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Category: Volume 17, Edition 5 cases
National American Insurance Company v. Progressive Corporation
Posted on May 27, 2014 Author Categories Volume 17, Edition 5 cases
United States District Court, N.D. Illinois, Eastern Division.
National American Insurance Company, Plaintiff,
The Progressive Corporation and Artisan and Truckers Casualty Company, Defendants.
No. 13 CV 1290
1:13–cv–01290Signed May 15, 2014
Jason Theodore Mayer, Christine Verzani Anto, SmithAmundsen, L.L.C., Chicago, IL, for Plaintiff.
Jason Orleans, Mark Patrick Doyle, Chilton Yambert & Porter LLP, Waukegan, IL, David William Porter, Chilton Yambert Porter LLP, Geneva, IL, for Defendants.
MEMORANDUM OPINION AND ORDER
MICHAEL T. MASON, United States Magistrate Judge
*1 National American Insurance Company ("NAICO") has sued the Progressive Corporation and Artisan & Truckers Casualty Company ("Artisan"), seeking to recover money NAICO paid out on behalf of its insured, which it claims Artisan should have paid. The case is before the Court on cross-motions for summary judgment. For the reasons explained below, NAICO's motion [31] is granted, and Artisan's motion [44] is denied.
On August 23, 2010, the truck Gustavo Bernal was driving was hit from behind by a semi truck tractor. Gustavo and his wife Maria, who was riding with him at the time, were both injured. A few months later, in October 2010, the Bernals sued Viktor Barengolts and Eduard Gaidishev, who were in the truck at the time of the crash; they also sued Michael Barengolts, who owned the truck at the time of the crash, and Unlimited Carrier, whose placards were on the truck at the time of the crash. See Bernal v. Unlimited Carrier et al., No. 10 L 822, Second Amended Complaint, filed in the Circuit Court of Will County, Illinois (NAICO's Statement of Facts, Exhibit A–1; Artisan's Statement of Facts, Exhibit B). There is some question about who was driving the truck at the time of the accident—whether it was Viktor or Eduard; but there is no question that, at the time of the crash, the truck carried placards bearing a United States Department of Transportation ("USDOT") number registered to Unlimited Carrier.
Two insurance policies were potentially at play in the Bernal litigation—one issued by NAICO to Unlimited Carrier and one issued by Artisan to Viktor Barengolts. The NAICO policy, commercial truckers liability policy number SL05050112, was effective from December 7, 2009 to December 7, 2010 and provided liability coverage for "all sums an 'insured' legally must pay as damages because of 'bodily injury' or 'property damage' to which this insurance applies, caused by an 'accident' and resulting from the ownership, maintenance or use of a covered 'auto'." NAICO Policy Number SL05050112, Section II(A) (attached as Exhibit A–2 to Plaintiff's Statement of Facts). Covered autos, as defined in the policy, included "owned autos" and "hired autos"—those leased, hired, rented or borrowed by the insured—as well as autos that were owned by the insured's employees and not owned, leased, hired, rented or borrowed by the insured, "but only while used in your business or your personal affairs." Id., Section I(A).
The Artisan Policy issued to Viktor Barengolts (policy number 07572918–0) lists Viktor as the insured and as a "related driver"; it also lists Michael Barengolts as an "additional insured" and it lists Michael's truck, the 2001 Volvo (VIN number 4V4NC9TJ11 N312861) in the "auto coverage schedule." See Artisan Policy No. 07572918–0, p. 2 (Plaintiff's Statement of Facts, Exhibit C–A; Defendant's Statement of Facts, Exhibit F). Under the policy, Artisan agreed to "pay damages, OTHER THAN PUNITIVE OR EXEMPLARY DAMAGES, for bodily injury, property damage, and covered pollution cost or expense, for which an insured becomes legally responsible because of an accident arising out of the ownership, maintenance or use of an insured auto." Id., p. 8. The parties do not dispute that Viktor is an insured, that the Volvo semi tractor is an insured auto, or that the accident involving the Bernals arose out of the use of that auto.
*2 The Artisan policy also includes a "Contingent Liability Endorsement" that provides:
Except as specifically modified in this Endorsement, all provisions of the Commercial Auto Policy apply.
We agree with you that the insurance provided under your Commercial Auto Policy is modified as follows:
We agree with you that the provisions of the policy relating to Bodily Injury Liability and Property Damage Liability are subject to the following limitations:
Liability coverage for an insured auto described in the Declarations is changed as follows:
1. These coverages do not apply when the insured auto is being operated, maintained or used for or on behalf of anyone else or any organization whether or not for compensation.
2. These coverages do not apply when the insured auto is being used to transport goods or merchandise, or while the goods or merchandise are being loaded and unloaded from the insured auto.
