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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

HEATHER COZZI, ASHLEY COZZI, 

MICHAEL COZZI, AND MICHELLE 

COZZI,

Plaintiffs, No. 1:20-CV-04031

v.

UNITED OF OMAHA LIFE 

INSURANCE COMPANY,

Judge John Robert Blakey

Defendant.

MEMORANDUM OPINON AND ORDER

Plaintiffs Heather Cozzi, Ashley Cozzi, Michael Cozzi, and Michelle Cozzi sued

Defendant United of Omaha Life Insurance for breach of contract and attorney fees 

under 215 Ill. Comp. Stat. 5/155 in the Circuit Court of Cook County, Illinois, seeking 

compensation under a life insurance policy issued by Defendant to their mother. [1-

2]; [14-2]. Defendant subsequently removed this case to federal court, [1], filed its 

answer and affirmative defenses to the complaint, [11], and filed an amended notice 

of removal, [14]. Plaintiffs now move to strike Defendant’s affirmative defenses. [15]. 

For the reasons explained below, this Court grants in part, and denies in part,

Plaintiffs’ motion to strike. 

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I. Background

On May 5, 2017, Rebecca Cozzi signed an application for a life insurance policy 

(the “Application”) and submitted it to Defendant. [14-2] at 56–61. The Application 

stipulated that coverage would become effective upon satisfaction of three conditions: 

(1) full payment of the initial premium; (2) proper notice to Defendant of any changes 

in applicant’s health or habits between the issuance of the Application and delivery 

of the policy; and (3) delivery of the policy in accordance with its delivery 

requirements. Id. at 61. The Application required Ms. Cozzi to answer questions 

about her medical history and disclose any medical or therapeutic treatments 

received during the previous five years. Id. at 59–60. 

One question on the Application required Ms. Cozzi to state whether she had 

consulted with a doctor, been hospitalized, or treated by a healthcare provider “for 

any other health condition.” Id. at 60. Ms. Cozzi responded “No.” Id. Ms. Cozzi 

further certified she would notify Defendant about changes to her stated responses, 

should any occur prior to delivery of the policy, and that no policy would go into effect 

if Defendant deemed her ineligible for one. Id. at 60–61. 

Defendant alleges that on May 17 and 18, 2017, Ms. Cozzi visited a physician, 

Dr. Riskin of DMG Neurology, who informed her of abnormal results from a 

monoclonal protein test and Electromyography (EMG) and noted that she would 

require additional testing. [11] at 2. Defendant alleges that Ms. Cozzi failed to 

disclose this information, despite certifying that she would do so in the Application. 

Id. Defendant admits it knew Ms. Cozzi was undergoing physical and occupational 

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therapy before issuing a policy and that it charged her more for life insurance because 

she presented a greater risk. Id. ¶¶ 14, 16; [14-2] at 22. 

On June 2, 2017, Defendant issued a $349,000 life insurance policy to 

Ms. Cozzi, which she accepted on that date. [14-2] at 2–3. In September 2017, Ms. 

Cozzi received a diagnosis of amyotrophic lateral sclerosis (ALS). [14-2] at 4–5; [1-4] 

at 1. Ms. Cozzi passed away from ALS on April 18, 2019. [14-2] at 4–5; [1-4] at 1. 

Defendant, citing Ms. Cozzi’s failure to disclose her May 2017 medical appointments 

as grounds for rescission of the policy, refused to issue payment to Ms. Cozzi’s 

beneficiaries. [11] ¶ 22. 

Plaintiffs filed a claim against Defendant in the Circuit Court of Cook County, 

Illinois alleging breach of contract and seeking attorney fees. [1-2]. Defendant 

removed the case to this Court on July 9, 2020 pursuant to this Court’s diversity 

jurisdiction. [1]. On August 6, 2020, Defendant filed its answer including affirmative 

defenses. [11]. Plaintiffs now move to strike all affirmative defenses. [15]. 

II. Legal Standard

Rule 12(f) allows this Court to “strike from a pleading an insufficient defense 

or any redundant, immaterial, impertinent, or scandalous material.” Fed. R. Civ. P. 

