Nautilus Insurance Company v. CSN Entertainment, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

NAUTILUS INSURANCE COMPANY, )

)

Plaintiff, )

)

vs. ) Case No. 3:24-cv-02109-DWD

)

CSN ENTERTAINMENT, LLC, )

)

Defendant. )

MEMORANDUM & ORDER

DUGAN, District Judge:

On September 3, 2024, Plaintiff, Nautilus Insurance Company (“Nautilus”), filed

this action for declaratory judgment, pursuant to 28 U.S.C. § 2201, against Defendants

CSN Entertainment, LLC (“CSN”), and Shayla McDowell, individually and as special

administrator for the Estate of Dayman Warren.1 Plaintiff seeks a declaration that it does

not owe a duty to defend or indemnify CSN in an underlying lawsuit brought by Ms.

McDowell, individually and as special administrator for the Estate of Dayman Warren,

cause number 2024-LA-0476, in the Circuit Court of St. Clair County, Illinois, against CSN

and others. Now before the Court is Plaintiff’s Motion for Judgment on the Pleadings.

(Doc. 32). For the reasons detailed below, the Motion is GRANTED.

1 Ms. McDowell is a nominal defendant. Following entry of a stipulation to be bound, the claims against Ms.

McDowell were dismissed without prejudice. (Doc. 30).

BACKGROUND

A. The Underlying Action

This case arises from an underlying lawsuit filed on April 1, 2024, by Ms.

McDowell in St. Clair County, Illinois, styled as Shayla McDowell, individually and as special

administrator for the Estate of Dayman Warren, Deceased, v. CSN Entertainment, LLC, et al.,

cause number 2024-LA-0476 (the “Underlying Action”). The Underlying Action asserts

causes of action against CSN for Wrongful Death, Negligent Hiring & Selection (Count

V) and Survival Action, Negligent Hiring & Selection (Count VI). The Decedent in the

Underlying Action died on October 1, 2023, after being shot by security personnel at a

bar owned by CSN.

In the Underlying Action, Ms. McDowell alleges that CSN was negligent because

it failed to hire and select an experienced, qualified and/or competent security service.

(Doc. 1-1). Ms. McDowell alleges that Decedent was killed as a result of CSN’s negligence.

(Id. at ¶¶ 27-29).

B. The Nautilus Policy

Nautilus issued a commercial general liability insurance policy to CSN that was in

effect during the relevant period, namely from July 29, 2023, to July 29, 2024 (the

“Policy”). (Doc. 1-2). The Policy provides coverage for “bodily injury” that is caused by

an “occurrence” during the policy period. (Doc. 1-2, p. 14).

The Policy includes form endorsement L210 (12/19), “Exclusion – All Assault Or

Battery” (hereinafter, the “Assault and Battery Exclusion”). (Doc. 1-2, pp. 38-39). It states

that

This insurance does not apply to “bodily injury”, “property

damage”, “personal and advertising injury” or medical

payments arising out of any actual or alleged:

1. “Assault” or “battery” caused, directly or

indirectly, by you, any insured, any person, any

entity, or by any means whatsoever; or

2. Failure to suppress or prevent “assault” or

“battery” by you, any insured, any person, any

entity, or by any means whatsoever; or

3. Failure to provide an environment secure from

“assault” or “battery”; or

4. Failure to warn of the dangers of the environment

which could contribute to “assault” or “battery”; or

5. Use of any force to protect persons or property

whether or not the “bodily injury”, “property

damage”, “personal and advertising injury” was

intended from the standpoint of you, any insured,

or any person; or

6. Failure to render or secure medical treatment or

care following any “assault” or “battery”; or

7. Death, including any allegations of wrongful death,

arising out of items 1 through 6 listed above.

