Old Republic Insurance Company v. Ideal Aviation Illinois, LLC

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

OLD REPUBLIC INSURANCE COMPANY,

Plaintiff,

v. Case No. 23-cv-2728-JPG

IDEAL AVIATION ILLINOIS, LLC; PARKS

AVIATION HOLDINGS, LLC; and COLIN

FOPPE,

Defendants.

MEMORANDUM AND ORDER

This matter comes before the Court on the cross-motions for summary judgment in this

action seeking a declaratory judgment over the coverage of two insurance policies plaintiff Old

Republic Insurance Company (“Old Republic”) issued to defendants Ideal Aviation Illinois, LLC

and Parks Aviation Holdings, LLC (collectively “Ideal/Parks”). Ideal/Parks has defaulted,

leaving only defendant Colin Foppe, the injured party in the underlying tort action, to argue for

policy coverage. Old Republic has moved for summary judgment (Doc. 44), and Foppe has

responded (Doc. 46). Foppe has also moved for summary judgment (Doc. 45), Old Republic

has responded (Docs. 47 & 48), and Foppe has replied (Doc. 49).

I. Background

This case arose after Foppe was struck and injured by the propeller of an aircraft owned

and maintained by Ideal/Parks that it had rented to Brett Whitcomb for a flight with Foppe.

When the aircraft would not start, Foppe began inspecting the aircraft, and the propeller suddenly

started spinning and struck his head. Old Republic had issued two insurance policies to

Ideal/Parks: the Aviation Policy and the Airport Policy. In this suit, Old Republic seeks a

declaration that it owes no duty to defend or indemnify Ideal/Parks under either policy with

respect to an underlying tort lawsuit by Foppe. Alternatively, it argues that its liability is limited

under the Aviation Policy. Foppe concedes that Old Republic has no duty to defend or

indemnify under the Airport Policy but maintains that there is coverage under the Aviation

Policy.

The Court finds that Old Republic owes a duty to defend Ideal/Parks under the Aviation

Policy despite its arguably late notice. However, further questions of liability limits and the duty

to indemnify are not ripe for decision since Ideal/Parks has not yet incurred any liability.

II. Summary Judgment Standard

Summary judgment must be granted “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels

Int’l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). In this declaratory judgment action where

there are cross-motions for summary judgment, the parties agree on the material facts and the

relevant law, but they disagree about how the law applies to the facts.

III. Facts

The parties essentially agree to the following relevant facts for the purposes of this

motion.1

A. The Incident

Ideal/Parks owned and maintained a 2004 Piper Seminole aircraft (the “aircraft”) it kept

at the St. Louis Downtown Airport (“CPS Airport”) in Cahokia Heights, Illinois. It was in the

1 Foppe asks the Court to strike Old Republic’s motion for summary judgment because it does

not comply with SDIL-LR 56.1(a) with respect to stating material facts. In fact, it does not

comply. However, the Court declines to strike an entire brief because of a mistake of form

where there is no real dispute as to the material facts. Even if the Court were to disregard Old

Republic’s factual allegations, the facts for the purpose of this motion would remain the same.

business of renting this aircraft and maintained two insurance policies from Old Republic

covering the relevant time period. The first was an Aviation Policy, which covered the aircraft

against liability; the second was an Airport Policy, which covered Ideal/Parks’s fixed base

operations at the CPS Airport against liability. The Court will discuss the policies in more detail

later.

On July 5, 2021, Ideal/Parks rented the aircraft to Whitcomb so he could complete a

check ride while being observed by Foppe, a flight instructor. The aircraft would not start

through the standard ignition process, using a jump-start cable, or using a prop-start.2 It

appeared that the battery would not hold a charge. Whitcomb and Foppe called off the flight,

turned everything in the aircraft off, and began the process of taking the aircraft back to the

hangar.

