United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
William C. Lee United States District Judge
the Court are Defendant, Nautilus Insurance Company's
(“Nautilus's”) Motion to Dismiss for failure
to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) [DE 8] and
Request for Oral Argument [DE 10]. For the following reasons,
the Motion to Dismiss will be DENIED as will the Request for
has moved to dismiss plaintiffs' claims pursuant to
Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which
relief may be granted. To survive a Rule 12(b)(6) motion to
dismiss, a complaint must “contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.' ” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A facially
plausible claim is one that allows “the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
ruling on a 12(b)(6) motion, the Court will “accept the
well-pleaded facts in the complaint as true, ” but will
not defer to “legal conclusions and conclusory
allegations merely reciting the elements of the claim.”
McCauley v. City of Chicago, 671 F.3d 611, 616 (7th
Cir. 2011). Mindful of these standards, the Court turns now
to the allegations in the Complaint.
issued a policy of commercial liability insurance (hereafter,
“the Policy”) to CMF for the time period of
November 10, 2014 through November 10, 2015. (A copy of the
Policy is attached as Exh. A to the Complaint). The Policy
contains policy limits of $1, 000, 000 per occurrence and a
$2, 000, 000 general aggregate. Section I of the Policy
provides coverage for a Loss which is not otherwise excluded
under any Policy Exclusions:
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally
obligated to pay as damages because of ‘bodily
injury' or ‘property damage' to which this
insurance applies… The Policy goes on to provide:
b. This insurance applies to ‘bodily injury' and
‘property damage' only if:
(1) The ‘bodily injury' or ‘property
damage' is caused by an ‘occurrence' that takes
place in the ‘coverage territory' as defined by the
(2) The ‘bodily injury' or ‘property
damage' occurs during the policy period; and (3) Prior to
the policy period, no insured listed under Paragraph 1 of
Section II - Who is An Insured and no ‘employee'
authorized by you to give or receive notice of an
‘occurrence' or claim, knew that the ‘bodily
injury' or ‘property damage' had occurred, in
whole or in part. If such a listed insured or authorized
‘employee' knew prior to the policy period, that
the ‘bodily injury' or ‘property damage'
occurred, then any continuation, change, or resumption of
such ‘bodily injury' or ‘property damage'
during or after the policy period will be deemed to have been
known prior to the policy period.
(Complaint, DE 2, at ¶12, Exh. A at p. 27).
an incident on June 30, 2015, CMF, along with others, was
sued by Cincinnati Insurance Company
(“Cincinnati”) in the Court of Common of
Montgomery County, Ohio, cause no. 2017-CB-02760 (the
“Lawsuit”). (Complaint at ¶6). In the
Lawsuit, Cincinnati generally alleged that CMF “was
negligent and caused damages to a balemaster by dropping it
from a forklift while unloading it at 4 Over Properties in