ALL OTHER TERMS, LIMITS AND PROVISIONS OF THE POLICY REMAIN UNCHANGED.
Id., p. 20 (Plaintiff's Statement of Facts, Exhibit C–A; Defendant's Statement of Facts at Exhibit F).
Initially, the defense of the suit was tendered to NAICO, which investigated the accident and surrounding circumstances. NAICO, which assumed the defense pursuant to a reservation of rights, learned that the lease agreement between Unlimited Carrier and Michael Barengolts was not yet in place at the time of the accident; it wasn't signed until August 31, 2010, more than a week after the accident. According to NAICO, Unlimited Carrier's placards were not authorized until that agreement was signed. Nevertheless, NAICO defended its insured in the Bernal lawsuit and, on behalf of Unlimited Carrier, Viktor Barengotls, Michael Barengolts and Eduard Gaidishev, ultimately settled with the Bernals for a total of almost $100,000 (it paid $50,000 to Gustavo and $48,750 to Maria).
Immediately after the Bernals filed suit, Viktor contacted Artisan directly about coverage. On October 25, 2010, Artisan wrote to him advising that the claims were not covered because, at the time of the accident, he was driving on behalf of Unlimited Carrier. See Plaintiff's Statement of Facts, Group Exhibit A–4. Despite this, counsel for Unlimited Carrier and counsel for Viktor Barengolts repeatedly requested that Artisan get involved in the lawsuit, but Artisan repeatedly declined.
On January 7, 2011, counsel for Unlimited Carrier wrote to Artisan demanding that it defend Viktor Barengolts under the policy issued to him. See Plaintiff's Statement of Facts, Group Exhibit A–3. In a letter dated January 27, 2011, Artisan refused. On April 8, 2011, counsel for Mr. Barengolts wrote to Artisan tendering the defense and requesting copies of any documents, photographs or statements in its possession that supported its decision to deny coverage in connection with the Bernal lawsuit. Group Exhibit A–3. In a letter sent April 13, 2011, Artisan again refused. Group Exhibit A–4.
Counsel for Mr. Barengolts reiterated his tender of the defense and indemnity in a letter dated August 18, 2011. That letter advised Artisan that both Viktor and Michael Barengolts would look to Artisan for reimbursement of any defense costs, including attorney's fees, and any amounts paid in settlement or in judgment in the suit. Group Exhibit A–3. Three days later, Artisan sent another refusal letter, reiterating its position that the Contingent Liability Endorsement operated to exclude coverage for the claims. Group Exhibit A–4.
*3 On February 17, 2012, counsel for the Barengoltses again wrote to Artisan advising that the lease agreement between Unlimited Carrier and Michael Barengolts (which counsel attached) was not signed until 8 days after the accident with the Bernals. Id. Based upon this, counsel once again tendered the defense and indemnity of both Viktor and Michael Barengolts. Artisan again denied the tender, representing that the lease date changed nothing with respect to the Contingent Liability Endorsement. Group Exhibit A–4. On March 18, 2012, counsel for the Barengoltses again wrote to Artisan advising that he disagreed with the position Artisan was taking. See Group Exhibit A–3. On May 3, 2012, Artisan responded with another denial. See Group Exhibit A–4.
After the court denied both parties' motions in the Bernal lawsuit, finding that issues of fact remained as to whether Michael and Viktor Barengolts were agents of Unlimited Carrier at the time of the incident, counsel for the Barengoltses again tendered the defense and indemnity to Artisan. See September 25, 2012 letter from Gary M. Feiereisel to Kelly C. Chec (attached as part of Exhibit A). Artisan again declined.
On February 19, 2013, after the Bernal litigation was resolved, NAICO filed suit in this court, seeking to recover defense and indemnity costs it alleges Artisan should have paid on behalf of its insured. NAICO seeks a declaratory judgment that Artisan breached its duty to defend and indemnify its insureds, Viktor Barengolts and Michael Barengolts, in the Bernal lawsuit; NAICO's complaint also includes claims to recover defense and indemnity expenses based upon equitable subrogation (count II), contractual subrogation (count III) and equitable contribution (count IV). Artisan answered the complaint, denying that it had any obligation to defend or indemnify; it also filed a counterclaim, seeking a declaratory judgment that coverage does not exist under its policy for the Bernals' claims, that NAICO properly defended and indemnified against the underlying Bernal lawsuit and that NAICO is not entitled to any reimbursement from Artisan for defense or indemnification costs.
The case is before the Court on cross motions for summary judgment. NAICO argues that the allegations in the Bernals' complaint triggered Artisan's duty to defend, as provided by the plain language of the policy issued to Viktor Barengolts. Artisan argues just the opposite—that under the plain terms of the policy it had no duty to defend.
