remediation work was taking place. Environmental knew or should have known that JC
Restoration was not following proper procedures to remove and remediate the toxic mold, and
Environmental did not tell JC Restoration to change their negligent procedures.

Henderson’s claims against Environmental include: negligence (Count V) in connection
with Environmental’s failure to tell Henderson that the mold in the home could be toxic, failing
to tell Henderson that contact with the mold could be hazardous, and failing to tell Henderson
that JC Restoration’s work did not isolate and contain the mold contamination; intentional
infliction of emotional distress (Count VII) by allowing Henderson and her family to reside in
the home knowing the toxicity of the mold in the home; and negligent infliction of emotional
distress (Count IX) for not warning Henderson of the dangers of mold contamination and
remediation.

In reviewing a motion to dismiss, the court reviews all facts alleged in the
complaint and any reasonable inferences drawn therefrom in the light most favorable to the
plaintiff. See Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000)
(Marshall-Mosby). A plaintiff is not required to plead the facts or the elements of a claim, with
the exceptions found in Federal Rule of Civil Procedure 9. See Swierkiewicz v. Sorema, 534 U.S.
506, 511 (2002) (Swierkiewicz); Walker v. Thompson, 288 F.3d 1005, 1007 (7th Cir. 2002). A
filing under Federal Rule of Civil Procedure need not contain all the facts that will be necessary
to prevail. It should be “short and plain”, and it suffices if it notifies the defendant of the
principal events. See Hoskins v. Poelstra, 320 F.3d 761, 764 (7th Cir. 2003). Dismissal is
warranted only if “it appears beyond a doubt that the plaintiff can prove no set of facts in support

of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957).



would entitle her to relief. See Sanville v. McCaughtry, 266 F.3d 724, 732 (7th Cir. 2001).
Henderson’s allegations, if proven, could support an intentional infliction of emotional distress
claim. Accordingly, at this stage of the litigation, Count VIII cannot be dismissed.

Lastly, Environmental contends that Henderson failed to state a cause of action for
negligent infliction of emotional distress.

To state a claim based on this cause of action, a plaintiff must allege that the infliction of
emotional distress arose out of the negligent conduct of a defendant. See Brackett v. Galesburg
Clinic Ass'n, 292 Ill. App. 3d 867, 872 (1997).

As discussed above, at this stage of the litigation, Henderson has sufficiently pled
negligent conduct on the part of Environmental. Henderson also alleges that this negligent
conduct caused her and her children emotional distress. Accordingly, Henderson has sufficiently

pled a negligent infliction of emotional distress cause of action.

For the reasons stated above, Environmental’s Motion to miss is denied.
aN /
Dated: / of 200 ass.

JOHN W. DARRAH
United States District Judge



Amica seeks a declaration that the insurance policies do not provide coverage for certain
claims by Henderson and a determination by this Court of which damages claimed by Henderson
are covered under the insurance policies and the amount of loss recoverable by Henderson under
the policies,

Subsequently, Henderson filed a counterclaim/third-party complaint. A reading of
Henderson’s Amended Counterclaim/Third-Party Complaint supports the following summary of the
alleged conduct of the parties as to her and her sons’ claims.

On three occasions - September 1998, June 1999, and August 2001 - Amica assumed
responsibility for repairing damage to Henderson’s home. Amica selected and hired JC
Restoration and Environmental to inspect, repair, and remediate the damage and contamination.
On each occasion, the contractors hired by Amica performed the repair work negligently. Asa
result, water was able to seep into Henderson’s home, causing toxic mold to grow and spread
throughout the home.

Specifically as to Environmental, Henderson alleges that Steven Parkhurst (“Parkhurst”)
of Environmental inspected her home in August 2001. At that time, he found mold and water
intrusion in several areas of the home. Parkhurst returned in September 2001 to collect air and
surface samples for a microbial study. Although Parkhurst knew, or should have known, that the
mold in the home was toxic, Parkhurst failed to warn Henderson of the potential dangers of the
mold contamination.