12(f). Courts generally disfavor motions to strike because they “potentially serve only 

to delay” proceedings. NewNet Commc’n Techs., LLC v. VI E-Cell Tropical Telecom, 

Ltd., 85 F. Supp. 3d 988, 993 (N.D. Ill. 2015) (quoting Heller Fin., Inc. v. Midwhey 

Powder Co., 883 F.2d 1286, 1294 (7th Cir. 1989)). The burden for a motion to strike

is high; movants “must show that the allegations being challenged are so unrelated 

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to plaintiff’s claim as to be void of merit and unworthy of any consideration and that 

the allegations are unduly prejudicial.” VitalGo, Inc. v. Kreg Therapeutics, Inc., 370 

F. Supp. 3d 873, 880 (N.D. Ill. 2019) (quoting Cumis Ins. Soc’y, Inc. v. Peters, 983 F. 

Supp. 787, 798 (N.D. Ill. 1997)). 

If the targeted material has at least some “possible relation to the controversy” 

and does not “cause the objecting party prejudice,” the court should deny the motion 

to strike. Siegel v. HSBC Holdings, plc, 283 F. Supp. 3d 722, 730 (N.D. Ill. 2017) 

(quoting Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 664 (7th Cir. 1992)). 

The first inquiry asks whether the language at issue is relevant. Id. And in the 

second inquiry, prejudice results “when the matter complained of has the effect of 

confusing the issues, or where it is so lengthy and complex that it places an undue 

burden on the responding party.” Id. (quoting Sun Life Assurance Co. of Can. v. Great 

Lakes Bus. Credit LLC, 968 F. Supp. 2d 898, 903 (N.D. Ill. 2013)). 

But when a plaintiff moves to strike an affirmative defense, several other 

considerations apply. In addition to being properly pled as an affirmative defense,

the defense must meet Rule 8 and Rule 9’s pleading requirements and “must 

withstand a Rule 12(b)(6) challenge.” Raquet v. Allstate Corp., 348 F. Supp. 3d 775, 

781 (N.D. Ill. 2019). 

To survive a Rule 12(b)(6) challenge, a defense must include a “short and plain 

statement of the claim” showing the pleader merits relief, Fed. R. Civ. 

P. 8(a)(2), and giving the opposing party “fair notice” of the claim “and the grounds 

upon which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting 

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Conley v. Gibson, 355 U.S. 41, 47 (1957)). The defense must also contain “sufficient 

factual matter” to state a facially plausible claim to relief, allowing this Court to 

“draw the reasonable inference that the [opposing party] is liable for the misconduct 

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 

570). Thus, “threadbare recitals of the elements of a cause of action” and mere 

conclusory statements “do not suffice.” Iqbal, 556 U.S. at 678.

III. Analysis

A. Introduction to the Answer

This Court begins with the Introduction to Defendant’s Answer. In a single 

paragraph, Plaintiffs ask this Court to strike Introduction to the Answer in its 

entirety, arguing that it presents an immaterial, redundant, and inaccurate account 

of relevant facts and law. [15] at 3. Plaintiffs do not claim that the Introduction bears 

no relation to the case; accordingly, this Court asks whether Introduction prejudices 

Plaintiffs. See Siegel, 283 F. Supp. 3d at 730. Here, Plaintiffs neither identify any 

offending material, nor articulate how such material actually prejudices them. 

Absent further proffer, this Court finds no basis to strike the Introduction. Thus, this 

Court denies the motion to strike as to the Introduction. 

B. Affirmative Defenses

Plaintiffs challenge five distinct affirmative defenses from the Defendant’s 

answer: (1) failure to state a claim, [11] Affirmative Defenses ¶ 2; 

(2) misrepresentation, id. ¶¶ 3–8; (3) unclean hands, id. ¶ 9; (4) estoppel, id.; and (5) 

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that denial of coverage here was not vexatious or unreasonable under Illinois law, id.

¶¶ 10–13. This Court addresses each affirmative defense below. 

i. Failure to State a Claim

Defendant’s first affirmative defense asserts that the complaint “fails to state 

a claim or cause of action upon which relief can be granted.” Id. ¶ 2. Until such time 

as the Seventh Circuit confirms the viability of using an affirmative defense to argue 

a purported a failure to state a claim, this Court finds that Defendant’s proper tool 

remains a motion to dismiss. See Raquet, 348 F. Supp. 3d at 785–86 (citing Ill. 