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). At this stage, the Court does not weigh evidence or determine the truth of the matters asserted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court views all evidence and draws all inferences in favor of the non-moving party, and may enter summary judgment only if the record as a whole establishes that no reasonable jury could find for the non-moving party. Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir.2000).
NAICO argues that it is entitled to summary judgment with respect to both Artisan's duty to defend and Artisan's duty to indemnify; it argues that, under the plain language of Artisan's policy, Artisan was on the hook for both defense and indemnification. Artisan argues that the plain language of its policy clearly excludes coverage, thereby eliminating any duty to defend or indemnify its insureds for the Bernals' claims.
A. Artisan's Duty to Defend
There is no dispute that Illinois law governs the insurance policies at issue in this case. In Illinois, an insurer's duty to defend its insured is broader than its duty to indemnify. E.g., Hilco Trading, LLC v. Liberty Surplus Insurance Corp., No. 1–12–3503, ––– N.E.3d ––––, ––––, 2014 WL 1028536, at *8 (Ill.App.Ct. March 17, 2014)(citing West Bend Mutual Insurance Co. v. Sundance Homes, Inc., 238 Ill.App.3d 335, 179 Ill.Dec. 494, 606 N.E.2d 326, 327 (1992)). To determine whether the duty to defend has been triggered, we look to the allegations in the complaint and compare them with the language of the policy. Northfield Insurance Co. v. City of Waukegan, 701 F.3d 1124, 1129 (7th Cir.2012)(citing General Agents Insurance Co. Of America, Inc. v. Midwest Sporting Goods Co., 215 Ill.2d 146, 293 Ill.Dec. 594, 828 N.E.2d 1092, 1098 (2005)). "[A]n insurer has a duty to defend the insured if the underlying complaint alleges facts that fall within, or potentially within, the policy's coverage." Menard, Inc. v. Country Preferred Insurance Co., 372 Ill.Dec. 801, 992 N.E.2d 643, 648 (2013)(citing Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill.2d 90, 180 Ill.Dec. 691, 607 N.E.2d 1204, 1212 (1992)). And, if "the complaint alleges several causes of action or theories of recovery against an insured," the duty to defend is triggered if even one of those causes of action or theories of recovery is within the scope of coverage." Maryland Casualty Co v. Peppers, 64 Ill.2d 187, 355 N.E.2d 24, 28 (1976), cited in Pekin Insurance Co. v. Kiefer Landscaping, LLC, No. 5–12–0588, 2014 WL 272845, at *2 (Ill.App.Ct. Jan. 23, 2014). "Both the policy terms and the allegations in the underlying complaint are liberally construed in favor of the insured, and any doubts and ambiguities are resolved against the insurer." Amerisure Mutual Insurance Co. v. Microplastics, Inc., 622 F.3d 806, 811 (7th Cir.2010)(citing State Farm Fire and Casualty Co. v. Perez, 387 Ill.App.3d 549, 326 Ill.Dec. 580, 899 N.E.2d 1231, 1235 (2008); Pekin Insurance Co. v. Beu, 376 Ill.App.3d 294, 315 Ill.Dec. 167, 876 N.E.2d 167, 170 (2007)).
*4 Here, the relevant complaint is the one filed by Gustavo and Maria Bernal in the Will County action. It includes eight counts, though many of the counts have overlapping allegations. All of the counts allege that, on August 23, 2010, Gustavo Bernal was operating a pick up truck and attached trailer eastbound on Route 30 just west of its intersection with 119th Street in Wheatland Township, Will County, Illinois, with Maria Bernal riding as a passenger in the truck. Bernal v. Unlimited Carrier, Inc., et al., No. 10 L 822, Second Amended Complaint, e.g., Count I, ¶¶ 1, 2. The counts all allege that there was a collision between the Bernals' truck and a truck that was placarded with a USDOT number that was registered to Unlimited Carrier, that the collision, through no negligence on the part of the plaintiffs, caused them to suffer damages in excess of $50,000 each.
More specifically, counts I and II of the complaint allege that, on that date, Viktor Barengolts was operating a tractor with VIN 4V4NC9TJ11 N312861 and USDOT registration number 1701017, a number that was registered to Unlimited Carrier; that he was operating the tractor "as an agent and/or employee of Unlimited Carrier"; that he was operating the tractor "within the course and scope of his employment and/or agency relationship with Unlimited Carrier"; and that, in his capacity as an agent of Unlimited Carrier, he committed various acts of negligence (e.g., speeding, failing to slow down, failing stop), causing a collision that resulted in injuries to the plaintiffs. Id., Count I, ¶¶ 6–7, 11–13 (Gustavo), Count II, ¶¶ 6–7, 11–13 (Maria).
