Winklevoss Consultants, Inc. v. Federal Insurance

174 F.R.D. 416, 1997 U.S. Dist. LEXIS 12509, 1997 WL 527305
CourtDistrict Court, N.D. Illinois
DecidedAugust 14, 1997
DocketNo. 97 C 1621
StatusPublished
Cited by11 cases

This text of 174 F.R.D. 416 (Winklevoss Consultants, Inc. v. Federal Insurance) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Winklevoss Consultants, Inc. v. Federal Insurance, 174 F.R.D. 416, 1997 U.S. Dist. LEXIS 12509, 1997 WL 527305 (N.D. Ill. 1997).

Opinion

MEMORANDUM OPINION AND ORDER

CASTILLO, District Judge.

The Winklevoss plaintiffs (collectively, “Winklevoss”) seek a declaratory judgment under 28 U.S.C. § 2201 that an insurance policy issued by defendant Federal Insurance Company requires Federal to defend and indemnify Winklevoss for business tort and trade secret claims brought in a separate action pending here in the Northern District [417]*417of Illinois.1 The underlying suit, entitled Lynchval Systems, Inc. v. Winklevoss Consultants, Inc. et al., alleges that Winklevoss misappropriated proprietary formulas Lynchval used to develop its computer software products. Winklevoss tendered the Lynchval action to Federal for a defense; Federal agreed to defend certain allegations added to Lynchval’s Second Amended Substitute Complaint but refused to defend or indemnify against the original allegations.

After Winklevoss filed this suit for declaratory relief, Federal brought a motion to dismiss, which is presently before the Court. Federal argues that this action should be dismissed under Federal Rule of Civil Procedure (“Rule”) 12(b)(7) for failure to join Lynchval, a professed “necessary” party under Rule 19. We disagree, and therefore deny the motion.

Before we discuss the propriety of dismissal or joinder, however, we must address a preliminary issue. Winklevoss’ complaint requests a judgment that Federal has both a duty to defend Winklevoss and.an obligation to indemnify it against a potential damage award in the Lynchval action. The Seventh Circuit is clear that the issue of whether an insurer must indemnify its insured is not ripe until the underlying litigation ends. Travelers Ins. Co. v. Penda Corp., 974 F.2d 823, 833 (7th Cir.1992); United Nat’l Ins. Co. v. Dunbar & Sullivan Dredging Co., 953 F.2d 334, 338 (7th Cir.1992). While the duty to defend “hinges on a liberal reading of the underlying complaint” and thus can be determined on the pleadings, the duty to indemnify “turns upon the facts of the underlying suit [ ].” Avemco Ins. Co. v. Acer Enters., Inc., 796 F.Supp. 343, 346-47 (N.D.Ill.1992) (internal citations and quotations omitted). “As such, the duty to indemnify is triggered, ‘only after the insured becomes legally obligated to pay damages in the underlying action.’ ” Id. (quoting Aetna Cas. & Sur. Co. v. Prestige Cas. Co., 195 Ill.App.3d 660, 664, 142 Ill.Dec. 689, 691, 553 N.E.2d 39, 41 (1st Dist.1990)). Because the Lynchval suit is still pending, we must stay the portion of Winklevoss’ complaint relating to Federal’s duty to indemnify until the Lynchval suit is over. We wül administratively dismiss this issue from the suit with leave to reinstate should the Lynchval court enter judgment against Winklevoss. Accordingly, we consider the issues of dismissal and joinder only with respect to the duty to defend portion of the litigation.

Joinder in federal court is governed by Rule 19. 7 Charles A. Wright et al. Federal Practice and Procedure § 1604 (2d ed. 1986). The Rule sets up a two-part analysis. United States ex rel. Hall v. Tribal Dev. Corp., 100 F.3d 476, 478 (7th Cir.1996). First, the court discerns whether the absent party is “necessary” under Rule 19(a). Id. A party is necessary if (1) the court cannot award complete relief in the party’s absence or (2) the absent party “ ‘claims an interest relating to the subject matter of the action,’ ” and the party’s absence will either (a) prejudice his ability to protect that interest or (b) “‘leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations.’ ” 7 Wright et al, § 1604 (quoting Fed.R.Civ.P. 19(a)). If none of these conditions is met, the party is not necessary and need not be joined. If the party is necessary, it must be joined unless it is not “feasible” to do so, i.e., the party is not subject to service of process, or its joinder would thwart diversity jurisdiction or venue. Id. When joinder is infeasible, the court moves on to the second inquiry, found in Rule 19(b); can the court proceed “in equity and good conscience” with the parties before it? Fed. R.Civ.P. 19(b). If not, the absent party is deemed indispensable; only in this circumstance may the court dismiss the lawsuit on the basis of nonjoinder. See Hall, 100 F.3d at 479. Because we determine that Lynchval is not even a necessary party under Rule 19(a), much less indispensable under Rule 19(b), dismissal is unwarranted.

Although the Seventh Circuit has not addressed the issue, federal courts in this district have uniformly held that a plaintiff suing the insured (the “injured party”) is not [418]*418an indispensable party to a declaratory judgment action that the insured brings to determine the insurer’s duty to defend. See, e.g., Fathers of the Order of Mount Carmel, Inc. v. National Ben Franklin Ins. Co., 697 F.Supp. 971, 973 (N.D.Ill.1988); Evangelical Lutheran Church v. Atlantic Mutual Ins. Co., 173 F.R.D. 507, 508-09 (N.D.Ill.1997); Americas Ins. Co. v. City of Chicago, 1997 WL 51436, at *1-2 (N.D.Ill. Feb. 3, 1997); Providence Hosp. v. Rollins Burdick Hunter of Illinois, Inc., 1993 WL 278552 (N.D.Ill. July 20, 1993); Sliwa v. Hunt, 1992 WL 346425, at *2 (N.D.Ill. Nov. 18, 1992). As Judge Shadur observed, ‘“Given the Supreme Court’s decision in the Provident Tradesmens case [Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 118, 88 S.Ct. 733, 742, 19 L.Ed.2d 936 (1968) ], it is unlikely that the injured party would be declared indispensable under Rule 19(b) today.’” Sliwa, 1992 WL 346425, at *1-2 (quoting 7 Wright et al., § 1619). Consequently, these courts have denied motions to dismiss for failure to join the injured party.

When faced squarely with the question whether the injured party is even a necessary party, requiring joinder instead of dismissal, our colleagues in this district have again answered “no.” For example, in Fathers of the Order of Mount Carmel, Inc. v. National Ben Franklin Ins. Co., the insured plaintiffs, who were being sued in state court, brought a declaratory judgment action against their insurance company, alleging that the policy obligated the insurer to defend the state court action. The insurer responded by moving to dismiss the declaratory judgment suit for failure to join the injured parties as necessary parties under Rule 19. The court denied the motion, distinguishing an Illinois Supreme Court case, M.F.A. Mutual Ins. Co. v. Cheek, 66 Ill.2d 492, 6 Ill.Dec. 862, 363 N.E.2d 809 (1977), in which the insurer

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174 F.R.D. 416, 1997 U.S. Dist. LEXIS 12509, 1997 WL 527305, Counsel Stack Legal Research, https://law.counselstack.com/opinion/winklevoss-consultants-inc-v-federal-insurance-ilnd-1997.