true, section 5/534.3(b)(v) may be a bar to both the Plaintiff and its insurance company from recovering the reimbursed amount from the Guaranty Fund.*fn9 However, this section does not apply to the Third-Party Claimants, who, for several reasons, have claims for contribution and/or indemnity against Nelson. The most obvious reason being that neither Gosline nor Noble are a "reinsurer, insurer, insurance pool, [n]or underwriting associations" who are bringing a claim as "subrogated recoveries, contribution, or indemnification." 215 ILL. COMP. STAT. 5/534.3(b)(v); see also 215 ILL. COMP. STAT. 5/534.5 ("member company" defined). The fact that both Gosline and Noble have insurance coverage, which indubitably will be interjected into this lawsuit if the Plaintiff's claims against each of them are successful, does not alter this determination.
In Claudy v. Commonwealth, supra, a wrongful death action was brought by the decedent's wife against the utility company and the city for her husband's electrocution when he was removing a tree from a power line for his employer. The defendant city filed a third-party complaint against the employer. After the employer's insurance company went into liquidation, the Guaranty Fund assumed the defense. Eventually, the wife settled with the city and, as a part of the settlement, the wife received an assignment of the city's third-party action. The Claudy court concluded that the assignment of the third-party action did constitute a "covered claim" pursuant to Guaranty Fund Act and, further, the wife was "clearly not an insurer, reinsurer, insurance pool or underwriting association" for the purpose of this statute. Claudy, 266 N.E.2d at 1101. And, for other reasons as well, the wife nor the city for that matter were barred from asserting the contribution actions against the employer. Id.
Another instructive permutation regarding which claims are considered covered claims, may be found in Norberg v. Centex Homes Corp., 616 N.E.2d 1342 (Ill.App.Ct. 1993). In Norberg, an injured worker sued the developer, and the developer, in turn, filed a third-party complaint against the injured worker's employer. The jury returned a verdict in favor of the plaintiff against the developer and also returned a verdict for the developer against the employer for 50 percent liability on the judgment. Under these circumstances, the developer was not an insurance company and remained solely classified as a tortfeasor, therefore section 5/534.3(b)(v) was inapplicable. Norberg, 616 N.E.2d at 1346-49. However, as will be discussed below, another provision of the Guaranty Fund Act, section 5/546(a) (the non-duplication recovery provision), was triggered, and indeed may be relevant in our case. Id. at 1348-49. Rather than being a bar like section 5/534.3(b)(v), section 5/546(a) is relevant only in determining the amount of recovery from the Guaranty Fund. Id.; see also Herriford v. Boyle, 550 N.E.2d 654, 658 (Ill.App.Ct. 1990).
Because Gosline and Noble are both deemed a party and not an "insurer," none of the provisions of the Guaranty Fund, at this juncture of the litigation, constitute an affirmative defense.*fn10 The tortfeasor remains liable to the plaintiff or third-party, notwithstanding the Guaranty Fund, and the plaintiff or claimant would be entitled to "recover all damages that naturally and proximately flow from the commission of a tort [even] when the [Guaranty] Fund is involved. . . ." Lonigro v. Lockett, 625 N.E.2d 265, 270 (Ill.App.Ct. 1993) (citing Urban v. Loham, 592 N.E.2d 1342, 292 (Ill.App.Ct. 1992); see also Modern Steel Treating Co. v. Liquid Carbonic Industrial/Medical Corp., 698 N.E.2d 710 (Ill.App.Ct. 1998); Herriford v. Boyles, 550 N.E.2d 654 (Ill.App.Ct. 1990) (The Fund is not liable as the tortious wrongdoer but only stands ready to indemnify the tortfeasor for a loss); Pierre v. Davis, 520 N.E.2d 743 (Ill.App.Ct. 1987). Thus, if Gosline and Noble were to recover a contribution and/or indemnification verdict against Nelson, Nelson would remain liable for the amount of the recovery no matter if its previous insurer was solvent and required to indemnify it from the loss, or if the Guaranty Fund, who only steps into the shoes of the insurer because of insolvency, provides the indemnification. Essentially, under this scenario, the judgment would be against the tortfeasor and not the Guaranty Fund, and the extent of the indemnification provided by the Guaranty Fund is nothing more than an offset against that judgment. This notion of offset is solidified by the Guaranty Fund Act's "non-duplication recovery" provision as set forth in section 5/546(a).