In October 2001, JC Restoration began the remediation and repair. Prior to this time,
Environmental took no steps to isolate or contain the mold. As a result, the mold spread

throughout the home. Environmental visited the Henderson home on several occasions while the



The “suit should not be dismissed if it is possible to hypothesize facts, consistent with the
complaint, that would make out a claim.” Graehling v. Village of Lombard, Iil., 58 F.3d 295, 297
(7th Cir. 1995). The simplified notice pleading relies upon liberal discovery and summary
judgment motions to define disputed issues and facts and to dispose of unmeritorious claims.
See Swierkiewicz, 534 U.S. at 513.

As to Henderson’s negligence claim, Environmental contends that Henderson failed to
adequately plead that Environmental owed a duty to the Hendersons.

A negligence claim includes a duty owed by the defendant to the plaintiff, a breach of that
duty, and an injury proximately caused by the breach. See Ward v. K mart Corp, 136 Il. 2d 132,
140 (1990). The existence of duty has been defined as “whether defendant and plaintiffs stood in
such a relationship to each other that the law imposed upon defendant an obligation of reasonable
conduct for the benefit of the plaintiffs.” Happel v. Wal-Mart Stores, Inc., 199 Ill. 2d 179, 186
(2002) (Happel). Every person owes all others a duty to exercise ordinary care and to guard
against injury which naturally flows as a reasonably probable and foreseeable consequence of
that person’s action. This duty does not depend upon contract, privity of interest or the proximity
of relationship. See Cozza v. Culinary Foods, Inc., 311 Il. App. 3d 615, 622 (2000). Factors to
be considered in determining whether a duty exists include: (1) the reasonable foreseeability that
the defendant’s conduct might injure another, (2) the likelihood of an injury occurring, (3) the
magnitude of the burden guarding against such injury, and (4) the consequences of placing that
burden on the defendant. See Happel, 199 Ill. 2d at 187.

In the instant case, Henderson alleges that Environmental owed a duty to her and her

children based upon Environmental’s relationship with her and the children. Environmental was


|S Mina Orde Form (0657)

United States District Court, Northern District of Illinois

vr Magistrate Judge John W. Darrah “han AstgvedJodge

CASE NUMBER 02 C 5193 DATE 5/14/2003
CASE AMICA MUTUAL INSURANCE CO. vs. PATRICIA HENDERSON
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MoTION: of the motion being presented.)

DOCKET ENTRY:

(dy) a Filed motion of [ use listing in “Motion” box above.)

(2) Oo Brief in support of motion due

@) a Answer brief to motiondue___. Reply toanswerbriefdue___

(4) QO Ruling/Hearingon___setfor__at

(5) im} Status hearing[held/continued to] [set for/re-set for]on__—sset for saat

(6) a Pretrial conference[held/continued to] [set for/re-set for]on__—ssetfor__——saat__.

(@) a Trial[set for/re-set for] on__at

(8) o [Bench/Jury trial] [Hearing] held/continued to___at

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) CLocal Rule 41.1 OFRCP41(a\1) OFRCP4i(a)(2).

(10) WW [Otherdocketentry] Status hearing held and continued to 8/6/03 at 9:00 a.m. Third party defendant
Environmental Diagnostics, Inc.’s motion to reconsider is denied. Enter Memorandum Opinion And

Order. Environmental’s motion to dismiss is denied. Defendants answer to be filed by 6/11/03.

(il) [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required. vents ofsoes
Notices maited by judge's staff. l 5 1 903
Notified counsel by telephone. WAY
VY | Docketing to mail notices.
Mail AO 450 form. ED-7 coal “
Copy to judge/magistrate judge. FILED FOR DOCKETING
courtroom GB HAY 14 Phi bs 28 duende
" inti olen
Ee ed it
US. DIST ii SAG Eee mee may i



hired by Amica to inspect, repair, and remediate the damage and mold contamination. In light of
Environmental’s expertise in the field, Environmental knew of the health hazards associated with
the mold contamination and failed to inform the Hendersons of this information and failed to
adequately insure that the mold contamination did not spread. At this stage of the litigation,
Henderson has sufficiently pled a duty. Furthermore, Henderson has sufficiently pled that
Environmental breached the alleged duty and that such breach proximately caused her injuries.
Accordingly, Count V is not dismissed.