While Whitcomb went to get a tow bar, Foppe went to the front of the aircraft in

preparation for pushing it back to the hangar. While there, he attempted to visually inspect the

aircraft to see if he could determine why it would not start. Foppe approached one of the engines

and slightly placed his hand on the propeller to position it to get out of the way of his preferred

contact point to push the aircraft back to the hangar. The propeller suddenly jerked and struck

him in the head, which caused him to fall to the ground. He suffered serious injuries, including

traumatic brain injury (“TBI”), and other losses. As a consequence of his TBI, the Federal

Aviation Administration revoked his eligibility for airman medical certification.

Foppe informed Ideal/Parks of the incident the day it happened, July 5, 2021. More than

2 “Prop-starting” means manually pulling the propeller to start it spinning. See Dave Hirschman,

Clear Prop! How to safely hand-prop and airplane, Aircraft Owner and Pilots Assoc. (Feb. 25,

2020), https://www.aopa.org/news-and-media/all-news/2020/march/flight-training-magazine/ol-

hand-propping (visited Oct. 1, 2024); Foppe’s Mot. Summ. J. Ex. 2, Foppe Dep. 37:14-22 (Doc.

44-2 at 10).

ten months later, on May 24, 2022, Ideal/Parks first notified Old Republic in writing of the

incident. Nevertheless, Old Republic has all the witness statements and other evidence necessary

to make its coverage determination despite the late notice.

B. Aviation Policy

The Aviation Policy provides liability coverage for amounts Ideal/Parks becomes liable

to pay because of bodily injury suffered by anyone, including passengers, caused by an

occurrence and arising out of the ownership, maintenance, or use of the aircraft. Aviation

Policy, Insuring Agreements, § I Liability Coverages, Coverage D (Doc. 12-2 at 54); Aviation

Policy, Declarations, Item 4D. (Doc. 12-2 at 4) (clarifying that passengers are included). It states

the policy limits like this:

LIMITS OF LIABILITY

ITEM 4. LIABILITY COVERAGES EACH PERSON EACH OCCURRENCE

D. SINGLE LIMIT BODILY INJURY, INCLUDING

PASSENGERS, AND PROPERTY DAMAGE; $ 1,000,000 §

PASSENGER LIABILITY LIMITED TO: $ 100,000 tk ek

Aviation Policy, Declarations, Item 4D (Doc. 12-2 at 4). The Aviation Policy defines a

passenger as “any person in, on, or boarding the aircraft for the purpose of riding or flying

therein or alighting therefrom after a flight or attempted flight therein, including pilot(s) or crew

member(s).” Aviation Policy, Definitions (Doc. 12-2 at 60). The Aviation Policy also requires

Ideal/Parks to give Old Republic written notice a soon as practicable after an occurrence.

Aviation Policy, Conditions, Applicable to Coverages A, B, C and D (Bodily Injury And

Property Damage) (Doc. 12-2 at 60).

C. The Litigation

On July 3, 2023, Foppe filed a tort suit in the Circuit Court of the Twentieth Judicial

Circuit, St. Clair County, Ilinois against Ideal/Parks. See Foppe v. Ideal Aviation Illinois LLC

and Parks Aviation Holdings, LLC, No. 23 LA 0778. He alleges that Ideal/Parks was negligent

in its duties to ensure the aircraft was airworthy and properly maintained, including by

conducting inspection of the battery and electrical system, before allowing it to be used by

students. Failing that, Foppe asserts Ideal/Parks had a duty to remove the defective aircraft from

service and supply an airworthy aircraft instead.

In the instant case, filed in August 2023, Old Republic seeks a declaratory judgment that

neither the Aviation Policy (Count I) nor the Airport Policy (Counts II and IV) covers liability

from Foppe’s claims for personal injury in the underlying lawsuit. It further claims that if there

is coverage under the Aviation Policy, its liability is limited to the “per passenger” coverage

amount (Count III). Ideal/Parks was served with process but did not respond and has since been

defaulted. Old Republic’s motion for summary judgment relies on three principal arguments:

(1) Ideal/Parks failed to give the written notice required by both policies to be given “as soon as

practicable,” (2) the Airport Policy excludes coverage for damage arising out of an aircraft

rented by Ideal/Parks to someone else; and (3) if the Aviation Policy provides coverage, it is

limited to $100,000 because Foppe was a “passenger.”

