UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CAMBRIDGE MUTUAL FIRE 

INSURANCE COMPANY,

Plaintiff, 

v.

TERRY L. GACA, JANET L. WAYMAN, 

individually and as trustee of THE JANET L. 

WAYMAN TRUST, and THOMAS J. 

FREDERICK

Defendants. 

)

)

)

)

)

)

)

)

)

)

)

)

)

20 C 2447

Judge Charles P. Kocoras

ORDER

Before the Court is Defendants Terry L. Gaca and Janet L. Wayman 

(collectively, the “Gaca Defendants”) Motion to Dismiss Plaintiff Cambridge Mutual 

Fire Insurance Company’s (“Cambridge”) Amended Complaint under Federal Rule of 

Civil Procedure 12(b)(6). For the following reasons, the Court will deny the motion. 

BACKGROUND

This matter arises from a civil lawsuit brought by Thomas J. Frederick in Illinois 

state court against the Gaca Defendants (the “Underlying Suit”). In the Underlying 

Suit, Frederick alleges that the Gaca Defendants have maintained a boarding house with 

six tenants and a parking facility for large trucks on their property. The Underlying 

Suit alleges claims of public nuisance, conspiracy to create a public nuisance, and 
2

violations of Naperville city zoning ordinances. Frederick seeks monetary damages and 

injunctive relief.

Defendant Cambridge issued an insurance policy to the Gaca Defendants (the 

“Policy”), which includes Homeowner’s Liability Insurance and Personal Umbrella 

Liability Insurance. The Policy provides coverage for “‘[b]odily injury’ or ‘property 

damage’ which an ‘insured’ becomes legally liable due to an ‘occurrence’” and 

“‘[p]ersonal injury’ for which an ‘insured’ becomes legally liable due to one or more 

offenses listed under the definition of ‘personal injury.’” Dkt. 1-1, pg. 8.

“‘Bodily injury’ means bodily harm, sickness or disease, including required care, 

loss of services and death that results.” Id. at 6. “‘Personal injury’ means injury arising 

out of . . . [t]he wrongful eviction from, wrongful entry into, or invasion of right of 

private occupancy of a room, dwelling or premises that a person occupies, committed 

by or on behalf of its owner, landlord or lessor . . .” Id. at 7. “‘Property damage’ means 

physical injury to, destruction of, or loss of use of tangible property.” Id. Finally, 

“‘[o]currence’ means an accident, including continuous or repeated exposure to 

substantially the same general harmful conditions, which results . . . in: ‘bodily injury’ 

or ‘property damage.’” Id.

Cambridge brings this suit seeking a declaratory judgment that it does not have 

a duty to defend the Gaca Defendants in the Underlying Suit. Cambridge alleges that 

the Underlying Suit does not involve “property damage,” “bodily injury,” or “personal 

injury” under the Policy. Additionally, Cambridge alleges that claims in the Underlying 
3

Suit do not involve an “occurrence” as defined by the Policy and that the Policy does 

not extend coverage for injunctive relief. The Gaca Defendants now move to dismiss 

the Complaint under Rule 12(b)(6).

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the 

sufficiency of the complaint, not the merits of the case.” McReynolds v. Merrill Lynch 

& Co., 694 F.3d 873, 878 (7th Cir. 2012). The allegations in the complaint must set 

forth a “short and plain statement of the claim showing that the pleader is entitled to 

relief.” Fed. R. Civ. P. 8(a)(2). A plaintiff need not provide detailed factual allegations, 

but it must provide enough factual support to raise its right to relief above a speculative 

level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 

A claim must be facially plausible, meaning that the pleadings must 

“allow . . . the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The claim must be 

described “in sufficient detail to give the defendant ‘fair notice of what the . . . claim is 

and the grounds upon which it rests.’” E.E.O.C. v. Concentra Health Servs., 

Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). 

“[T]hreadbare recitals of the elements of a cause of action, supported by mere 

conclusory statements,” are insufficient to withstand a 12(b)(6) motion to dismiss. 

Iqbal, 556 U.S. at 678. With this framework in mind, we address the Gaca Defendants’ 

arguments in turn.
4

The Gaca Defendants first argue that the Complaint is based on legal conclusions 

and does not state sufficient facts to make those conclusions plausible. We disagree.

