Livingston v. Trustguard Insurance

558 F. App'x 681
CourtCourt of Appeals for the Seventh Circuit
DecidedMarch 27, 2014
DocketNo. 13-3522
StatusPublished
Cited by1 cases

This text of 558 F. App'x 681 (Livingston v. Trustguard Insurance) 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
Livingston v. Trustguard Insurance, 558 F. App'x 681 (7th Cir. 2014).

Opinion

ORDER

Bruce Livingston filed a claim with Trustguard Insurance seeking underin-sured-motorist coverage through his car-insurance policy. The policy required Livingston to exhaust the limits of “any” policies covering the underinsured motorist. Trustguard denied the claim on the ground that Livingston had exhausted only one of the underinsured driver’s two policies, and Livingston sued Trustguard for breach of contract and consumer fraud. The district court granted judgment on the pleadings, agreeing with Trustguard that requiring Livingston to exhaust “any” policies of the underinsured means “all” of them. Because the court correctly construed the insurance policy, we affirm the judgment.

Livingston was involved in a car accident in 2009, and he sought to recoup expenses related to his neck and shoulder injuries by suing the other driver in state court. The other driver was covered by two insurance policies; he had a personal liability policy with a $100,000 coverage limit, and the borrowed car he had been driving was separately insured by a $100,000 policy through another insurance company. After the company insuring the borrowed car settled with Livingston (paying out the full $100,000), he submitted a claim for underinsured-motorist coverage under his Trustguard policy. A provision relating to that coverage requires him to exhaust the limits of “any” applicable policies before Trustguard is obligated to pay: “We will pay under this coverage only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements....” Based on the view that this provision required Livingston to exhaust the coverage of both policies covering the other driver, Trust-guard denied his claim.

Livingston then brought this diversity suit against Trustguard. For his breach-of-contract claim, Livingston contends that he exhausted “any applicable bodily injury bonds or policies” by collecting insurance proceeds from one of the other driver’s two insurers. He argues that the provision’s requirement is at least ambiguous enough to require discovery, and he adds that it is wrong to grant judgment against a plaintiff on the pleadings if the case involves the interpretation of a complicated document and the plaintiff is an “unsophisticated reader.” As for consumer fraud, Livingston alleges that Trustguard used the word “any” to trick him into buying a more expensive policy that he thought allowed him to exhaust fewer than “all” of an underinsured’s policies. The district court granted Trustguard’s motion for judgment on the pleadings, ruling that the word “any” unambiguously means “all” in the context of the exhaustion provision. The court also ruled that Livingston failed to plead a claim of consumer fraud with required particularity.

Livingston renews his arguments on appeal, but before addressing the merits, we briefly pause to consider Livingston’s statements, made in his reply brief, that he has now exhausted both of the other policies and that Trustguard has “admitted coverage” (though it hasn’t yet paid anything). Because this case turns on the scope of the exhaustion requirement, these statements raise the question whether the case is moot. On this record, however, we [683]*683cannot say that it is. If Livingston’s interpretation of the policy is correct, he might be able to obtain contract damages for Trustguard’s delay in paying him. And even if his contract claim were moot, Livingston separately seeks restitution in his consumer-fraud claim for allegedly inflated premiums. With some relief still possible, the case is not moot, see In re complaint. The district court’s denial of leave to amend a complaint is reviewed for an abuse of discretion. See Am. United Logistics, Inc. v. Catellus Dev. Corp., 319 F.3d 921, 925-26 (7th Cir.2003). Generally, leave to amend a complaint should be freely given unless it is certain from the face of the complaint that any amendment would not be able to cure the complaint’s defect. Barry Aviation Inc. v. Land O’Lakes Municipal Airport Com’n, 377 F.3d 682, 687 (7th Cir.2004). Fisher’s argument fails because there is no set of facts that he could plead that would save his complaint. Kochert foreclosed his ability to bring suit, as he was not the most efficient enforcer to bring an antitrust suit. Accordingly, the district court did not abuse its discretion when it denied Fisher’s request to amend his complaint.complaint. The district court’s denial of leave to amend a complaint is reviewed for an abuse of discretion. See Am. United Logistics, Inc. v. Catellus Dev. Corp., 319 F.3d 921, 925-26 (7th Cir.2003). Generally, leave to amend a complaint should be freely given unless it is certain from the face of the complaint that any amendment would not be able to cure the complaint’s defect. Barry Aviation Inc. v. Land O’Lakes Municipal Airport Com’n, 377 F.3d 682, 687 (7th Cir.2004). Fisher’s argument fails because there is no set of facts that he could plead that would save his complaint. Kochert foreclosed his ability to bring suit, as he was not the most efficient enforcer to bring an antitrust suit. Accordingly, the district court did not abuse its discretion when it denied Fisher’s request to amend his complaint.Envirodyne Indus., Inc., 29 F.3d 301, 303-04 (7th Cir.1994), and we may proceed to the merits.

We first address Livingston’s argument that because he is an unsophisticated reader, the court couldn’t grant judgment on the pleadings based on the meaning of the word “any.” He latches on to language in our cases involving claims that debt collectors issued confusing notices of verification, see, e.g., Walker v. Nat’l Recovery, Inc., 200 F.3d 500, 501 (7th Cir.1999); Johnson v. Revenue Mgmt. Corp., 169 F.3d 1057, 1058-60 (7th Cir.1999). But those cases were based on provisions of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692e et seq., and don’t apply to a case involving the meaning of an insurance policy, which is a contract under Illinois law, see Hobbs v. Hartford Ins. Co., 214 Ill.2d 11, 291 Ill.Dec. 269, 823 N.E.2d 561, 564 (2005). An ambiguous provision in Livingston’s policy should be construed liberally in his favor, see id., but unambiguous provisions must be applied as written, see Gallagher v. Lenart, 226 Ill.2d 208, 314 Ill.Dec. 133, 874 N.E.2d 43, 58 (2007); Hobbs, 291 Ill.Dec. 269, 823 N.E.2d at 564. Our task, then, is to decide whether the contested provision is ambiguous — that is, if it is “subject to more than one reasonable interpretation.” Hobbs, 291 Ill.Dec. 269, 823 N.E.2d at 564; see also Gallagher, 314 Ill.Dec. 133, 874 N.E.2d at 58.

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Bluebook (online)
558 F. App'x 681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/livingston-v-trustguard-insurance-ca7-2014.