This Exclusion applies:

[* * *]

2. To all causes of action arising out of any “assault”

or “battery” including, but not limited to,

allegations of negligent hiring, placement, training,

or supervision, or to any act, error, or omission

relating to such an “assault” or “battery”;

[* * *]

4. To any obligation to share damages with or repay

someone who must pay damages because of the

injury.

(Doc. 1-2, pp. 38-39). The Assault and Battery Exclusion also states that Nautilus has “no

duty to defend or indemnify any insured in any action or proceeding alleging damages

arising out of any ‘assault’ or ‘battery’.” (Doc. 1-2, p. 38). Section D of the Assault and

Battery Exclusion defines those terms as follows:

1. “Assault” includes but is not limited to sexual assault,

physical, written or oral abuse, sexual abuse, human or sex

trafficking, intimidation, or any threatened harmful or

offensive contact between two or more person creating an

apprehension in a person of immediate or imminent

harmful or offensive contact; or an attempt to commit a

“battery”.

2. “Battery” includes but is not limited to physical abuse,

sexual abuse, sexual battery, sexual molestation, hazing,

physical altercation; or any harmful or offensive contact to

any person, whether direct or indirect, and regardless of

intent.

(Doc. 1-2, p. 39).

Two other exclusions are relevant here. First, the Policy’s Weapons Exclusion

precludes coverage for any “bodily injury” arising out of the use of any “weapon” or any

ammunition or firearm accessory for any “weapon.” (Doc. 1-2, p. 44). The exclusion

“applies even if the claims against any insured allege negligence or other wrongdoing in

the supervision, hiring, employment, training or monitoring of others by that insured.”

(Doc. 1-2, p. 44). Second, the Policy contains a Contractors and Subcontractors Exclusion

that precludes coverage for any “bodily injury […] arising out of work performed by any

contractor or subcontractor whether hired by or on behalf of any insured, or any acts or

omissions in connection with the general supervision of such work.” (Doc. 1-2, p. 43).

DISCUSSION

A. Jurisdiction

The Court has subject matter jurisdiction over this case pursuant to the federal

diversity statute, 28 U.S.C. § 1332. Nautilus is an Arizona corporation with its principal

place of business in Arizona. CSN is an Illinois limited liability company with its principal

place of business in Illinois. The amount in controversy is alleged to exceed $75,000,

exclusive of interest and costs as the effect of granting the relief would be to void coverage

for a loss likely to exceed $75,000 in value. See, e.g., RSUI Indem. Co. v. JMT Dev. Inc., 572

F. Supp. 3d 482, 486 (N.D. Ill. Nov. 10, 2021) (“In the insurance context, both the cost of

providing a defense and the potential cost of indemnifying [the insured] count toward

the amount in controversy.”) (internal quotations omitted).

B. Legal Standard

Federal Rule of Civil Procedure 12(c) allows a party to move for judgment on the

pleadings “[a]fter the pleadings are closed – but early enough not to delay trial.” Fed. R.

Civ. P. 12(c). When a Rule 12(c) motion attempts to resolve a case “on the basis of the

underlying substantive merits,” courts apply the summary judgment standard

considering only the contents of the pleadings. Alexander v. City of Chicago, 994 F.2d 333,

336 (7th Cir. 1993). Pleadings include the complaint, the answer, and exhibits attached

thereto. Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit to a

pleading is part thereof for all purposes.”).

As such, courts should grant judgment on the pleadings where there is no genuine

issue of material fact, and the moving party is entitled to a judgment as a matter of law.

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine dispute as to any material fact

exists if “the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Facts and

inferences drawn from the pleadings’ allegations are to be viewed in the light most

favorable to the non-moving party. Alexander, 994 F.2d at 336 (citing Republic Steel Corp. v

Pennsylvania Eng’g Corp., 785 F.2d 174, 177 n.2 (7th Cir. 1986).