In his motion for summary judgment Foppe seeks a declaration of coverage only under

the Aviation Policy, not the Airport Policy. In fact, he concedes that Old Republic has no duty to

defend or indemnity Ideal/Parks under the Airport Policy. Consequently, the Court will grant

summary judgment for Old Republic on Count IV and will find Count II moot.

As for the Aviation Policy, however, Foppe contends that Ideal/Parks’s late notice to Old

Republic was reasonable in light of the ambiguity and complexity of the notice provision and the

lack of prejudice, so it should not negate coverage. He also argues that he was not a

“passenger,” so the $100,000 liability cap does not apply.

IV. Discussion

A. Applicable Law

Under Illinois law, which all parties agree applies to this action, an insurer has an

obligation to defend its insured in an underlying lawsuit if the complaint in the underlying

lawsuit alleges facts potentially within the coverage of the insurance policy, even if the

allegations end up being groundless, false or fraudulent. Gen. Agents Ins. Co. of Am., Inc. v.

Midwest Sporting Goods Co., 828 N.E.2d 1092, 1098 (Ill. 2005). The duty to defend is broader

than the duty to indemnify. Pekin Ins. Co. v. Wilson, 930 N.E.2d 1011, 1017 (Ill. 2010).

Therefore, if there is no duty to defend, there is necessarily no duty to indemnify. Crum &

Forster Managers Corp. v. Resolution Trust Corp., 620 N.E.2d 1073, 1081 (Ill. 1993); Nat’l

Cas. Co. v. McFatridge, 604 F.3d 335, 338 (7th Cir. 2010).3

To determine if the underlying suit alleges a situation potentially within the insurance

coverage, the Court compares the complaint to the relevant provisions of the insurance policy.

Gen. Agents, 838 N.E.2d at 1098. If any theory of recovery in the underlying complaint

potentially falls within the insurance coverage, the insurer will have a duty to defend. Id. In

comparing the policy and the underlying complaint, the Court must give the documents a liberal

construction in favor of the insured. Country Mut. Ins. Co. v. Carr, 867 N.E.2d 1157, 1160 (Ill.

App. Ct. 2007); Nat’l Union Fire Ins. Co of Pittsburgh v. Glenview Park Dist., 632 N.E.2d 1039,

1042 (Ill. 1994).

3 The Seventh Circuit Court of Appeals recognized an exception to this general rule where there

was no duty to defend because there was no underlying lawsuit filed. Where the duty to defend

is determined on the basis of whether there is an underlying lawsuit rather than whether the

allegations of an underlying complaint are potentially within the insurance policy’s coverage,

this general rule does not hold true. Sokol & Co. v. Atlantic Mut. Ins. Co., 430 F.3d 417, 421

(7th Cir. 2005). However, there is an underlying lawsuit in this case, so the traditional rule

articulated in Crum & Forster holds true.

Under Illinois law, interpretation of an insurance policy, even an ambiguous policy, is a

matter of law. Crum & Forster, 620 N.E.2d at 1077; River v. Com. Life Ins. Co., 160 F.3d 1164,

1169 (7th Cir. 1998). In interpreting a policy, the Court must attempt to effectuate the parties’

intention as expressed by the policy. Valley Forge Ins. Co. v. Swiderski Elecs., Inc., 860 N.E.2d

307, 314 (Ill. 2006). “[T]he court must construe the policy as a whole, taking into account the

type of insurance purchased, the nature of the risks involved, and the overall purpose of the

contract.” Nicor, Inc. v. Assoc. Elec. & Gas Ins. Servs., 860 N.E.2d 280, 286 (Ill. 2006). If the

policy is unambiguous, the Court must construe it according to the plain and ordinary meaning of

its terms. Valley Forge, 860 N.E.2d at 314. On the other hand, if the policy is ambiguous, the

Court must construe all ambiguities in favor of the insured and against the insurer, who drafted

the policy. Id.