Wholesale Cash Register, Inc. v. PCG Trading, LLC, No. 08 C 363, 2009 WL 1515290, 

at *2 (N.D. Ill. May 27, 2009)) (noting that a Rule 12(b)(6) motion is “the proper 

vehicle to establish a failure to state a claim defense”). Accordingly, this Court strikes 

Paragraph Two of Defendant’s affirmative defenses with prejudice (but allows 

Defendant to present this theory via the proper rule at a later time).

ii. Misrepresentation

In Paragraphs Three through Eight, Defendant appears to invoke an 

affirmative defense of misrepresentation, alleging Ms. Cozzi made a false statement 

in her Application, thus justifying Defendant’s rescission of her policy. [11] 

Affirmative Defenses ¶¶ 3–8. 

Plaintiffs do not argue that this defense is irrelevant or prejudicial. [15] at 2–

3. Moreover, although Defendant did not clearly label this affirmative defense in its

answer, given Plaintiffs’ ability to properly identify the defense of misrepresentation, 

[15] at 2, Defendant has satisfied Rule 8.

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This Court then asks whether the defense complies with Rule 9, which requires 

a party “alleging fraud or mistake” to “state with particularity the circumstances 

constituting fraud or mistake.” Fed. R. Civ. P. 9(b). As a practical matter, this means 

Plaintiffs must plead the “who, what, when, where, and how” of the alleged fraud. 

Benson v. Fannie May Confections Brands, Inc., 944 F.3d 639, 646 (7th Cir. 2019). 

Under Illinois law, an insurer may rescind a policy if the insured, or someone 

acting on his behalf, makes a misrepresentation while negotiating the policy. 215 Ill. 

Comp. Stat. 5/154. The statement “must be false” and it “must have been made with 

an actual intent to deceive or must ‘materially affect the acceptance of the risk or 

hazard assumed by the insurer.’” Ill. State Bar Ass’n Mut. Ins. Co. v. Law Office of 

Tuzzolino and Terpinas, 27 N.E.3d 67, 71 (Ill. 2015) (quoting Golden Rule Ins. Co. v. 

Schwartz, 786 N.E.2d 1010, 1015 (Ill. 2003)). To the extent Defendant attempts to 

plead its misrepresentation defense under an “intent to deceive” theory (as opposed 

to the alternative material representation theory), the defense must satisfy Rule 

9(b)’s requirement of particularity. Fed. R. Civ. P. 9(b); see also Travelers Indem. 

Co. v. Bally Total Fitness Holding Corp., 448 F. Supp. 2d 976, 981 (N.D. Ill. 2006) 

(discussing applicability of Rule 9(b) to insurer Plaintiff’s claim for rescission due to 

insured Defendant’s alleged misrepresentation). 

Here, Defendant does not specify whether it intends to pursue its 

misrepresentation defense under an “intent to deceive” theory or a material 

representation theory. Regardless, should it pursue the former, Defendant has 

satisfied Rule 9(b)’s heightened pleading standard. Defendant alleges that Ms. Cozzi 

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did not disclose results of specific medical tests or her referral to a neurologist to 

Defendant prior to delivery of the insurance policy, despite instructions to do so in 

the Application; that Ms. Cozzi knew the Application contained false information; 

and that Ms. Cozzi knew she had not disclosed this information prior to delivery. [11] 

Affirmative Defenses ¶¶ 3, 6; see also id. at Introduction. These allegations, in 

combination with Defendant’s answer, sufficiently state the “who, what, when, 

where, and how” of the alleged intentional misrepresentation.

Lastly, this Court asks whether the defense survives a challenge under Rule 

12(b)(6). It does, under either theory of misrepresentation. Defendant alleges that 

Ms. Cozzi made specific material misrepresentations to Defendant prior to delivery 

of the policy, that it relied on these misrepresentations in issuing the policy, and that 

it would not have issued the policy but for the misrepresentations. [11] Affirmative 

Defenses ¶¶ 3–8. These allegations suffice for a defense of misrepresentation under 

a material misrepresentation theory. See, e.g., Phila. Indem. Ins. Co. v. Behavioral 

Health Alternatives, Inc., No. 17-CV-684, 2017 WL 6373472, at *4 (S.D. Ill. Dec. 13, 

2017) (finding that insurer Plaintiff sufficiently pled cause of action for rescission 

where it alleged that insured Defendant “made specific material misrepresentations 

in its application for insurance that [Plaintiff] relied on in issuing the Policy with the 

terms it did”). And Ms. Cozzi’s alleged intentional misrepresentation, discussed 

above, already meets the more demanding Rule 9(b) standard for pleading a defense 

of misrepresentation under an intent to deceive theory. 