C. Duty to Defend

Nautilus seeks a declaration that it does not owe a duty to defend CSN under the

Policy with respect to the Underlying Action. An insurer's duty to defend is determined

by comparing the allegations in the underlying complaint to the relevant provisions of

the insurance policy. Health Care Indus. Liab. Ins. Program v. Momence Meadows Nursing

Ctr., Inc., 566 F.3d 689, 694 (7th Cir. 2009). “An insurer is obligated to defend its insured

if the underlying complaint contains allegations that potentially fall within the scope of

coverage.” Id. (citing Lyerla v. AMCO Ins. Co., 536 F.3d 684, 688 (7th Cir. 2008) and Gen.

Agents Ins. Co. of Am. v. Midwest Sporting Goods Co., 215 Ill. 2d 146 (2005)). In other words,

an insurer may refuse to defend only if “it is clear from the face of the underlying

complaint that the allegations set forth in the complaint fail to state facts that bring the

case within, or potentially within, the coverage of the policy.” Id.

Nautilus argues that the undisputed facts as pled in the Underlying Action

demonstrate that coverage under the Policy is precluded by the Assault and Battery

Exclusion, the Weapons Exclusion, and the Contractors and Subcontractors Exclusion.

(Doc. 32, pp. 10-17). CSN has not offered any argument in rebuttal, as it has failed to make

any filing in opposition to the instant motion.2

CSN’s failure to offer any opposition to Nautilus’s arguments in the instant motion

permits an inference of acquiescence and “acquiescence operates as a waiver.” Cincinnati

Ins. Co. v. E. Atl. Ins. Co., 260 F.3d 742, 747 (7th Cir. 2001) (cited by Wojtas v. Capital

Guardian Trust Co., 477 F.3d 924, 926 (7th Cir. 2007)). While CSN’s failure to respond is

not in itself a forfeiture, the Court does not find that Nautilus’s interpretation concerning

the applicable coverage exclusions to be frivolous or nondispositive. See id. (finding that

defendant’s failure to oppose argument acquiesced to plaintiff’s interpretation of the

policy as excluding coverage, even where the court disagreed with that interpretation).

The portions of the Underlying Action relevant to the instant case allege that

Decedent was shot and killed by an employee of a security contractor that CSN

negligently hired and selected. Accepting these facts as true, as the Court must here, they

clearly fall within the exclusions of the Policy. The Policy’s Assault and Battery Exclusion

precludes coverage for any harmful contact to any person caused by any person. The

Weapons Exclusion bars coverage for any “bodily injury” arising out of the use of any

weapon. And finally, the Contractors and Subcontractors Exclusion states that any

“bodily injury” arising out of work performed by any contactor or subcontractor is not

covered by the Policy. All three of these exclusions clearly apply to the Underlying

2 The Court is perplexed as to why CSN’s counsel, Attorney Laninya A. Casons, failed to rebut Nautilus’s motion, or

comply with the orders of this Court to properly enter her appearance even after she was held in civil contempt for her

failure to do so. However, in the interest of concluding this matter, the Court purges the Order (Doc. 27) holding Ms.

Casons in civil contempt and any associated financial sanction.

Action. See, e.g. Kinsale Ins. Co. v. Last Coast Entm’t LLC, No. 19 C 5771, 2021 WL 1577797,

*7-8 (N.D. Ill. Apr. 22, 2021) (granting insurer’s motion for judgment on the pleadings

holding that shooting death of plaintiffs in underlying action was plainly excluded by the

policy’s assault and battery exclusion); Nautilus Ins. Co. v. Action ATM Inc., No. 3:16-CV-

0295-GCS, 2019 WL 6918502, *12-13 (S.D. Ill. Dec. 19, 2019) (finding that policy’s weapons

exclusion relieved insurer of duty to defend and indemnify in underlying lawsuit

involving a fatal shooting at a gas station because it was obvious a weapon was used and

the decedent was fatally struck by a bullet). In light of the plain language of the Policy,

along with CSN’s acquiescence to Nautilus’s interpretation of the Policy, the Court

concludes coverage for the Underlying Action is clearly precluded by these exclusions in

the Policy.