Section 5/546(a) requires the plaintiff, or in this case the third-party claimants to exhaust insurance policies before the Guaranty Fund must pay. Lonigro v. Lockett, 625 N.E.2d at 271; Claudy v. Commonwealth, 626 N.E.2d at 1101-02 (citing Herriford v. Boyles, 550 N.E.2d at 658). This provision of law provides:
An insured or claimant shall be required first to
exhaust all coverage provided by any other insurance
policy, regardless of whether or not such other
insurance policy was written by a member company, if
the claim under such other policy arises from the same
facts, injury, or loss that gave rise to the covered
claim against the Fund. The Fund's obligation. . . .
shall be reduced by the amount recovered or
recoverable, whichever is greater, under such other
insurance policy. . . . To the extent that the Fund's
obligation . . . is reduced by application of this
Section, the liability of the person insured by the
insolvent insurer's policy for the claim shall be
reduced in the same amount.
Based upon all of the foregoing, the relevancy of the Guaranty Fund vis-à-vis the Third-Parties is yet to be determined but it is certainly not an affirmative defense, thus rendering the pleading of the defense futile. Gosline raised that this defense should be denied on conflict of law principles. Considering this Court's decision on the Guaranty Fund's role in this litigation, the conflict of law issue, at least at this stage of the litigation, is moot. Therefore, Defendant Nelson's Motion to Amend is DENIED.
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Sci fi/Fantasy image byDaniel Routhier
'Well, our old friend Golthrak certainly seems to have found himself some tasty snacks. Those elves should know better than to hang around his dwelling. Oh well, live and learn I guess...' Also working on a color version of this..
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March 15, 1982
Kristine A. KLAUSNER, Plaintiff,
SOUTHERN OIL COMPANY OF NEW YORK, INC., Defendant
MEMORANDUM-DECISION and ORDER
This action has been commenced pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., alleging discrimination on the basis of sex. Plaintiff Kristine A. Klausner, employed by defendant Southern Oil (hereinafter "Southern") as a gasoline station manager, alleges that she was subjected to onerous working conditions and finally dismissed, solely because she had become pregnant. In an amended complaint, plaintiff sets forth the additional claim that Richard Shaw and Donald Peters, employees of Southern, conspired to deprive her of equal protection of the laws, in violation of 42 U.S.C. § 1985(3). Plaintiff seeks reinstatement and back pay, medical expenses associated with her pregnancy, $ 50,000 for pain and suffering, $ 500,000 in punitive damages, court costs and attorney's fees.
Before the Court is a motion by the defendant to dismiss the Title VII count pursuant to Fed.R.Civ.P. 12(b)(1), 12(b)(6) and 12(h)(3), or in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56. In addition, defendant moves to dismiss the § 1985(3) claim for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6).
Defendant contends that the plaintiff failed to file a timely charge of discrimination with the Equal Employment Opportunity Commission (hereinafter "EEOC"), and, therefore, the complaint should be dismissed for lack of subject matter jurisdiction or for failure to state a claim, or alternatively, that summary judgment should be granted since the action is barred by the applicable statute of limitations. Since timely filing with the EEOC is not a jurisdictional prerequisite for filing a Title VII suit, but rather a limitations requirement subject to waiver, estoppel and equitable tolling, Zipes v. Trans World Airlines, 455 U.S. 385, 102 S. Ct. 1127, 71 L. Ed. 2d 234 (1982), this Court will treat the defendant's motion as one for summary judgment pursuant to Fed.R.Civ.P. 56.
Summary judgment is a drastic remedy which should be granted only when it is clear that the requirements of Rule 56 of the Fed.R.Civ.P. have been satisfied. United States v. Bosurgi, 530 F.2d 1105, 1110 (2d Cir. 1976); Gargiul v. Tompkins, 525 F. Supp. 795, 797 (N.D.N.Y.1981). "(Summary) judgment is to be used not as a substitute for trial, but only when "... it is quite clear what the truth is (and) that no genuine issues remain for trial.' Sartor v. Arkansas National Gas Corp., 321 U.S. 620, 627 (64 S. Ct. 724, 728, 88 L. Ed. 967) (1944)." Pfizer Inc. v. International Rectifier Corp., 538 F.2d 180, 184-85 (8th Cir. 1976), cert. denied, 429 U.S. 1040, 97 S. Ct. 738, 50 L. Ed. 2d 751 (1977). Indeed, the reviewing court must accept as true factual statements in the opposing party's affidavits; draw all permissible inferences in that party's favor, Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438 (2d Cir. 1980), see also Hill v. A-T-O, Inc., 535 F.2d 1349 (2d Cir. 1976); and resolve any doubts in favor of the latter, American Mfrs. Mutual Ins. Co. v. American Broadcasting-Paramount Theatres, Inc., 388 F.2d 272 (2d Cir. 1967). In short, the movant has the dual burden of demonstrating that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970).
In order to determine whether the plaintiff filed a timely application with the EEOC or whether tolling would be appropriate, the events leading up to the filing of the Title VII complaint are of critical importance.