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Accordingly, this Court denies the motion to strike as to Paragraphs Three 

through Eight of the affirmative defenses. 

iii. Unclean Hands and Estoppel

In a single sentence, and without pleading any other facts, Defendant states 

“Plaintiffs’ claims are barred by the doctrines of unclean hands and estoppel.” [11] 

Affirmative Defenses ¶ 9. But such threadbare affirmative defenses do not withstand 

a Rule 12(b)(6) challenge and, thus, do not survive a motion to strike. See, e.g., Sarkis’ 

Cafe, Inc. v. Sarks in the Park, LLC, 55 F. Supp. 3d 1034, 1041 (N.D. Ill. 2014) 

(striking affirmative defenses where defendant failed to provide “any factual support” 

for the defenses and all but one consisted of single sentences). 

Accordingly, this Court grants the motion to strike as to Paragraph Nine of 

Defendant’s affirmative defenses and strikes this paragraph without prejudice and 

with leave to replead. If Defendant repleads, it should take note that unclean hands 

and estoppel are equitable defenses which “must be pled with the specific elements 

required to establish such defenses.” United States ex rel. A&C Constr. & Installation 

Co. WLL v. Zurich Am. Ins. Co., No. 17 C 4307, 2019 WL 195025, at *2 (N.D. Ill. Jan.

15, 2019) (emphasis added) (citing Reis Robotics USA v. Concept Indus., Inc., 462 F. 

Supp. 2d 897, 907 (N.D. Ill. 2006)); see U.S. Equal Emp’t Opportunity Comm’n v. 

Dolgencorp, LLC, No. 13-cv-04307, 2015 WL 2148394, at *5 (N.D. Ill. May 5, 2015) 

(citing Reis, 462 F. Supp. 2d at 907). Thus, any amended equitable affirmative 

defense must contain sufficient factual material to establish each element of the

defense.

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iv. Vexatious & Unreasonable Behavior

In their complaint, Plaintiffs allege that Defendant’s “refusal to pay the 

Policy’s death benefit” to Plaintiffs “is vexatious and unreasonable” and in violation 

of “Section 155 of the Illinois Insurance Code (215 ILCS 5/155).” [14-2] ¶ 26. As an 

affirmative defense, Defendant asserts it did not act vexatiously and unreasonably 

under 215 Ill. Comp. Stat. 5/155 and other, unspecified Illinois law. [11] Affirmative 

Defenses ¶¶ 10–13; see also [18] at 5–6. But an affirmative defense that “merely 

denies the allegations in the complaint” is “inappropriately pleaded.” Vita Food 

Prods., Inc. v. Navigators Ins. Co., No. 16 C 08210, 2017 WL 2404981, at *11 (N.D. 

Ill. June 2, 2017); see also Holzer v. Prudential Equity Group LLC, 520 F. Supp. 2d

922, 929 (N.D. Ill. 2007) (“It is improper to assert something as an affirmative defense 

that is nothing more than a denial of an allegation contained in the complaint.”). 

Moreover, in its answer Defendant denies it engaged in vexatious and unreasonable 

behavior, rendering this affirmative defense wholly redundant. [11] ¶ 26. For these 

reasons, this Court grants the motion to strike as to Paragraphs Ten through 

Thirteen of Defendant’s affirmative defenses and strikes these paragraphs with 

prejudice. 

IV. Conclusion

This Court grants in part and denies in part Plaintiffs’ motion to strike [15]. 

This Court grants the motion as to Paragraph Nine of the affirmative defenses 

(unclean hands and estoppel) and strikes this defense without prejudice. This Court 

also grants the motion to strike as to Paragraph Two (failure to state a claim) and 

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Paragraphs Ten through Thirteen of the affirmative defenses (nonvexatious and 

reasonable behavior), striking these defenses with prejudice. This Court denies the 

motion to strike as to the Introduction to Defendant’s answer and Paragraphs Three 

through Eight of the affirmative defenses (misrepresentation). This Court gives 

Defendant leave to amend his unclean hands and estoppel affirmative defenses, 

provided it can do so consistent with its Rule 11 obligations. Any amended 

affirmative defense must be filed within 21 days of this order and must clearly state 

the legal basis for the defense and allege facts sufficient to substantiate the defense. 

All other dates and deadlines stand. 

Dated: March 26, 2021

Entered:

John Robert Blakey

United States District Judge

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