D. Duty to Indemnify

Nautilus also asks the Court to declare that it has no duty to indemnify CSN. It is

well established that the duty to indemnify is narrower than the duty to defend. Am.

Bankers Ins. Co. of Fla. v. Shockley, 3 F.4th 322, 331 (7th Cir. 2021) (citing Outboard Marine

Corp. v. Liberty Mut. Ins. Co., 154 Ill. 2d 90 (1992)). The duty to indemnify is an insurer's

duty “to reimburse the insured for losses it incurs directly or to pay sums that the insured

becomes legally obligated to pay others.” Id. (quoting Keystone Consol. Indus., Inc. v. Emps.

Ins. Co. of Wausau, 456 F.3d 758, 762 (7th Cir. 2006)). The duty to indemnify applies when

the insured's claim “actually falls within the scope of coverage.” Id. (quoting Madison

Mut. Ins. Co. v. Diamond State Ins. Co., 851 F.3d 749, 753 (7th Cir. 2017)).

In the Seventh Circuit, the “general rule” is that “a suit to determine an insurer's

obligations to indemnify its insured is premature until the insured has been determined

to be liable to somebody.” Bankers Tr. Co. v. Old Republic Ins. Co., 959 F.2d 677, 680 (7th

Cir. 1992). “More precisely, the ‘duty to indemnify [is] unripe until the insured has been

held liable.’” Citizens Ins. Co. of Am. v. Thermoflex Waukegan, LLC, 588 F. Supp. 3d 845, 856

(N.D. Ill. Mar. 1, 2022) (citing Grinnell Mut. Reinsurance Co. v. Reinke, 43 F.3d 1152, 1154

(7th Cir. 1995)). Furthermore, in addition to concerns about justiciability, a court

considering a declaratory judgment generally cannot “decide issues of ultimate fact that

could bind the parties to the underlying litigation.” Shockley, 3 F.4th at 331 (citing

Maryland Cas. Co. v. Peppers, 64 Ill. 2d 187 (1976)). Thus, determining whether an insurer

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

been found liable in the underlying litigation. Id.

However, “[i]n cases such as the instant case where no duty to defend exists and

the facts alleged do not even fall potentially within the insurance coverage, such facts

alleged could obviously never actually fall within the scope of coverage. Under no

scenario could a duty to indemnify arise.” Crum and Forster Managers Corp. v. Resolution

Trust Corp., 156 Ill. 2d 384, 398 (1993) (cited by Health Care Indus. Liab. Ins. Program v.

Momence Meadows Nursing Ctr., Inc., 566 F.3d 689, 693 (7th Cir. 2009) and Twin City Fire

Ins. Co. v. Law Office of John S. Xydakis, P.C., No. 18 C 6387, 2023 WL 2572468, *7 (N.D. Ill.

Mar. 20, 2023)). For the reasons explained above, Nautilus owes CSN no duty to defend

in the Underlying Action; therefore, no duty to indemnify exists.

CONCLUSION

The Court GRANTS Nautilus’s Motion for Judgment on the Pleadings. (Doc. 32).

The Court further declares that (1) the Policy’s Assault and Battery, Weapons, and/or

Contractors and Subcontractors Exclusions bar coverage under the Policy for all claims,

injuries, or causes of action asserted against CSN in the Underlying Action, and (2) that

Nautilus Insurance Company has and had no duty under the Policy to defend CSN

Entertainment, LLC in the Underlying Action, or to indemnify CSN Entertainment, LLC

for any judgment, award, or settlement entered in the Underlying Action. Further, in the

interest of concluding this matter, the Court purges Attorney Laninya A. Cason of the

Order (Doc. 27) holding her in civil contempt and any associated financial sanction.

SO ORDERED.

Dated: July 7, 2025

/s David W. Dugan

______________________________

DAVID W. DUGAN

United States District Judge