IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

MCDONALD’S CORPORATION, 

MCDONALD’S USA, LLC, LEXI 

MANAGEMENT, LLC, and DAK4, LLC, 

Plaintiffs, 

v. 

AUSTIN MUTUAL INSURANCE COMPANY, 

Defendant. 

No. ______________________ 

Judge: 

Magistrate Judge: 

JURY TRIAL DEMANDED

COMPLAINT FOR DECLARATORY JUDGMENT, BREACH OF CONTRACT AND 

OTHER RELIEF 

Plaintiffs McDonald’s Corporation, McDonald’s USA, LLC, Lexi Management, LLC 

and DAK4, LLC, by and through their legal counsel, for their Complaint for Declaratory 

Judgment, Breach of Contract and Other Relief against Austin Mutual Insurance Company 

(“Austin Mutual”), state as follows: 

NATURE OF ACTION 

1. This insurance coverage dispute arises from a lawsuit filed against Plaintiffs 

captioned Taynarvis Massey, et al. v. McDonald’s Corporation, et al., Case No. 2020 CH 04247, 

pending in the Circuit Court of Cook County, Illinois, County Department, Chancery Division 

(“the Massey Lawsuit”). Plaintiffs have a dispute with Austin Mutual concerning the extent of its 

coverage obligations to Plaintiffs in connection with the Massey Lawsuit. Austin Mutual has 

breached its duties to defend Plaintiffs in connection with the Massey Lawsuit under policies of 

insurance issued to Lexi Management, LLC and DAK4, LLC. Through this action, Plaintiffs 

now seek to secure insurance coverage from Austin Mutual in accordance with its coverage 

obligations to Plaintiffs. 

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PARTIES 

2. Plaintiff McDonald’s Corporation is a Delaware corporation with its principal 

place of business in Chicago, Illinois. McDonald’s Corporation has established a quick service 

restaurant business operating under the brand McDonald’s with over 38,000 restaurants in 119 

countries, including the United States. 

3. Plaintiff McDonald’s USA, LLC is a Delaware limited liability company with its 

principal place of business in Chicago, Illinois. McDonald’s USA’s sole member is McDonald’s 

Corporation. McDonald’s USA, LLC franchises McDonald’s restaurants in the United States. 

McDonald’s Corporation and McDonald’s USA, LLC are collectively referred to herein as 

“McDonald’s.” 

4. Plaintiff Lexi Management, LLC (“Lexi”) is an Illinois limited liability company 

with its principal place of business in Chicago, Illinois. Lexi’s members are Tonnette Williams 

and her minor daughter, both citizens of Illinois. Until approximately June 15, 2020, Lexi owned 

and operated a McDonald’s franchise located at 207 E. 35th Street in Chicago, Illinois. 

5. Plaintiff DAK4, LLC (“DAK4”) is an Illinois limited liability company with its 

principal place of business in Itasca, Illinois. DAK4’s members are John Dakajos, a citizen of 

Illinois, and the John Dakajos Children’s Trust. The trustees and beneficiaries of the John 

Dakajos Children’s Trust are citizens of Illinois. DAK4 owns and operates a McDonald’s 

franchise located at 10320 S. Kedzie Avenue in Chicago, Illinois. 

6. Defendant Austin Mutual Insurance Company is a Minnesota corporation with its 

principal place of business in Maple Grove, Minnesota. 

7. Upon information and belief, Austin Mutual is a wholly-owned subsidiary of 

Main Street America Group, Inc., which in turn is a wholly-owned subsidiary of AmFam, Inc. 

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Upon information and belief, AmFam, Inc. is a wholly-owned subsidiary of American Family 

Mutual Insurance Company, S.I. (“American Family”). 

JURISDICTION AND VENUE 

8. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a)(1) 

because there is complete diversity of citizenship between the parties and the amount in 

controversy exceeds $75,000 exclusive of interest and costs. This Court has personal jurisdiction 

over Austin Mutual because it transacts business in Illinois and because it directed its conduct 

that is at issue to Plaintiffs in Illinois. 

9. Venue is proper pursuant to 28 U.S.C. § 1391(b)(1) because Austin Mutual is a 

resident of this judicial district as defined by 28 U.S.C. § 1391(d), and pursuant to 28 U.S.C. 

§ 1391(b)(2) because a substantial part of the events and omissions giving rise to this claim 

occurred in this judicial district. 

THE BUSINESSOWNERS POLICIES 

10. Austin Mutual issued a “BUSINESSOWNERS” Policy to Lexi for the period 

March 1, 2020 to March 1, 2021 (the “Lexi Policy”). Lexi is an “insured” under the Lexi Policy. 