Generally, the insured bears the burden of proving the claim is covered under a policy’s

grant of coverage, and the insurer bears the burden of proving an exclusion or limitation applies.

Addison Ins. Co. v. Fay, 905 N.E.2d 747, 752 (Ill. 2009); Travelers Pers. Ins. Co. v. Edwards, 48

N.E.3d 298, 303 (Ill. App. Ct. 2016).

B. Notice Requirement

Old Republic seeks to wipe out any obligation to defend or indemnify Ideal/Parks under

the Aviation Policy in one fell swoop by enforcing the notice requirement:

1. NOTICE OF OCCURRENCE. When an occurrence takes place written

notice shall be given by or on behalf of the lnsured [Ideal/Parks] to the Company

[Old Republic] at their nearest office as soon as practicable. Such notice shall

contain particulars sufficient to identify the Insured and also reasonably

obtainable information respecting the time, place and circumstances of the

occurrence, the names and addresses of the injured and of available witnesses.

Aviation Policy, Conditions, Applicable to Coverages A, B, C and D (Bodily Injury And

Property Damage) (Doc. 12-2 at 60).

“Insurance policy notice provisions impose valid prerequisites to insurance coverage.”

W. Am. Ins. Co. v. Yorkville Nat. Bank, 939 N.E.2d 288, 293 (Ill. 2010). A notice requirement

“affords the insurer an opportunity to make a timely and thorough investigation and to gather and

preserve possible evidence.” Barrington Consol. High Sch. v. Am. Ins. Co., 319 N.E.2d 25, 27

(Ill. 1974); accord State Auto Prop. & Cas. Ins. Co. v. Brumit Servs., Inc., 877 F.3d 355, 357

(7th Cir. 2017); Kerr v. Ill. Cent. R. Co., 670 N.E.2d 759, 767 (Ill. App. Ct. 1996). An insured’s

breach of a notice provision will absolve the insurer of any obligation to defend or indemnify.

Yorkville Nat’l Bank, 939 N.E.2d at 293; Brumit Servs., 877 F.3d at 357.

The Illinois Supreme Court has held that where an insurance policy requires notice “as

soon as practicable,” it means notice must be given “within a reasonable time,” which will

depend on the facts and circumstances of each case. Yorkville Nat’l Bank, 939 N.E.2d at 293.

(citing Country Mut. Ins. Co. v. Livorsi Marine, Inc., 856 N.E.2d 338, 343 (Ill. 2006)). Yorkville

National Bank provides a non-exhaustive list of facts and circumstances that the Court may

consider in determining whether notice was given within a reasonable time: “(1) the specific

language of the policy’s notice provision; (2) the insured’s sophistication in commerce and

insurance matters; (3) the insured’s awareness of an event that may trigger insurance coverage;

(4) the insured’s diligence in ascertaining whether policy coverage is available; and (5) prejudice

to the insurer.” Yorkville Nat’l Bank, 939 F.3d at 293-94; accord Brumit Servs., 877 F.3d at

358. “Where the facts are undisputed, the reasonableness of notice to an insurer by its insured is

a question of law.” Kerr, 670 N.E.2d at 766.

All parties agree that written notice was not provided to Old Republic until more than 10

months after Foppe’s injury. Because the Aviation Policy required written notice to be given “as

soon as practicable,” the relevant question is whether that notice was given “within a reasonable

time.” The Court considers each of the Yorkville National Bank factors in turn, then asks

whether there are any other relevant circumstances.

1. The Language in the Notice Provision

Despite Foppe’s assertion that the notice provision is ambiguous, the Court finds its

relevant aspects are clear and not subject to more than one reasonable understanding. Nor is the

notice provision unduly complicated. It begins with mandatory language—“written notice shall

be given”—that does not expressly admit an exception. It is true that it does not require notice

within a specific time period, but “as soon as practicable” leaves room for different facts and

circumstances of each occurrence. Further, Illinois court equate “as soon as practicable” with

“within a reasonable time,” which is a common phrase in the law that does not lead to ambiguity

simply because it is not definite.