Cambridge attaches to its Complaint the complaint in the Underlying Suit and 

the Policy. On a motion to dismiss under Rule 12(b)(6), we may consider exhibits 

attached to the complaint. Bogie v. Rosenberg, 705 F.3d 603, 609 (2013). Considering 

these documents with the Complaint, we believe Cambridge sufficiently alleges that it 

does not have a duty to defend. Cambridge asserts that the Policy does not cover the 

allegations in the underlying complaint because the public nuisance and ordinance 

violation claims are not “bodily injury,” “personal injury,” or “property damage,” and 

there was no “occurrence” as defined under the Policy. In other words, Cambridge 

alleges that the alleged nuisance and ordinance violations did not result in any bodily 

harm or disease, injury or loss of use of property, or wrongful eviction from or entry 

into a property by its owner.

While the Gaca Defendants seek greater specificity in Cambridge’s pleading, we 

note “the difficulty of pleading with greater specificity where plaintiff is essentially 

required to prove a negative, without the benefit of discovery.” ScaleMP, Inc. v. 

TidalScale, Inc., 2019 WL 7877939, at *5 n.3 (N.D. Cal. 2019) (quoting Regents of 

Univ. of California v. St. Jude Med., Inc., 2017 WL 2335542, at *2 n.1 (N.D. Cal. 

2017)). Under the same line of reasoning, “it is logically impossible to describe in detail 

that which does not exist.” Driessen v. Sony Music Entm’t, 2013 WL 4501063, at *2 

(D. Utah 2013). The Complaint explains the nature of the Policy issued by Cambridge, 
5

the allegations in the underlying complaint, and why the allegations do not fall under 

the Policy. In doing so, it is clear why Cambridge did not include more factual 

allegations than it did. The Complaint asserts that the allegations in the underlying 

complaint simply do not fall under the Policy coverage that was issued.

The Gaca Defendants next argue that Cambridge’s claim must be dismissed 

because Cambridge has a duty to defend the Gaca Defendants in the Underlying Suit. 

However, the Gaca Defendant’s argument seeks to adjudicate the merits of 

Cambridge’s claims. On a motion to dismiss, “the question before the Court is the 

sufficiency of the allegations when drawing inferences in favor of the non-moving party 

and not whether the non-moving party will in fact succeed in her cause of action.” 

Cincinnati Ins. Co. v. Berkshire Refrigerated Warehousing, LLC, 149 F. Supp. 3d 867, 

871–72 (N.D. Ill. 2015). “[W]here a party seeks to dismiss under Rule 12(b)(6) an 

insurer's complaint seeking a declaration that it has no duty to defend, the Court reads 

the complaint in favor of the non-moving party—the insurer—and then decides if on its 

face, it plausibly states a claim for relief.” Id. at 872. “It is therefore premature to 

consider at this stage to analyze whether to grant [Cambridge] declaratory judgment or 

to determine if [Cambridge] has a duty to defend [the Gaca Defendants] in the 

underlying action because those are questions of merit.” Id. 

Thus, we decline to adjudicate whether Cambridge definitively does or does not 

owe a duty to defend on this motion and reserve our ruling for a later stage. See id.; see 

also Westfield Ins. Co. v. Nat'l Decorating Serv., Inc., 67 F. Supp. 3d 898, 900–01 (N.D. 
6

Ill. 2014) (“It is premature for Moving Defendants to present arguments as to whether 

Westfield [Insurance Company] in fact has a duty to defend Moving Defendants or to 

seek declaratory relief in their favor.”). At this stage, Cambridge has sufficiently

alleged that it does not owe a duty to defend. 

Finally, the Gaca Defendants argue that Cambridge should be estopped from 

raising policy defenses to coverage because it waited too long to seek a declaratory 

judgment. This estoppel defense, however, is an affirmative defense that is improper 

on a Rule 12(b)(6) motion to dismiss. Brownmark Films, LLC v. Comedy Partners, 682 

F.3d 687, 690 (7th Cir. 2012) (“courts should usually refrain from granting Rule

12(b)(6) motions on affirmative defenses.”); See id. n.1 (cautioning that the proper 

avenue for dismissal based on an affirmative defense is Rule 12(c), not Rule 12(b)(6)). 

Accordingly, the Court declines to dismiss Cambridge’s claims based on estoppel at 

this time.

CONCLUSION

For the reasons mentioned above, the Court denies the Gaca Defendant’s motion 

to dismiss. Status remains set for today at 10:50. It is so ordered.

Dated: 05/11/2021

________________________________

Charles P. Kocoras

United States District Judge