The Lexi Policy was cancelled effective on or about June 15, 2020. A true and correct copy of 

the Lexi Policy is attached hereto as Exhibit A and incorporated herein by reference. 

11. Austin Mutual issued a “BUSINESSOWNERS” Policy to DAK4 for the period 

March 1, 2020 to March 1, 2021 (the “DAK4 Policy”). DAK4 is an “insured” under the DAK4 

Policy. A true and correct copy of the DAK4 Policy is attached hereto as Exhibit B and 

incorporated herein by reference. The Lexi Policy and the DAK4 Policy are collectively referred 

to herein as the “Policies.” 

12. The Policies provide that the term “insured” as used in the Policies also includes: 

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McDonald’s Corporation, McDonald’s USA, LLC, any parent, subsidiary or 

affiliated company now existing or hereafter acquired or constituted and any 

company, partnership or joint venture created, owned or controlled by 

McDonald’s Corporation, McDonald’s USA, LLC, any parent, subsidiary or 

affiliated company. 

13. The Policies provide that: 

[Austin Mutual] will pay those sums that the insured becomes legally obligated to 

pay as damages because of “bodily injury” ... to which this insurance applies. 

[Austin Mutual] will have the right and duty to defend the insured against any 

“suit” seeking those damages. 

14. The Policies state that the insurance applies if “bodily injury” is (1) “caused by an 

‘occurrence’ that takes place in the ‘coverage territory’ during the policy period” and (2) “occurs 

during the policy period.” 

15. The Policies define “bodily injury” as “bodily injury, sickness, disease or mental 

anguish sustained by a person, including death resulting from any of these at any time.” 

16. The Policies define “occurrence” as “an accident, including continuous or 

repeated exposure to substantially the same general harmful conditions.” 

17. The Policies define “coverage territory” to include “the United States of America 

(including its territories and possessions), Puerto Rico and Canada.” 

AUSTIN MUTUAL’S FAILURE TO DEFEND PLAINTIFFS

18. The Massey Lawsuit is a “suit” seeking damages against “insureds” McDonald’s, 

Lexi and DAK4 because of “bodily injury” as those terms are defined in the Policies. 

19. The alleged “bodily injury” in the Massey Lawsuit was caused by one or more 

“occurrences” that took place in the “coverage territory” during the periods of the Policies as 

those terms are defined in the Policies. 

20. No exclusion in the Policies eliminates the possibility that, based on the facts 

alleged in the complaint in the Massey Lawsuit and additional facts known to Austin Mutual, 

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McDonald’s, Lexis and DAK4 could be liable in the Massey Lawsuit for damages covered by 

the Policies. 

21. On or about May 20, 2020, Lexi contacted its insurance broker by telephone and 

requested that the broker advise Austin Mutual of the existence of the Massey Lawsuit. On 

information and belief, the broker notified Austin Mutual of the existence of the Massey Lawsuit 

the same day. 

22. On or about May 22, 2020, attorneys representing DAK4 notified Austin Mutual 

of the existence of the Massey Lawsuit and sent a copy of the complaint in the Massey Lawsuit 

to Austin Mutual. A true and correct copy of the complaint in the Massey Lawsuit is attached 

hereto as Exhibit C. 

23. On or about June 12, 2020, McDonald’s sent a copy of the complaint in the 

Massey Lawsuit to Austin Mutual. 

24. McDonald’s, Lexi and DAK4 timely notified Austin Mutual of the Massey 

Lawsuit. 

25. Austin Mutual has owed, and continues to owe, a duty to defend McDonald’s and 

DAK4 under the DAK4 Policy with respect to the Massey Lawsuit. 

26. Austin Mutual has owed, and continues to owe, a duty to defend McDonald’s and 

Lexi under the Lexi Policy with respect to the Massey Lawsuit. 

27. On or about May 22, 2020, in a telephone call between counsel for DAK4 and a 

representative of Austin Mutual, Austin Mutual’s representative conveyed its position that it 

planned to deny coverage under the DAK4 Policy and would not defend DAK4 in connection 

with the Massey Lawsuit. 

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28. On or about July 9, 2020, in a telephone call between in-house counsel for 

McDonald’s and in-house counsel for American Family, American Family’s in-house counsel 

conveyed Austin Mutual’s position that it planned to deny coverage under the Policies and would 

not defend McDonald’s in connection with the Massey Lawsuit. 

29. As of the date of filing this complaint, Austin Mutual has not conveyed to Lexi 

whether it accepts or denies coverage for the Massey Lawsuit under the Lexi Policy. 

30. The reason Austin Mutual gave for refusing to defend McDonald’s under the Lexi 

Policy is the same reason it gave for refusing to defend McDonald’s and DAK4 under the DAK4 

Policy. 

