County of McHenry v. Insurance Company of the West

438 F.3d 813, 2006 U.S. App. LEXIS 4520, 2006 WL 435421
CourtCourt of Appeals for the Seventh Circuit
DecidedFebruary 24, 2006
Docket04-4223
StatusPublished
Cited by188 cases

This text of 438 F.3d 813 (County of McHenry v. Insurance Company of the West) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
County of McHenry v. Insurance Company of the West, 438 F.3d 813, 2006 U.S. App. LEXIS 4520, 2006 WL 435421 (7th Cir. 2006).

Opinion

FLAUM, Chief Judge.

The County of McHenry, Illinois (“County”) purchased an insurance policy from the Insurance Company of the West (“ICW”). ICW settled a $5 million claim on behalf of the County under the policy, but reserved the right to seek reimbursement from the County if it was determined that the policy did not cover the claim. ICW then sought to invoke the policy’s arbitration clause and resolve the issues of coverage and reimbursement before an arbitrator. In response, the County filed suit, seeking a declaration that ICW cannot require the County to arbitrate. The district court granted ICW’s motion to dismiss the suit for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The County appeals. For the following reasons, we affirm the order of the district court.

I. Background

ICW issued an insurance policy to the County, which includes an excess public entity coverage (“the policy”). The policy pays on claims made against the County, after the County’s self-insurance has been exhausted. The policy contains an arbitration provision, which states in relevant part:

N. ARBITRATION
In the event that a dispute arises between the Insured and the Company under this agreement or concerning when a claim or suit should be settled or the amount of such settlement, such dispute shall be subject to arbitration and both parties shall be bound by the findings and decision of the arbitrator or arbitrators.
The Company shall have the right, but not the duty, to determine when a claim or suit should be settled and may proceed to settle the claim or suit within its Limit of Liability. The insured and/or the company are entitled to require the other party to submit the dispute to arbitration.

(Emphasis added.)

In August 1999, Indeck Pleasant-Valley, Inc. (“Indeck”) sued the County for deny *816 ing a special use permit to construct and operate an electrical generation facility (“the Indeck claim”). Indeck sought declaratory and injunctive relief and $25 million in damages. The County instructed its broker, Marsh & McLennon, to place ICW on notice and ask ICW to protect the County’s rights in the Indeck suit. ICW took the position that, due to an exclusion in the policy, it did not have a duty to defend or indemnify the County for the Indeck claim.

Between March and October 2002, ICW filed two suits in district court, each seeking a declaration that ICW had no duty to defend or indemnify. At the time ICW filed these suits, it had not made any payment for the Indeek claim. Although not relevant to this appeal, the County was successful in having both suits dismissed for lack of subject matter jurisdiction, under Federal Rule of Civil Procedure 12(b)(1). On November 21, 2002, ICW paid its $5 million indemnity limit on the Indeck claim and obtained a release of all damages claims asserted by Indeck against the County.

In August 2003, ICW formally demanded arbitration of the coverage issues and appointed an arbitrator. The County rejected ICW’s arbitration demands, but selected and appointed John Brechin as an arbitrator, in the event the County was forced to arbitrate. ICW maintains that the County never provided contact information for Brechin, even after ICW requested the information multiple times. ICW then appointed a second member (not Brechin) to the three-member arbitration panel and directed the two existing members to appoint a third member.

ICW, over the County’s objections, directed the arbitration to begin, leading to the present suit. The County sued for declaratory judgment in March 2004, arguing that the arbitration agreement in the policy does not apply to the Indeck claim or, alternatively, that ICW had waived its right to demand arbitration by previously filing suits related to coverage of the In-deck claim (“waiver argument”). ICW moved to stay pursuant to 9 U.S.C. § 3 and to dismiss pursuant to Rule 12(b)(6). ICW argued that the arbitrators — not the district court — are to determine whether the parties’ disputes are subject to the policy’s arbitration clause and that all disputes between the parties are subject to arbitration. The County responded to the Rule 12(b)(6) motion by arguing: 1) that the issues ICW sought to arbitrate were not covered by the arbitration agreement; and 2) that Illinois law does not allow an insurer to seek reimbursement from an insured. The County did not include its waiver argument in its response to ICW’s motion to dismiss.

On October 25, 2004, the district court granted ICW’s Rule 12(b)(6) motion and dismissed the suit. According to the district court, the central issues were whether the question of arbitrability should be made by an arbitrator, and alternately, whether the parties’ disputes are within the policy’s arbitration provision. The district court found that the court, not an arbitrator, should determine the issue of arbitrability. Next, the district court explained that “in the context of the arbitration provision, it is clear that the use of the term ‘under this agreement’ was meant to cover disputes arising under any part of the insurance policy,” including disputes over coverage and reimbursement. Finally, the district court refused to consider whether the policy or Illinois- law allow ICW to seek reimbursement, finding that to be a merits issue that must be resolved by the arbitrators.

The County filed a motion under Federal Rule of Civil Procedure 59(e) to amend or alter the judgment. The County ar *817 gued — as it did in its complaint but not in response to ICW’s motion to dismiss — that ICW had waived the issue of arbitrability by bringing two suits on the Indeck claim. The district court denied the County’s motion. The district court found that although the County raised the waiver issue in its initial complaint, it should have made the waiver argument in response to ICW’s motion to dismiss, and it was too late to raise the issue in a Rule 59(e) motion. The County appeals.

II. Discussion

‘When a district court grants a motion to dismiss under Rule 12(b)(6), our review is de novo.” Stachowski v. Town of Cicero, 425 F.3d 1075, 1078 (7th Cir.2005).

We construe the complaint “in the light most favorable to the plaintiff, taking as true all well-pleaded factual allegations and making all possible inferences .from those allegations in his or her favor.” We shall affirm the dismissal only if it “ ‘appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ”

Barnes v. Briley, 420 F.3d 673, 677 (7th Cir.2005) (internal citations omitted).

The County raises two main issues on appeal.

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438 F.3d 813, 2006 U.S. App. LEXIS 4520, 2006 WL 435421, Counsel Stack Legal Research, https://law.counselstack.com/opinion/county-of-mchenry-v-insurance-company-of-the-west-ca7-2006.