United States District Court, N.D. Ohio, Eastern Division
CERTAIN UNDERWRITERS AT LLOYDS LONDON SUBSCRIBING TO POLICY NO. HMPL 18-0164 AND HMPL 17-0158, PLAINTIFF,
KG ADMINISTRATIVE SERVICES, INC., et al., DEFENDANTS.
HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE
the Court is the motion for judgment on the pleadings filed
by plaintiff Certain Underwriters at Lloyds London
Subscribing to Policy No. HMPL 18-0164 and HMPL 17-0158
(“Underwriters” or “plaintiff”).
(Doc. No. 16 [“Mot.”].) Defendant KG
Administrative Services, Inc.
(“KG”) filed a memorandum in opposition (Doc. No.
34 [“Opp'n”]), and Underwriters filed a reply
(Doc. No. 35 [“Reply”]). For the reasons set forth
herein, Underwriters' motion is granted.
Civ. P. 12(c) provides that “[a]fter the pleadings are
closed-but early enough not to delay trial-a party may move
for judgment on the pleadings.” The standard of review
for a motion for judgment on the pleadings is the same as for
a motion to dismiss for failure to state a claim for relief
under Rule 12(b)(6). JPMorgan Chase Bank, N.A. v.
Winget, 510 F.3d 577, 581 (6th Cir. 2007).
“‘For purposes of a motion for judgment on the
pleadings, all well-pleaded material allegations of the
pleadings of the opposing party must be taken as true, and
the motion may be granted only if the moving party is
nevertheless clearly entitled to judgment.'”
Id. at 581 (quoting S. Ohio Bank v. Merrill
Lynch, Pierce, Fenner & Smith, Inc., 479 F.2d 478,
480 (6th Cir. 1973)). The district court, however,
“need not accept as true legal conclusions or
unwarranted factual inferences.” Mixon v.
Ohio, 193 F.3d 389, 400 (6th Cir. 1999) (citing
Morgan v. Church's Fried Chicken, 829 F.2d 10,
12 (6th Cir. 1987)).
considering a Rule 12(c) motion, the allegations in the
pleadings are the Court's primary focus. Still, the Court
may also consider “‘other materials that are
integral to the [pleadings], are public records, or are
otherwise appropriate for the taking of judicial
notice.'” Campbell v. Nationstar Mortg.,
611 Fed.Appx. 288, 291 (6th Cir. 2015) (quoting Ashland,
Inc. v. Oppenheimer & Co., 648 F.3d 461, 467 (6th
Cir. 2011)). The Federal Rules of Evidence permit the Court
to take judicial notice of a fact that “is not subject
to reasonable dispute because it: (1) is generally known
within the trial court's territorial jurisdiction; or (2)
can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.” Fed.R.Evid.
201(b). “The court may take judicial notice on its
own[.]” Fed.R.Evid. 201(c)(1). The court may take
judicial notice of a fact at any stage of the proceedings.
See Livingston Christian Sch. v. Genoa Charter Twp.,
858 F.3d 996, 1008 (6th Cir. 2017) (citing Fed.R.Evid. 201,
Advisory Comm. Notes (f)).
commenced this action on May 31, 2019, seeking rescission and
declaratory judgment with respect to an errors and omissions
coverage certificate of insurance that it issued to KG (the
“Lloyd's Policy”). (Compl. ¶¶ 1, 9;
Answer ¶ 9.)
KG is a
third-party administrator of self-funded health benefit
plans. (Compl. ¶ 3; Answer ¶ 3.) Underwriters
alleged that KG was hired by the various other defendants to
administer their self-funded health benefit plans (Compl.
¶¶ 4-7), but KG denies those allegations (Answer
¶¶ 4-7). The other defendants have sued KG in
district courts elsewhere (see Compl. ¶¶
14, 18, 23; Answer ¶¶ 14, 18, 23), or have made a
demand against KG (Compl. ¶ 31; Answer ¶ 31). KG
has requested coverage under the Lloyd's Policy, and
Underwriters is providing a defense to KG for the lawsuits
under a complete reservation of rights. (Compl. ¶¶
12-13; Answer ¶¶ 12-13).
light of these complaints/demands, Underwriters claims it is
entitled to rescission of the Lloyd's Policy, and a
declaratory judgment, based on the language of the Policy and
the undisputed facts set forth below.
December 28, 2018, KG submitted a renewal application to
Underwriters - which KG claims “speaks for
itself” (Answer ¶ 34) - for a claims-made and
reported certificate of insurance for those claims that are
first made against the insured and reported in writing during
the policy period. (Compl. ¶ 34 & Doc. No. 1-9
Renewal Application contained the following language:
The Applicant's failure to report to the Underwriters any
claim made against it during the current certificate term, or
act, omission or circumstances which the Applicant is aware
of which may give rise to a claim before the expiration of
the current certificate may create a lack of coverage for
each Applicant who had a basis to believe that any such act,
error, omission or circumstance might reasonably be expected
to be the basis of a claim.
(Id. ¶ 36 (quoting Renewal Application at 151
¶ 3).) The Renewal Application also stated:
The certificate applied for provides coverage on a claims
made and reported basis and will apply only to claims that
are first made against the Applicant and reported in writing
to the Underwriters during the certificate of insurance
period. Claims expenses are within and reduce the limit of
(Id. ¶ 37 (quoting Renewal Application at 151
¶ 4).) KG asserts that this language “speaks for
itself.” (Answer ¶¶ 36-37.)
January 11, 2019, KG's President, Robert C. Frazier, Jr.,
executed a ...