plaintiff's favor must be drawn from specific facts identified in the record that support the plaintiff's

position. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922-23 (7th Cir. 1994). Under this standard,

“{c]onclusory allegations alone cannot defeat a motion for summary judgment.” Thomas v, Christ
Hospital and Medical Center, 328 F.3d, 890, 892-93 (7th Cir, 2003) (citing Lujan v. Nat’! Wildlife
Federation, 497 U.S. 871, 888-89 (1990).
B. Askinazi is covered under the ERI policy with GL

The insurance policy at issue states: “ ‘Insured’ means the Firm and each person who was, is
or becomes:. . . (3) ‘counsel’ or ‘of counsel’ to the Firm.” Pl.’s Stmt. of Mat. Facts, at 2. Therefore, if
Askinazi is considered either part of the firm, or “of counsel,” ERI must indemnify TIG for the legal
expenses paid to defend, and settle the DC action on behalf of Askinazi. While the term “of counsel”
is not defined in the insurance policy, if there is an ambiguity in the language of the policy, that

ambiguity must be construed in favor of the insured, and against the insurer. See Fleishman, M.D, v.

Gen. Am. Life Ins. Co., 839 A.2d 1085, 1088 (Pa. Super. 2003); see also Standard Venetian Blind Co.

y.Am. Empire Ins, Co., 469 A.2d 563, 566 (Pa. 1983).

ERI’s counsel stated that the insurance policy only intended to cover attorneys “of counsel”
who are “affiliated with a law firm, though not a member, partner, or associate.” PI.’s Stmt. of Mat.
Facts, Ex. F, p. 2. It is ERI’s position that Askinazi was not employed by GL, but instead was
affiliated with his own law firm to assist in the litigation of the class action suits. Therefore, ERI
claims, Askinazi and GL are two separate entities, each responsible for their own liability insurance.
However, the term “of counsel” lends itself to more than one definition. “Of counsel” is also defined
as “a lawyer employed by a party in a case. . . one who, although not the principal attorney of record—
is employed to assist in the preparation or management of the case.” Blacks Law Dictionary (Seventh

Ed. 1999). Therefore, an ambiguity exists as to the definition of “of counsel.” Such ambiguity must


Summary Judgment is now fully briefed and before the court.

Il. DISCUSSION
A. Standard of Review
Summary judgment is permissible when “there is no genuine issue as to any material fact and .
. . the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The nonmoving
party cannot rest on the pleadings alone, but must identify specific facts, see Cornfield v. Consolidated
High Sch. Dist. No. 230, 991 F.2d 1316, 1320 (7th Cir. 1993), that raise more than a mere scintilla of

evidence to show a genuine triable issue of material fact. See Murphy v. ITT Technical Services, Inc.,

176 F.3d 934, 936 (7th Cir. 1999).
In deciding a motion for summary judgment, the court can only consider evidence that would

be admissible at trial under the Federal Rules of Evidence. See Bombard v. Fort Wayne Newspapers.

Inc., 92 F.3d 560, 562 (7th Cir. 1996). The court views the record and all reasonable inferences drawn
therefrom in the light most favorable to the non-moving party. See Fed. R. Civ. P. 56(c); see also
Perdomo y. Browner, 67 F.3d 140, 144 (7th Cir. 1995). “In the light most favorable” simply means
that summary judgment is not appropriate if the court must make “a choice of inferences.” See United

States v. Diebold, Inc., 369 U.S. 654, 655 (1962); see also First Nat’] Bank of Ariz. v. Cities Service

Co., 391 U.S. 253, 280 (1968); Wolf v. Buss (America) Inc., 77 F.3d 914, 922 (7th Cir. 1996). The
choice between reasonable inferences from facts is a jury function. See Anderson v. Liberty Lobby.
Inc., 477 U.S. 242, 255 (1986).

When the defendant moves for summary judgment, the court must view the record and all

inferences in a light most favorable to the plaintiff. Ameritech Benefit Plan Comm. v. Communication

Workers of Am., 220 F.3d 814, 821 (7th Cir. 2000). However, the inferences construed in the


be construed in favor of the insured.

A plain reading of the Joint Venture and Fee agreement shows that Askinazi acted in an “of
counsel” capacity in his relationship with GL. Askinazi received only a portion of the fees paid to the
firm, he consulted, advised, and developed strategy for the class actions suits, and was not considered a
trial attorney for purposes of the litigation. Moreover, the pleadings in both the GL class action suit
and the DC action designate Askinazi as “of counsel” to its firm. PI.’s Stmt. of Mat. Facts, Ex. 2, at
18, Ex. 6. Therefore, it is clear that Askinazi acted in the capacity as “of counsel” to GL, and is
entitled to coverage under ERI’s insurance policy. Even if Askinazi was classified as “of counsel”
under ERI’s definition, he would still be covered. There is no doubt that Askinazi was “affiliated”
with GL during the class action litigation, by virtue of his extensive involvement in drafting pleadings,
opinions on strategy, and several meetings with and expert witness. As a result, there is no question of
material fact that as to Askinazi’s status with GL. TIG’s Motion for Summary Judgment is therefore
granted.

Ill. CONCLUSION

For the reasons stated above, the court grants the Plaintiff's Motion for Summary Judgment.

