“Excess Loss Policy.” Accepting all allegations of the complaint as true and drawing all
reasonable inferences in favor of Guilbord, his claims against ANI cannot be dismissed. Even if
we accept that the original agreement was intended to be a reinsurance treaty and, that, therefore,
Guilbord had no standing to sue, the complaint alleges that the agreement was modified. We
must accept this factual allegation as true, and the alleged modification could make the
agreement an insurance policy with Guilbord as an insured with standing to sue ANI, the insurer.
Accordingly, since this Court cannot determine, without further information, whether the
agreement has been modified, we cannot hold that the complaint is insufficient against ANI.

ANI also asserts that Count VI of Guilbord’s complaint should be dismissed because it
seeks damages in excess of those permitted under Section 155 of the Illinois Insurance Code.
Because the Illinois Supreme Court has not yet ruled on this issue, we will let the damages
allegation stand for now. However, we are cognizant of the fact that damages under section 155
of the Illinois Insurance Code may indeed be capped.

For the foregoing reasons, defendant ANI’s motion to dismiss plaintiff's complaint
pursuant to Federal Rule of Civil Procedure 12(B)(6) is hereby denied.

It is so ordered.

we

Wayne R. Andersen
United States District Judge

pace Moshe. Ay 2003


Miowt® Order Form Wage?)
United States District Court, Northern District of Illinois

Name of Assigned Jud; ? Sitting Judge If O
vor Magistrate Judge Wayne R. Andersen than Avalted sudo
CASE NUMBER 2C 1653 DATE 11/26/2002
CASE James Guibord vs. Berry Tire Company et al
TITLE

Lin the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:
DOCKET ENTRY:

qa) o Filed motion of [ use listing in “Motion” box above.] i
(2) o Brief in support of motion due
()) Oo Answer brief to motion due___. Reply to answer briefdue____-

(4) im} Ruling/Hearingon___ssetfor___—_at.

(5) im Status hearing[held/continued to] (set for/re-set for]on____—ssetfor__—_—_at t
(6) Oo Pretrial conference[held/continued to] (set for/re-set for]on___——ssetfor__——s at. i

(7) a Trial(set for/re-set for}on_ at

(8) Q {Bench/Jury trial) [Hearing] held/continued to__—_at

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

QFRCP4(m) OLocal Rule 41.1 COFRCP41(a)(1) () FRCP41(a)(2).

ao =f [Other docket entry] | Enter MEMORANDUM, OPINION AND ORDER: Defendant ANI’s
motion to dismiss plaintiff's complaint pursuant to FRCP 12(B)(6) is hereby [9-1] denied.

ai) [For further detail see order attached to the original minute order.]
No notices required, advised in open court.

No notices required,

Notices mailed by judge's staff.

Notified counsel by telephone.

uv | Docketing to mail notices.

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

EASTERN DIVISION
JAMES GUIBORD, )
)
Plaintiff, )
y No. 02 C 1653
v. )
) Wayne R. Andersen’ *
BERRY TIRE COMPANY, FIRST } District Judge *
BENEFIT ADMINISTRATIONS, INC., )
and AMERICAN NATIONAL )
INSURANCE CO., )
)
Defendants. )
MEM! ND’ OPT 8)

This case is before the Court on the motion to dismiss by the defendant American
National Insurance Company pursuant to Federal Rule of Civil Procedure 12(B)(6). For the
following reasons, the motion is denied.

This case grew out of an agreement between defendants Berry Tire Company (“Berry”)
and American National Insurance Company (“ANI”) which provided that ANI would reimburse
Berry for its employees’ medical expenses which exceeded $20,000.00. As an employee of
Berty, plaintiff James Guibord (“Guibord”) falls into this covered group of individuals.

The complaint alleges that Guilbord incurred approximately $275,000.00 in medical
expenses while employed at Berry, which should have been, but were not reimbursed. Guilbord
now seeks reimbursement for those damages from both Berry, his former employer, and ANI,
with whom Berry had the reimbursement agreement.

Tn ruling on a motion to dismiss, a court must accept all factual allegations in the

complaint as true and draw all reasonable inferences in favor of the plaintiff. Szumny v. Am,

ge



Gen. Fin., Inc,, 246 F.3d 1065, 1067 (7th Cir. 2001). The purpose of a motion to dismiss is not
to decide the merits of the challenged claims, but to test the sufficiency of the complaint.

Weiler v. Household Fin. Corp., 101 F.3d 519, 524 n. 1 (7th Cir. 1996). A court will grant the
motion only if it is impossible for the plaintiff to prevail under any set of facts that could be
proven consistent with the allegations. Forseth v. Village of Sussex, 199 F.3d 363, 368 (7th Cir.
2000).

In Illinois, a reinsurance treaty differs from an insurance policy as the treaty operates
solely between the insurer and the reinsurer, creatying no privity of contract between the
teinsurer and the insured individual. See People ex Rel. Baylor v. Highway Ins. Co. 57 Ill.2d
590, 594-595, 316 N.E.2d 633, 634-635 (1974). ANI filed a motion to dismiss it as a defendant
claiming Guilbord has no privity of contract since the reimbursement agreement between ANI
and Berry is a reinsurance treaty and not an insurance policy. ANI further asserts that, it has no
obligation to reimburse Guilbord because the agreement provided only that ANI would reimburse
Berry upon Berry’s showing that Berry had paid the medical expense.

Guilbord alleges in his complaint, however, that the reimbursement agreement between
ANI and Berry had been modified to provide that ANI directly pay the plan administrator for the
employee’s medical expenses. Under this modification, the agreement would appear to be an
insurance policy, as opposed to a reinsurance treaty. Therefore, if the modifications alleged in
the complaint are correct, and the agreement is an insurance policy, then Guilbord may be able to
succeed on a claim against ANI.

The defendant ANI’s motion to dismiss fails because it remains unclear whether the
reimbursement agreement is a reinsurance treaty or an insurance policy. Although the agreement

on page one identifies itself as a “treaty of excess loss reinsurance,” the title of the agreement is