31. As of the date of filing this complaint, McDonald’s has incurred in excess of $1.5 

million in attorneys’ fees, costs and expenses in defending itself in the Massey Lawsuit. 

32. As of the date of filing this complaint, DAK4 has incurred in excess of 

$62,164.00 in attorneys’ fees, costs and expenses in defending itself in the Massey Lawsuit. 

33. As of the date of filing this complaint, Lexi has incurred in excess of $53,998.00 

in attorneys’ fees, costs and expenses in defending itself in the Massey Lawsuit. 

34. As of the date of filing this complaint, Austin Mutual has failed to reimburse 

McDonald’s, Lexi or DAK4 for any of the attorneys’ fees, costs and expenses they have incurred 

in defending themselves in the Massey Lawsuit. 

COUNT I 

(Breach of Contract – Duty to Defend – DAK4 Policy) 

35. Plaintiffs incorporate and reallege the allegations in Paragraphs 1 through 34 as if 

the same were fully set out herein. 

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36. DAK4 has paid all premiums and McDonald’s and DAK4 have substantially 

performed any and all conditions under the DAK4 Policy that have not been waived by Austin 

Mutual. 

37. Austin Mutual has breached its contractual duty to defend McDonald’s and 

DAK4 under the DAK4 Policy by failing to accept coverage or defend McDonald’s and DAK4 

in connection with the Massey Lawsuit. 

38. As a direct and proximate result of Austin Mutual’s breach of contract, 

McDonald’s and DAK4 have suffered damages because, among other things, they have incurred 

and will incur attorneys’ fees, costs and expenses to defend the Massey Lawsuit. 

39. As a direct and proximate result of Austin Mutual’s breach of contract, 

McDonald’s and DAK4 have suffered damages because they have incurred and will incur 

attorneys’ fees, costs and expenses in the instant coverage action. 

 WHEREFORE, McDonald’s and DAK4 respectfully request that this Court enter a 

judgment: 

a. Awarding McDonald’s and DAK4 damages in an amount sufficient to 

compensate them for all damages resulting from the breach of contract by Austin Mutual, plus 

prejudgment interest; 

b. Awarding McDonald’s and DAK4 taxable costs under Section 155 of the Illinois 

Insurance Code, including but not limited to attorneys’ fees and costs incurred in the instant 

coverage action; and 

 c. Awarding all other just and proper relief. 

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COUNT II 

(Declaratory Judgment – Duty to Defend – DAK4 Policy)

40. Plaintiffs incorporate and reallege the allegations in Paragraphs 1 through 39 as if 

the same were fully set out herein. 

41. Pleading in the alternative, pursuant to 28 U.S.C. § 2201, an actual and justiciable 

controversy has arisen concerning Austin Mutual’s duty to defend McDonald’s and DAK4 under 

the DAK4 Policy with respect to the Massey Lawsuit. Pursuant to 28 U.S.C. §§ 2201 and 2202, 

this Court is granted the power to determine and adjudicate the rights and obligations of the 

parties hereto. 

42. Pleading in the alternative, the issuance of a declaratory judgment with respect to 

the parties’ dispute regarding whether Austin Mutual is obligated to defend McDonald’s and 

DAK4 in connection with the Massey Lawsuit will terminate existing uncertainty and 

controversy between the parties relative to the construction of the DAK4 Policy and the parties’ 

rights, status, and legal relations thereunder. 

WHEREFORE, McDonald’s and DAK4 request in the alternative entry of judgment in 

their favor and against Austin Mutual as follows: 

a. Finding and declaring that that Austin Mutual is obligated to defend McDonald’s 

and DAK4 against the Massey Lawsuit; 

b. Awarding McDonald’s and DAK4 taxable costs under Section 155 of the Illinois 

Insurance Code, including but not limited to attorneys’ fees and costs incurred in the instant 

coverage action; and 

c. Awarding such other and further relief that this Court deems proper under the 

evidence and circumstances. 

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COUNT III 

(Breach of Contract – Duty to Defend – Lexi Policy) 

43. Plaintiffs incorporate and reallege the allegations in Paragraphs 1 through 42 as if 

the same were fully set out herein. 

44. Lexi has paid all premiums and McDonald’s and Lexi have substantially 

performed any and all conditions under the Lexi Policy that have not been waived by Austin 

Mutual. 

45. Austin Mutual has breached its contractual duty to defend McDonald’s and Lexi 

under the Lexi Policy by failing to accept coverage or defend McDonald’s and Lexi in 

connection with the Massey Lawsuit. 

46. As a direct and proximate result of Austin Mutual’s breach of contract, 

McDonald’s and Lexi have suffered damages because, among other things, they have incurred 

and will incur attorneys’ fees, costs and expenses to defend the Massey Lawsuit. 

