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Markel Insurance Co. v. United Emergency Medical Services, LLC

United States District Court, N.D. Indiana, Hammond Division

March 10, 2017

MARKEL INSURANCE COMPANY, Plaintiffs,
v.
UNITED EMERGENCY MEDICAL SERVICES, LLC, et al., Defendants. UNITED EMERGENCY MEDICAL SERVICES, Third Party Plaintiff,
v.
INSURANCE SERVICE CENTER n/k/a ARTHUR J. GALLAGHER & CO., et al., Third Party Defendants.

          OPINION AND ORDER

          PAUL R. CHERRY MAGISTRATE JUDGE.

         This matter is before the Court on a Motion to Strike Certain of Defendant Lillian Marlene Rau's Affirmative Defenses [DE 34], filed by Plaintiff Markel Insurance Company (“MIC”) on December 14, 2016. Defendant Lillian Marlene Rau filed a response on December 20, 2016, and MIC filed a reply on December 27, 2016.

         In an underlying lawsuit, Rau, as personal representative of Chester R. Stofko, filed a complaint for damages against United Emergency Medical Services, LLC (UEMS) and Abraham Nadermohammadi for alleged injuries to Stofko resulting from an automobile collision in which Stofko's vehicle was struck by an ambulance driven by Nadermohammadi. UEMS and Nadermohammadi sought coverage from MIC for this underlying suit.

         MIC brought the instant litigation, in which Nadermohammadi, UEMS, and Rau are named as Defendants, to declare the rights and other legal relations of the parties regarding a Business Auto Insurance Policy issued by MIC to UEMS. In the instant motion, MIC asks the Court to strike four of the affirmative defenses that Rau listed in her Answer to MIC's Amended Complaint.

         “A defense is an affirmative defense if it is specifically enumerated in Fed.R.Civ.P. 8(c), if the defendant bears the burden of proof, or if the defense does not require controverting the plaintiff's proof.” Perez v. PBI Bank, Inc., No. 1:14-CV-1429, 2015 WL 500874, at *5 (S.D. Ind. Feb. 4, 2015) (footnote omitted) (citing Winforge, Inc. v. Coachmen Indus., Inc., 691 F.3d 856, 872 (7th Cir. 2012)). Under Federal Rule of Civil Procedure 12(f), the Court “may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f); see also Delta Consulting Grp., Inc. v. R. Randle Constr., Inc., 554 F.3d 1133, 1141 (7th Cir. 2009) (citing Rule 12(f) and affirming the striking of portions of a counterclaim). The Seventh Circuit Court of Appeals has held that motions to strike are generally disfavored; however, a motion to strike may “serve to expedite, not delay, ” when it seeks to strike portions of a pleading to “remove unnecessary clutter from the case.” Heller Fin. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989). Affirmative defenses are stricken “only when they are insufficient on the face of the pleadings.” Williams v. Jader Fuel Co., Inc., 944 F.2d 1388, 1400 (7th Cir. 1991) (citing Heller, 883 F.2d at 1294). Affirmative defenses “must set forth a ‘short and plain statement' of the defense.” Heller Fin., 883 F.2d at 1294 (citation omitted) (quoting Fed.R.Civ.P. 8(a)).

         The Seventh Circuit Court of Appeals has not yet decided whether the pleading standard for a complaint set forth in Bell Atlantic v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), applies to all Rule 8 pleadings, including affirmative defenses. This Court continues to agree with those cases declining to apply the “plausibility” standard of Iqbal and Twombly to affirmative defenses. See Cottle v. Falcon Holdings Mgmt., LLC, Cause No. 2:11-CV-95, 2012 WL 266968, at *1-3 (N.D. Ind. Jan. 30, 2012) (Cherry, M.J.) (providing extensive discussion of the issue and citing supporting cases); see also Bielfeldt v. Bourazak, No. 1:15-CV-01419, 2016 WL 1383464, at *2 (C.D. Ill. Apr. 7, 2016). “Even under the liberal notice pleading standards . . ., an affirmative defense must include either direct or inferential allegations as to all elements of the defense asserted.” Pringle v. Garcia, Cause No. 2:09-CV-22, 2009 WL 1543460, at *1 (N.D. Ind. June 2, 2009) (quoting Reis Robotics USA, Inc. v. Concept Industries, Inc., 462 F.Supp.2d 897, 904 (N.D. Ill. 2006)).

         MIC seeks to have the Court strike Rau's Affirmative Defenses Nos. 1, 3, 4, and 5. Rau, in her response, withdraws Affirmative Defenses Nos. 1 and 5. Therefore, still at issue are Rau's Affirmative Defenses Nos. 3 and 4.

         A. Affirmative Defense No. 3

         Affirmative Defense Number 3 provides:

As an alternate pleading, the alleged absence of subject vehicle . . . from the insurance policy at issue in the above-captioned case was due in whole or in part to the acts and/or omissions of the agent for UEMS following non-parties: (a) Insurance Service Center, Inc. . . . (b) Jack L. Rosen . . . (c) Phillip B. Rosen . . . .

         First, though MIC, contends that Rau does not have standing to assert negligent procurement of insurance as a defense, the only argument MIC makes in support is citation to two opinions, neither of which has precedential authority and neither of which addresses standing to raise negligent procurement as an affirmative defense. MIC has not presented the Court adequate grounds upon which to strike the defense on the basis of lack of standing.

         Next, Rau's affirmative defense alleges that an agent for Defendant UEMS is responsible for the subject vehicle not being included in the insurance policy obtained from MIC. Even assuming that this is true, the affirmative defense fails to provide a ground upon which the relief requested in the Complaint-declaratory judgment that MIC has no duty to defend or indemnify Defendants UEMS and Nadermohammadi-should not be given. In her response to the instant motion, Rau argues that facts may be revealed in discovery that show that the named non-parties are actually agents of MIC, and, consequently, that MIC is liable for the non-parties' actions. However, the affirmative defense specifically states that the non-parties are UEMS's agents. As it is written, this affirmative defense places fault with UEMS, not MIC. Further, the argument that the non-parties are MIC's agents is presented in Affirmative Defense No. 2, which MIC does not seek to have stricken. In Affirmative Defense No. 3, there is no short and plain statement of facts that, if true, shows that MIC is not entitled to the relief it requests in its Complaint. The Court strikes this affirmative defense.

         B. ...


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