Plaintiff began her employment with Southern on January 31, 1977, and held the position of manager of a "Payless" gasoline station just prior to her dismissal on June 3, 1980. On March 11, 1981, 281 days after her termination, plaintiff's counsel filed a verified complaint with the New York State Division of Human Rights (hereinafter "NYSDHR") alleging employment discrimination. Enclosed with the complaint, plaintiff's counsel submitted a letter requesting that the NYSDHR defer consideration on the case in order to permit the EEOC claim to be filed. NYSDHR then forwarded a copy of the complaint directly to the EEOC where it was received on March 19, 1981. On March 13, 1981, plaintiff's counsel again wrote to NYSDHR, requesting a termination of the case for administrative convenience. On March 26, 1981 plaintiff's counsel wrote to Robert Shaw, Regional Director of NYSDHR, confirming a telephone conversation of the previous day that the case had been timely filed with the EEOC and that there were no "Mohasco" problems. According to the letter, Mr. Shaw had informed plaintiff's counsel that the NYSDHR had waived initial processing rights in the matter, but had not terminated its consideration and would reactivate the case if the EEOC's handling of the case proved unsatisfactory. EEOC form 212-A, dated March 24, 1981, indicates that the charge was received by the EEOC's Buffalo office on March 23, 1981 and that Robert Resto, Director of the Federal Contract Unit of NYSDHR, had granted a verbal waiver on March 23, 1981, 293 days after plaintiff's termination. The form further indicates that the charge will be maintained in the NYSDHR's system but is referred to EEOC for initial processing. The form was initialled by Robert Resto on March 31, 1981. On March 31, 1981, Resto also sent a letter to Southern, requiring that it respond to the NYSDHR's inquiry and investigation form. In a letter dated April 15, 1981, Harvey Anderson, Regional Director of NYSDHR, wrote to Mr. Jeter of Southern, requesting that NYSDHR be supplied with copies of his responses to the EEOC investigation. On May 5, 1981, the EEOC issued a determination that there was no reasonable cause to believe that the plaintiff's charge of discrimination was true. On May 5, 1981, the EEOC dismissed the charge and issued the plaintiff a Notice of Right to Sue.
Under 42 U.S.C. § 2000-5(e),
a complaint is required to be filed within 180 days of the alleged unlawful employment practice. However, in States that have established their own anti-discrimination agencies-New York being such a State
-a charge may be filed within 300 days after the unlawful practice occurred, or within 30 days after receipt of notice that the State agency has terminated its proceedings, whichever is earlier. However, § 2000e-5(c)
adds the requirement that, in a State that has established its own anti-discrimination agency, a charge may not be filed with the EEOC before the expiration of 60 days after proceedings have been commenced in the State agency, unless these proceedings have been earlier terminated. The parties are agreed, therefore, that in order for the plaintiff's claim to have been timely filed, this Court must find that the NYSDHR had terminated its proceedings within 300 days from the date of plaintiff's dismissal.
Where, as here, a charge is filed with the NYSDHR more than 240 days after the discriminatory act occurred, an arrangement has been established between the EEOC and the NYSDHR whereby the NYSDHR waives initial processing of the case and thus allows the EEOC to file the claim within the 300 day filing requirement.
Mohasco v. Silver, 447 U.S. 807, 100 S. Ct. 2486, 65 L. Ed. 2d 532 (1980). However, under this arrangement, the charge is maintained in the NYSDHR's system and is subject to a substantial weight review by the NYSDHR. What this Court must determine, therefore, is whether this waiver procedure constitutes a termination of the State's proceedings within the meaning of 42 U.S.C. § 2000e-5(c), and thus makes the filing of the plaintiff's complaint with the EEOC timely.
This Court finds that the word "terminated" as used in § 2000e-5(c) and § 2000e-5(e) must be given its plain and ordinary meaning. See, e.g., Mohasco v. Silver, supra, 447 U.S. at 818, 100 S. Ct. at 2492; General Electric Co. v. Gilbert, 429 U.S. 125, 145, 97 S. Ct. 401, 412, 50 L. Ed. 2d 343 (1976). In Mohasco v. Silver, supra, the Supreme Court clearly indicated that the word "terminated" necessitates the completion of all State action in the case. "Instead Congress chose to prohibit the filing of any federal charge until after state proceedings had been completed or until 60 days had passed, whichever came sooner." (emphasis supplied). Mohasco v. Silver, supra, 447 U.S. at 821, 100 S. Ct. at 2494. Clearly, the State proceedings cannot be considered completed during the period in which the charge is maintained in the NYSDHR's file and is subject to review after resolution by the EEOC. Since this Court finds that the NYSDHR's waiver of initial processing did not amount to a termination within the meaning of 42 U.S.C. § 2000e-5(c), and since the plaintiff has failed to present any equitable consideration which would warrant this Court's interference with the time limitations established by Congress, her claim is barred. Accordingly, the defendant's motion for summary judgment is granted as to the Title VII claim.