Environmental contends that Henderson failed to state a claim for intentional infliction of
emotional distress.

Under Illinois law, the elements of this claim are: (1) the defendant’s conduct was
extreme and outrageous, (2) the defendant intended to inflict severe emotional distress or knew
that there was at least a high probability that his conduct would inflict severe emotional distress,
and (3) the defendant’s conduct did in fact cause severe emotional distress. Harriston v. Chicago
Tribune Co., 992 F.2df 697, 702 (7th Cir. 1993), quoting McGrath v. Fahey, 126 Ill.2d 78, 86
(1998).

Henderson alleges that Environmental’s conduct was extreme and outrageous in that
Environmental knew of the toxicity or, at the least, the potential toxicity of the mold yet it
allowed Henderson and her children to stay in the home; and Environmental failed to isolate and
contain the mold contamination. As a result of Environmental’s intentional conduct, Henderson
and her children experienced severe emotional distress.

Under the 12(b)(6) standard discussed above, dismissal of the complaint for failure to

state a claim is proper only if the plaintiff can prove no set of facts in support of the claim that



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS eret
EASTERN DIVISION po sete

AMICA MUTUAL INSURANCE COMPANY, wey 15 2003

Plaintiff,
v.

PATRICIA HENDERSON,
No. 02 C 5193
Defendant.
Judge John W. Darrah

PATRICIA HENDERSON, individually and as
Guardian of AN HENDERSON and ALEX
HENDERSON,

Sd

Defendant/Counterclaim-Plaintiff,
Third-Party Plaintiff,

v.

AMICA MUTUAL INSURANCE COMPANY;
SERVICEMASTER COMPANY; O’BRIEN
PLUMBING & SEWER; JC RESTORATION, INC.;
and ENVIRONMENTAL DIAGNOSTICS, INC.;

Counterclaim-Defendants and
Third-Party Defendants,

weer eee ew

MEMORANDUM OPINION AND ORDER
Plaintiff, Amica Mutual Insurance Company “(Amica”), filed a Complaint for
Declaratory Judgment against Defendant, Patricia Henderson (“Henderson”). Subsequently,
Henderson filed a Counterclaim against Amica and a Third-Party Complaint against
Servicemaster Company (“Servicemaster”); O’Brien Plumbing & Sewer (“O’Brien”); JC
Restoration, Inc. (“JC Restoration”); and Environmental Diagnostics, Inc. (“Environmental”).

Presently pending before the Court is Environmental’s Motion to Dismiss Certain Counts of the



Third-Party Complaint.

A reading of Amica’s Complaint for Declaratory Judgment supports the following summary
of the alleged conduct of the parties as to its claims.

Amica issued homeowners insurance to Henderson for her residence in Chicago, Illinois.
The Amica/Henderson policies provide coverage for dwelling, other structures, personal property,
loss of use, and personal liability. The policies do not provide coverage for the insured’s personal
injury, pain and suffering, medical care, lost income, or increased cost of succeeding insurance.

On September 9, 1998, Henderson sustained loss to her residence resulting from a fire which

occurred at an adjacent residence. Henderson reported the occurrence to Amica, and Amica began
adjustment of the losses.

On July 22, 2001, Henderson sustained losses to her residence resulting from a windstorm
that damaged the siding to her home. Henderson reported the occurrence to Amica, and Amica
began adjustment of the losses under this claim. In the course of the investigation of the second
claim, water and mold damage to Henderson’s property was discovered, some of which allegedly
resulted from the fire loss of September 9, 1998. After notification of the alleged mold damage,
Amica retained specialized service companies to perform investigations and microbial toxin testing
at the Henderson property. Amica also retained service companies to repair and remediate the
damage to the Henderson property. Amica has issued payment to Henderson and on Henderson’s
behalf under both claims.

On April 26, 2002, Amica received correspondence from Henderson’s legal counsel,
requesting that Amica pay for her residence to be razed and rebuilt. On July 9, 2002, Amica
teceived another correspondence from Henderson’s legal counsel, requesting settlement

specified claims set forth in the correspondence.

2