It is further clear that the notice must provide some basic information: the identity of the

insured so Old Republic knows which policy might apply; the details of the occurrence—the

who, what, why, and where; the identity and address of the victim; and the identity and address

of any witnesses who were available. Where Old Republic does not decline coverage because of

a defective notice—that is, one that does not contain the right or enough details—but instead

declines coverage on the grounds that no written notice was given at all, any ambiguity in the

details required in the notice is immaterial. Similarly, where the Ideal/Parks does not claim the

delay was caused by its inability to understand or diligently corral the requested details, the

language in the provision does little to justify a 10-month delay.

This factor weighs in favor of finding the delay was unreasonable.

2. Ideal/Parks’s Sophistication in Commerce and Insurance Matters

It is likely that Old Republic is a very sophisticated business well-versed in insurance

negotiation and insurance law. See Old Republic Insurance Group, Old Republic Insurance

Company, https://www.oldrepublicinsurancegroup.com/companies/old-republic-insurance-

company (visited Oct. 3, 2024). And while there is no evidence in the file as to the

sophistication of Ideal/Parks, it is reasonable to assume it is less sophisticated than Old Republic

about insurance matters simply because it does not appear it is in the insurance business.

Nevertheless, nothing in the file suggests Ideal/Parks did not understand how insurance works or

its obligation under the notice provision to inform Old Republic of Foppe’s injury caused by a

blow from Ideal/Parks’s aircraft. This factor weighs, but only slightly, in favor of Ideal/Parks’s

delay being reasonable.

3. Ideal/Parks’s Awareness of Foppe’s Injury

Foppe testified in his deposition that he spoke on the phone to Ideal/Parks’s owner the

afternoon of his injury and told him that he had been struck in the head at the airport. It is

reasonable to assume from this conversation that Ideal/Parks was aware of Foppe’s head injury

and its connection to an aircraft owned by Ideal/Parks. Certainly this is the type of accident a

reasonable aircraft owner would know might lead to a claim or a lawsuit. Since Ideal/Parks

knew of the incident, Foppe’s injuries, and the potential for litigation the day of the accident, this

factor weighs of finding a 10-month delay was unreasonable.

4. Ideal/Parks’s Diligence in Ascertaining Policy Coverage

There is no evidence in the record regarding Ideal/Parks’s diligence in ascertaining

whether the Aviation Policy provided coverage. From an objective standpoint, it is reasonable to

expect the owner of the aircraft to look into insurance coverage soon after it learns that the

aircraft was malfunctioning and then struck the victim. There is no evidence in the record that

Ideal/Parks made any such inquiries. The Court notes that Ideal/Parks has defaulted in this case

without even appearing, which suggests it is not now diligently pursuing insurance coverage.

This factor weighs slightly in favor of finding notice was not given within a reasonable time.

5. Prejudice to Old Republic

Foppe insists that Old Republic has been provided all relevant materials and information

about this case. Thus, he argues, the purposes of a notice provision—to give the insurer an

opportunity to thoroughly investigate before evidence becomes stale or is lost—had been served.

Indeed, Old Republic does not point to any prejudice it has suffered because it did not learn of

the incident in writing within 10 months after it happened. For example, it does not argue that

the aircraft is not in the same condition it was on July 5, 2021, when it could have made a

comprehensive evaluation of Ideal/Parks’s maintenance of the aircraft. It also does not argue

that it has lost an opportunity to evaluate Foppe’s injuries when they were fresh so that it could

later tease out health issues that may have no connection to the accident. Old Republic makes no

such arguments, so the Court must assume there are none to be made.

The lack of any prejudice weighs in favor of finding written notice was given in a

reasonable time.

