Court Sides With Hockey Player in Insurance Coverage Dispute

Oct 27, 2017

A federal judge from the Northern District of Illinois has denied an insurance provider’s motion to dismiss the claim of a professional hockey player who lost sight in an eye after an incident on the ice.
The player’s claim that the provider negligently failed to secure the insurance that the Federal Hockey League had sought will continue.
The plaintiff, Kyler Moje, played professional hockey in the minor league for the Danville Dashers of the Federal Hockey League. During a game on Feb. 10, 2012, a player for the opposing team allegedly hit him in the face with a hockey stick. He suffered serious injuries and lost the sight in one of his eyes.
Moje sued and obtained an $800,000 default judgment against the League. See Moje v. Fed. Hockey League, LLC, 792 F.3d 756, 758-59 (7th Cir. 2015) (affirming denial of motion to vacate default judgment).
After obtaining the default judgment, Moje brought the instant action seeking declaratory relief regarding an insurance policy issued in June 2012 by the defendant National Casualty Co. (National Casualty). See Policy, SAC Ex. 1. The policy identifies the defendant, The David Agency, as the policy’s producer, National Casualty as the insurer, and the League and its commissioner, defendant Dan Kirnan as the insureds. Moje v. Federal Hockey League LLC, 207 F. Supp. 3d 833, 836 (N.D. Ill. 2016), ECF No. 55.
In count two, Moje sought a declaratory judgment against The David Agency, alleging that the League communicated to it the type of insurance it needed to insure against the type of loss he sustained, that it knew what type of policy the League wanted, and that the League “was under the impression that the policy at issue covered personal injury losses, such as that sustained by the plaintiff.” The court added that Moje “has since made clear his theory is that The David Agency negligently failed to procure the insurance the League wanted. See 207 F. Supp. 3d at 840. Whether the policy covers Moje’s claim has yet to be determined.”
The David Agency moved to dismiss for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6), which the court granted in part and denied in part. The agency asked the court to reconsider the denial of its request to dismiss count two.
The court focused in on the M.G. Skinner Decision M.G. Skinner & Associates Insurance Agency, Inc. v. Norman-Spencer Agency, Inc., 845 F.3d 313, 318-20 (7th Cir. 2017) as support not to dismiss count two:
“Players of professional sports often buy personal injury insurance for themselves; leagues buy commercial general liability coverage. Walter Champion, Fundamentals of Sports Law, Contracts § 16:6 (West 2016). This practice does not appear to be entirely uniform, however. Champion, supra, notes a 2005 case, for instance, in which the Houston Astros bought an insurance policy for a pitcher, albeit one insuring the salary it paid him if he became disabled. See id. (citing and discussing Houston McLane Co., Inc. v. Conn. Gen. Life Ins., Co., No. Civ.A. H-06-1508, 2006 U.S. Dist. LEXIS 77653, 2006 WL 3050812 (S.D. Tex. Oct. 24, 2006)). Moje played minor league hockey. As recently as 2009, the National Hockey League (“NHL”) purchased insurance policies covering its players, but that trend does not appear to be universal in the world of hockey. Compare Champion, § 16:6 (citing Jeff Klein, In Olympic Camps, It’s Skate at Your Own Risk, N.Y. Times, Aug. 6, 2009, at B14), with Elbing v. Blair, 2007 WI App 162, 303 Wis. 2d 743, 735 N.W.2d 192, 2007 WL 1322101, at *1 (Wis. Ct. App. 2007) (hockey player hurt in fight sued the other player and player’s insurer rather than opposing team, the league, or their insurers). Read against this background, the SAC’s allegations sweep broadly enough to claim that the League intended to procure a policy like that the NHL bought for its players naming Moje as an additional insured. See SAC ¶¶ 38-41. So, the SAC plausibly alleges that Moje was “a proposed insured” under § 2-2201 to whom the David Agency owed a duty of reasonable care. See Skaperdas v. Country Cas. Ins. Co., 28 N.E.3d 747, 757-58, 770, 2015 IL 117021, 390 Ill. Dec. 94 (Ill. 2015) (holding insurance broker owed duty to insured and proposed insured where insured asked insurance producer to add his fiancée as an additional insured).”
Kyler Moje v. Federal Hockey League LLC, National Casualty Company, The David Agency Insurance Inc., and Don Kirnan; N.D. Ill.; Case No. 15-CV-8929, 2017 U.S. Dist. LEXIS 146905; 9/12/17
Attorneys of Record: (for plaintiff and counter defendant) Dean James Caras, Dean J. Caras P.C., Chicago, IL. (for Federal Hockey League LLC, defendant, counter defendant) Terry Joseph Kirwan, Jr., PRO HAC VICE, Kirwan Law Firm, P.C., Syracuse, NY. (for National Casualty Company, defendant) Jonathan L. Schwartz, LEAD ATTORNEY, Colin Brian Willmott, Goldberg Segalla LLP, Chicago, IL; Meghan Ann Collins, Goldberg Segalla LLP, Chicago. (for The David Agency Insurance, Inc. defendant) Matthew J. Ligda, Richard M. Waris, LEAD ATTORNEYS, Brendan John Nelligan, Pretzel & Stouffer, Chtd., Chicago, IL. (for National Casualty Company, counter claimant: Jonathan L. Schwartz, LEAD ATTORNEY, Goldberg Segalla LLP, Chicago, IL.


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