In count II of her amended complaint, plaintiff alleges that Mr. Peters and Mr. Shaw, employees of Southern, "conspired to deprive plaintiff of her right to remain gainfully employed with the same freedom secured to all persons regardless of sex ..." in violation of 42 U.S.C. § 1985(3). Defendant has moved to dismiss this claim for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6).
In order to state a claim under § 1985(3), the complainant must aver (1) that a conspiracy existed between two or more persons, (2) that the conspiracy was intended to deprive the plaintiff of equal protection of the laws or of privileges or immunities granted by law, (3) that an act was done by one of the conspirators in furtherance of the conspiracy, and (4) that she has been prevented from exercising a privilege or a right of citizenship. See Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S. Ct. 1790, 1798, 29 L. Ed. 2d 338 (1971). In this case the plaintiff alleges that Peters and Shaw conspired within the scope of their employment. However, in this Circuit, employees of a corporation, while acting within the scope of their employment, are incapable as a matter of law of conspiring amongst themselves or with the corporation within the meaning of a § 1985(3) conspiracy. Herrmann v. Moore, 576 F.2d 453, 459 (2d Cir. 1978), cert. denied, 439 U.S. 1003, 99 S. Ct. 613, 58 L. Ed. 2d 679 (1978). Girard v. 94th St. and Fifth Ave. Corp., 530 F.2d 66, 70-72 (2d Cir. 1976), cert. denied, 425 U.S. 974, 96 S. Ct. 2173, 48 L. Ed. 2d 798 (1976). Accordingly, the defendant's motion to dismiss plaintiff's § 1985(3) claim for failure to state a claim is granted.
It is so Ordered.
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Bear Stearns boosts mortgage business
Bear Stearns has become the fifth investment bank this year to expand its mortgage business through an acquisition, looking to take advantage of a booming US real estate sector.
Bear Stearns Residential Mortgage has agreed to pay $26m (€20m) to acquire Encore Credit Corp, the subprime mortgage origination platform of ECC Capital Corporation, a mortgage finance real estate investment trust.
Friedman Billings Ramsey and Milestone Advisors were co-financial advisers to ECC Capital. Latham & Watkins was legal adviser.
Venable was legal adviser to the special committee of the board of directors. Stifel Nicolaus issued a fairness opinion.
Jeff Verschleiser, a senior managing director in the mortgage department at Bear Stearns, said: "The acquisition of ECC Capital's origination unit will give Bear Stearns a substantial stake in the subprime lending business. Bear Stearns has been buying loans from ECC Capital for over three years and the performance of its loans has been favourable compared with other originators in the marketplace."
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Shabi Asghar, ECC Capital's president and co-chief executive will be president and chief executive of the business unit after the transaction closes.
Last month Merrill Lynch agreed to buy Californian mortgage origination and servicing business First Franklin Financial Corp for $1.3bn.
This year Morgan Stanley bought Saxon Capital, a US servicer and originator of residential mortgages for $706m.
Rivals Deutsche Bank and Barclays Capital have also bought US mortgage companies this year. Deutsche Bank agreed to buy MortgageIT Holdings, a Manhattan real estate investment trust, after acquiring Chapel Funding, a Californian mortgage originator, in May. In June Barclays Capital purchased the mortgage servicing business HomEq from Wachovia.


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The way this pooch's tail moves you'd think he could cool down an entire city during a heat wave.
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Should both kids get gifts when the other child has a birthday or "life event"?
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Have you ever tried to rip open one of those plastic packages many toys come in these days? How about trying to remove the toy after you've gotten the package open. I
On Christmas morning, we always find chocolate in some form stuffed in our stockings or under the tree at my house. There are so many options when it comes to chocolate, some tasty and others rich or even luxurious...
Ever open a Christmas gift and wonder what were they thinking? Maybe they waited till the last minute, and all they could find was cold cuts? Or the gift giver could have really thought you would love a membership to the mustard of the month club? All of this brings us to Joe & Cheryl's Impossible Question.
Everyone wraps gifts this time of year! We've all had to deal with odd shaped boxes and over sized presents. Joe & Cheryl's Impossible Question today has to do with gift wrapping!


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I was looking over the timeline, and realized what appears to be quite a discrepancy. Assuming the Bleach timeline begins in 2001, according to the early material, Masaki was killed 6 years prior, in 1995.
After the timeskip, we're in early 2003. Right now, we should be in summer 2003. Yet in 536-537, Isshin talks about how, "9 years ago on this day," Juhabach performed the Auswählen, resulting in Masaki's death.
Is this a mistranslation, or is it legitimate?Read more >