6. Other Relevant Factors

Another factor is not argued by either party but strikes the Court as important. While Old

Republic did not receive written notice until May 2022, 10 months after the incident, it received

that notice more than a year before Foppe filed his underlying lawsuit in July 2023. Even if the

freshest recollections were not available, Old Republic had more than a year to investigate and

assess Foppe’s claim and negotiate with him in an effort to head off a lawsuit. This factor

weighs in favor of finding the notice was within a reasonable time.

7. Reasonableness of Ideal/Parks’s Notice

In light of the specific facts and circumstances of this case, the Court finds the 10-month-

late notice was given as soon as practicable, that is, within a reasonable time. The Court

acknowledges that it is not necessary to show prejudice to find a late notice unreasonable.

Prejudice is one of the many relevant facts and circumstances that go into the Court’s decision

whether late notice was reasonable. However, the Court gives it great weight because it fits

hand-in-glove with the purpose of the notice requirement—“afford[ing] the insurer an

opportunity to make a timely and thorough investigation and to gather and preserve possible

evidence.” Barrington Consol. High Sch. v. Am. Ins. Co., 319 N.E.2d 25, 27 (Ill. 1974). Where

this purpose is not defeated by late notice, the late notice is more likely to be reasonable. Here,

while most of the other Yorkville National Bank factors weigh against reasonableness, the Court

find the lack of prejudice outweighs those other factors in the circumstances of this case.

Therefore, it finds the late notice was reasonable and was given “as soon as practicable.”

The Court now turns to the question of which limitation of liability applies.

C. Liability Limits

Since the Court has determined that Aviation Policy coverage is not negated by late

notice, the parties ask the Court to determine whether Foppe was a “passenger” of the aircraft at

the time he was injured. His status would determine whether Old Republic’s liability is limited

to $100,000 or $1 million.

Like the question of Old Republic’s duty to indemnify Ideal/Parks, which is discussed

below, such a question is not ripe for decision until Ideal/Parks has incurred some liability—

indeed, more than $100,000 of liability—for Foppe’s injuries. But Foppe’s underlying suit has

not progressed far enough to establish any liability for Ideal/Parks.

D. Duty to Indemnify

As noted above, the duty to indemnify is narrower than the duty to defend. Pekin Ins.

Co. v. Wilson, 930 N.E.2d 1011, 1017 (Ill. 2010). Therefore, if there is no duty to defend, there

is necessarily no duty to indemnify. Nat’l Cas. Co. v. McFatridge, 604 F.3d 335, 338 (7th Cir.

2010). Conversely, if there is a duty to defend, as the Court has found, there may also be a duty

to indemnify. However, where no liability has been incurred by the insured, a federal

declaratory judgment regarding the duty to defend is premature.

“[J]ust like suits for every other type of remedy, declaratory-judgment actions must

satisfy Article III’s case-or-controversy requirement.” California v. Texas, 593 U.S. 659, 672

(2021). “[T]he dispute must be real and substantial and admit of specific relief through a decree

of a conclusive character, as distinguished from an opinion advising what the law would be upon

a hypothetical state of facts.” Id. (internal quotations omitted).

The Court of Appeals for the Seventh Circuit has consistently held that claims for

declarations of an insurer’s duty to indemnify an insured do not present a ripe case or

controversy until the insured becomes liable. Lear Corp. v. Johnson Elec. Holdings Ltd., 353

F.3d 580, 583 (7th Cir. 2003) (“decisions about indemnity should be postponed until the

underlying liability has been established”); Nationwide Ins. Co. v. Zavalis, 52 F.3d 689, 693 (7th

Cir. 1995) (“[T]he duty to indemnify is not ripe for adjudication until the insured is in fact held

liable in the underlying suit.”). That is because before liability is incurred, the decision is usually

abstract, and any opinion would be advisory; it would be a waste of the Court’s time if the events

never come to pass. Lear, 353 F.3d at 583. In contrast, the duty to defend is real and ripe for

adjudication once underlying litigation commenced. Id. Where the Court declines to declare a

duty to indemnify because the insured has incurred no liability yet, it should dismiss the duty to

indemnify claims without prejudice. Med. Assur. Co. v. Hellman, 610 F.3d 371, 375 (7th Cir.