IT IS SO ORDERED.

ENTER:

eth hg

CHARLES RONALD NORGLE, SR. flow

United States District Court

DATED: sf > -22-0¥


‘Minute Order i jos)

s > United States District Court, Northern District of Illinois
Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge Charles R. Norgle than Assigned Judge
CASE NUMBER 02 C9135 DATE 12/21/2004
CASE TIG Specialty Ins. vs. Executive Risk Indemnity, Inc.
TITLE
{in the following box (a) indicate the party filing the motion, ¢.g., plaintitf, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented. }
Plaintiff's Motion for Summary Judgment [9-1]
DOCKET ENTRY:
qd) Qa Filed motion of [ use listing in “Motion” box above.]
(2) im} Brief in support of motion due.
(3) Oo Answer brief to motion due. - Reply to answer brief due. _
(4) i) Ruling/Hearing on ___set for at
(5) Qo Status hearing[held/continued to] [set for/re-set for] on set for at
(6) Q Pretrial conference[held/continued to] [set for/re-set for] on set for at
mM a Trial[set for/re-set for] on at
(8) oO (Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
OOFRCP4(in) OLocalRule 41.1 CFRCP4I(a(1) CO FRCP41(a\(2).
cio) sil [Other docket entry] Plaintiff's Motion for Summary Judgment [9-1] is granted. Defendant’s
Motion for Summary Judgment [18-1] is denied. See attached order. It is so ordered.
di) @ [For further detail see order attached to the origina! minute order.)
No notices required, advised in open court. “Document
No notices required. sumer af apes Nur
Notices mailed by judge’s staff.
Notified counsel by tetephone. ag docketes
X | Docketing to mait notices. i
Copy to judge/magistrate judge.
. date miled notice
courtroom ton whey
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Date/time received in
central Clerk's Office nailing deputy initials



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

TIG Specialty Insurance, )
Individually and as Subrogee of )
William F. Askinazi, }
)
Plaintiff, )
)
vy. ) Case No. 02 C 9135
)
) HONORABLE CHARLES R. NORGLE
Executive Risk Indemnity, Inc., )
)
Defendant. ) Of Of aT
OF "bo
OPINION AND ORDER Ces 2004
~ 4%

CHARLES R. NORGLE, Sr., District Judge
Before the court is Plaintiff's Motion for Summary Judgment. For the following reasons,
Plaintiff's Motion for Summary Judgment is granted.
I, BACKGROUND'
A. Facts
This cause of action arises out of an association between William Askinazi
(“Askinazi”), an attorney, and the Pennsylvania law firm of Greitzer & Locks (“GL”). In 1999,
Askinazi and GL entered into a Joint Venture and Fee Agreement for the purposes of “preparing and
prosecuting one or more state or national class actions arising from defective design of automobile seat
latch and seat restraint mechanisms.” P1.’s Stmt. of Mat. Facts, Ex. A. In addition, the agreement

provided that Askinazi would assist the Project as strategist, and GL would act as the trial lawyers and

' The court takes the undisputed facts from the parties’ Local Rule 56.1 Statements, and
notes disputed facts within the text.

4
oe



collect all the attorneys fees. GL would then pay Askinazi a portion of these fees for his efforts. In
June, 1999, GL filed a lawsuit in the Court of Common Pleas for Philadelphia County on behalf of
Brian Lipscomb (“Lipscomb”) and against Ford Motor Company, General Motors, Saturn, and
DaimlerChrysler (“DC”). In October 1999, DC obtained a dismissal in the case, and in November,
filed a federal lawsuit against Askinazi, GL, and Lipscomb. The suit was based on Pennsylvania’ s
Dragonetti Act, a codified version of the common law tort of malicious prosecution, which focuses on
negligence or the lack of probable cause in the commencement of lawsuits. See 42 PA. CONS, STAT. §
8351 (2004). DC based its suit on the fact that GL and Askinazi lacked probable cause to bring their
claim because Lipscomb did not own a DC car. TIG, Askinazi’s professional liability insurer,
defended him in the DC lawsuit and paid $135,380.45 in legal expenses. TIG eventually settled the
claim on behalf of Askinazi for $25,000.00. PI.’s Stmt. of Mat. Facts, Ex. C, 45. At the time of the
DC lawsuit, Defendant Executive Risk Indemnity, Inc. (“ERI”) insured GL for professional liability.
In December, 1999, when Askinazi inquired as to whether he was insured under the ERI policy, GL
sent a letter to ERI asking about Askinazi’s status. In July, 2000, ERI denied coverage for the claim,
stating that Askinazi was not covered under the policy.
B. Procedural History

On November 20, 2002, TIG filed this action in the Circuit Court of Cook County, Chancery
Division. On December 17, 2003, the case was removed to the United States District Court for the
Northern District of Illinois, with jurisdiction based on diversity. TIG, as subrogee for Askinazi,
requests a Declaratory Judgment and damages based on ERI’s failure to indemnify Askinazi for the
DC action under GL’s insurance policy. On April 2, 2004, TIG filed a Motion for Summary

Judgment. On May 24, 2002, ERI filed a cross Motion for Summary Judgment. Plaintiffs Motion for