47. As a direct and proximate result of Austin Mutual’s breach of contract, 

McDonald’s and Lexi have suffered damages because they have incurred and will incur 

attorneys’ fees, costs and expenses in the instant coverage action. 

 WHEREFORE, McDonald’s and Lexi respectfully request that this Court enter a 

judgment: 

a. Awarding McDonald’s and Lexi damages in an amount sufficient to compensate 

them for all damages resulting from the breach of contract by Austin Mutual, plus prejudgment 

interest; 

b. Awarding McDonald’s and Lexi taxable costs under Section 155 of the Illinois 

Insurance Code, including but not limited to attorneys’ fees and costs incurred in the instant 

coverage action; and 

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c. Awarding all other just and proper relief. 

COUNT IV 

(Declaratory Judgment – Duty to Defend – Lexi Policy) 

48. Plaintiffs incorporate and reallege the allegations in Paragraphs 1 through 47 as if 

the same were fully set out herein. 

49. Pleading in the alternative, pursuant to 28 U.S.C. § 2201, an actual and justiciable 

controversy has arisen concerning Austin Mutual’s duty to defend McDonald’s and Lexi under 

the Lexi Policy with respect to the Massey Lawsuit. Pursuant to 28 U.S.C. §§ 2201 and 2202, 

this Court is granted the power to determine and adjudicate the rights and obligations of the 

parties hereto. 

50. Pleading in the alternative, the issuance of a declaratory judgment with respect to 

the parties’ dispute regarding whether Austin Mutual is obligated to defend McDonald’s and 

Lexi in connection with the Massey Lawsuit will terminate existing uncertainty and controversy 

between the parties relative to the construction of the Lexi Policy and the parties’ rights, status, 

and legal relations thereunder. 

WHEREFORE, McDonald’s and Lexi request in the alternative entry of judgment in 

their favor and against Austin Mutual as follows: 

a. Finding and declaring that Austin Mutual is obligated to defend McDonald’s and 

Lexi against the Massey Lawsuit; 

b. Awarding McDonald’s and Lexi taxable costs under Section 155 of the Illinois 

Insurance Code, including but not limited to attorneys’ fees and costs incurred in the instant 

coverage action; and 

c. Awarding such other and further relief that this Court deems proper under the 

evidence and circumstances. 

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Dated: August 27, 2020 MCDONALD’S CORPORATION and 

 MCDONALD’S USA, LLC 

 By: /s/ Paul Walker-Bright 

 One of the Attorneys for Plaintiffs 

 McDonald’s Corporation and McDonald’s 

 USA, LLC 

 

Angela R. Elbert (ARDC# 6236964) 

aelbert@nge.com 

Paul Walker-Bright (ARDC# 6226315) 

pwalkerbright@nge.com 

NEAL, GERBER & EISENBERG LLP

Two North LaSalle Street, 17th Floor 

Chicago, Illinois 60602 

Telephone: (312) 269-8000 

Facsimile: (312) 269-1747 

 LEXI MANAGEMENT, LLC 

 By: /s/ Steven L. Baerson 

 One of the Attorneys for Plaintiff Lexi 

 Management, LLC 

 

Steven L. Baerson (ARDC# 6209539) 

slb@wb-legal.com 

Williams & Baerson, LLC 

One North LaSalle Street, Suite 1350 

Chicago, Illinois 60602 

Telephone: (312) 629-9003 

Facsimile: (312) 629-9020 

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 DAK4, LLC 

 By: /s/ Sande S. Shamash 

 One of the Attorneys for Plaintiff DAK4, 

 LLC 

 

Anthony J. Madonia (ARDC# 6205042) 

amadonia@madonia.com 

Sande S. Shamash (ARDC# 6216829) 

sshamash@madonia.com 

ANTHONY J. MADONIA & ASSOCIATES, LTD. 

2700 South River Road, Suite 150 

Des Plaines, Illinois 60018 

Telephone: (312) 578-9300 

Facsimile: (312) 578-9303 

 

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JURY DEMAND 

Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiffs hereby demand a trial by 

jury on all issues so triable. 

MCDONALD’S CORPORATION and 

MCDONALD’S USA, LLC 

By: /s/ Paul Walker-Bright_______________ 

One of the Attorneys for Plaintiffs 

McDonald’s Corporation and McDonald’s 

USA, LLC 

 LEXI MANAGEMENT, LLC 

By: /s/ Steven L. Baerson 

 One of the Attorneys for Plaintiff Lexi 

 Management, LLC 

 DAK4, LLC 

By: /s/ Sande S. Shamash 

 One of the Attorneys for Plaintiff DAK4, 

 LLC 

 

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