2010); Zavalis, 52 F.3d at 693.

Illinois state courts agree and have adopted the Peppers Doctrine, named after Maryland

Cas. Co. v. Peppers, 355 N.E.2d 24, 30 (Ill. 1976). Under that doctrine, “the question of whether

the insurer has a duty to indemnify the insured for a particular liability is only ripe for

consideration if the insured has already incurred liability in the underlying claim against it.”

Outboard Marine Corp. v. Liberty Mut. Ins. Co., 607 N.E.2d 1204, 1221 (Ill. 1992) (emphasis

added).

There is no indication any liability against the Ideal/Parks has been established in

Foppe’s underlying lawsuit, Foppe v. Ideal Aviation Illinois LLC and Parks Aviation Holdings,

LLC, No. 23 LA 0778. In fact, the public docket sheet for that case indicates it is set to be tried

by a jury in June 2025. St. Clair County, Civil Court Records, https://www.co.st-clair.il.us/

Departments/Circuit-Clerk/Courts/Civil-Records/ (visited Oct. 4, 2024). Until there is some

liability established in that case for Ideal/Parks, the Aviation Policy limits and the duty to

indemnify are not ripe for decision, so this Court must dismiss those portions of this action

without prejudice for lack of jurisdiction.

V. Conclusion

For the foregoing reasons, the Court:

• GRANTS in part and DENIES in part Old Republic’s motion for summary judgment

(Doc. 44) and Foppe’s motion for summary judgment (Doc. 45);

• GRANTS summary judgment on part of Count I in favor of Foppe on Old Republic’s

claim that it has no duty to defend under the Aviation Policy because Ideal/Parks did not

provide timely notice;

• DISMISSES as moot Count II, Old Republic’s claim that the Airport Policy does not

apply because Ideal/Parks did not provide timely notice, in light of the disposition of

Count IV;

• DISMISSES without prejudice Count III, Old Republic’s request to declare the

applicable limits of liability in the Aviation Policy, and part of Count I, Old Republic’s

claim that it has no duty to indemnify under the Aviation Policy because Ideal/Parks did

not provide timely notice;

• GRANTS summary judgment on Count IV in favor of Old Republic on its claim that the

Airport Policy’s coverage is excluded; and

• DIRECTS the Clerk of Court to enter judgment accordingly, including the following

declarations:

o The Court DECLARES that the timing of the notice given by defendants Ideal

Aviation Illinois, LLC and Parks Aviation Holdings, LLC of the occurrence does

not negate plaintiff Old Republic Insurance Company’s duty under Aviation

Policy No. AVC00428903 (policy period of December 12, 2020, to December 12,

2021) to defend defendants Ideal Aviation Illinois, LLC and Parks Aviation

Holdings, LLC in the case of Foppe v. Ideal Aviation Illinois LLC and Parks

Aviation Holdings, LLC, No. 23 LA 0778, Circuit Court of the Twentieth Judicial

Circuit, St. Clair County, Illinois; and

o The Court DECLARES that, under Airport Policy No. AP1144203 (policy period

of December 12, 2020, to December 12, 2021) plaintiff Old Republic Insurance

Company owes no duty to defend or indemnify defendants Ideal Aviation Illinois,

LLC and Parks Aviation Holdings, LLC in the case of Foppe v. Ideal Aviation

Illinois LLC and Parks Aviation Holdings, LLC, No. 23 LA 0778, Circuit Court of

the Twentieth Judicial Circuit, St. Clair County, Illinois.

Defaulted defendant Ideal/Parks shall be bound by these decisions and declarations.

IT IS SO ORDERED.

DATED: October 11, 2024

s/ J. Phil Gilbert

J. PHIL GILBERT

DISTRICT JUDGE