Counts III and IV are identical, except that they allege that Eduard Gaidishev was driving at the time of the accident; these counts allege that Gaidishev was operating the tractor as an agent and/or employee of, and in the course and scope of his employment and/or agency relationship with, Unlimited Carrier, and that, in his capacity as an agent and/or employee of Unlimited Carrier, he committed various acts of negligence, causing a collision and injuries to the plaintiffs. Id., Count III, ¶¶ 7–8, 12–14; Count IV, ¶¶ 7–8, 12–14.
Counts V and VI allege that, at the time of the accident, the tractor was being driven by Viktor Barengolts, but was owned by Michael Barengolts; they allege that, at the time of the accident, Viktor was operating the tractor "as the agent and/or servant of Michael Barengolts" and that, at the time of the accident, Viktor was "within the course and scope of his employment and/or agency relationship with Unlimited Carrier." Count V, ¶¶ 3–5 (Gustavo), Count VI, ¶¶ 3–6 (Maria). They allege that, in his capacity as the agent and/or servant of Michael Barengolts, Viktor committed various acts of negligence, causing a collision and injuring the plaintiffs. Id., Count V, ¶¶ 9–11 (Gustavo), Count VI, ¶¶ 10–12 (Maria). Counts VII and VIII are identical, except that they allege that Gaidishev, and not Viktor, was operating the tractor as Michael's agent and/or employee, and that, in that capacity as agent and/or servant of Michael Barengolts, committed various acts of negligence, causing the collision and injuries to the Bernals. Id., Count VII, ¶¶ 3–5, 9–11 (Gustavo), Count VIII, ¶¶ 3–5, 9–11 (Maria).
NAICO argues that, because the Bernals' complaint alleges alternatively that, at the time of the accident, the truck was being driven on behalf of Unlimited Carrier or on behalf of Michael Barengolts, it triggered a duty to defend on the part of Artisan. Artisan disagrees, arguing that all of the counts—no matter the differences in the particular allegations—allege that, at the time of the accident, the truck was "under the authority and control" of Unlimited Carrier; this means, according to Artisan, that, under the plain terms of the policy, Artisan did not have a duty to defend or indemnify. To support its argument, Artisan relies upon the Contingent Liability Endorsement cited above.
*5 To determine whether a particular insurance coverage exclusion applies, we look to general rules of contract interpretation. E.g., Netherlands Insurance Co. v. Phusion Projects, Inc., 737 F.3d 1174, 1177 (7th Cir.2013)(citing Founders Insurance Co. v. Munoz, 237 Ill.2d 424, 433, 341 Ill.Dec. 485, 930 N.E.2d 999, 1003–1004 (2010)). The Court's "primary function" in interpreting an insurance policy "is to ascertain and give effect to the intent of the parties as expressed in the contract"; "[i]f the language of the insurance policy is unambiguous and does not offend public policy, the provision will be applied as written." Netherlands, 737 F.3d at 1177 (citing Munoz, 341 Ill.Dec. 485, 930 N.E.2d at 1003–1004).
The Contingent Liability Endorsement in Artisan's policy excludes coverage "when the insured auto is being operated, maintained or used for or on behalf of anyone else or any organization whether or not for compensation." No one is suggesting that the exclusion is ambiguous, and the Court finds that it is not ambiguous. A close examination of the Bernals' allegations, read against this endorsement, shows that at least some of the claims—specifically, counts V, VI, VII and VIII, which allege that the driver, in the capacity of agent and/or servant of Michael Barengolts, committed various acts of negligence causing the collision and resulting damages—potentially fall outside of the exclusion and would, therefore, be covered.
Artisan argues that, even these claims, allege that Viktor or Eduard were, at the time of the accident, within the course and scope of their employment and/or agency relationship with Unlimited Carrier. That is true, but that is not what the Contingent Liability Endorsement excludes. The exclusion applies if the insured auto is being operated for or on behalf of anyone else. Although the allegations of the complaint do not track the language of the exclusion precisely, it is clear that counts I through IV would fall within the scope of the exclusion—they allege that the driver (whether it was Viktor or Eduard) was driving as an agent or employee of Unlimited Carrier, while acting within the scope of his employment with Unlimited Carrier, and that, in their capacity as agents or employees of Unlimited Carrier they committed various acts of negligence causing the claimed damages. The only reasonable way to read these allegations is that they allege that the driver was operating the insured auto on behalf of Unlimited Carrier. But the same cannot be said of the allegations in counts IV through VIII. Although all of the counts allege that the driver was, at the time of the accident, "within the course and scope of his employment and/or agency relationship with Unlimited Carrier" only the first four counts allege that the driver was operating the truck as an agent or employee of (that is, on behalf of) Unlimited Carrier. The other counts allege that the driver was operating the truck as an agent or employee of (that is, on behalf of) Michael Barengolts.FN1
FN1. Significantly, Artisan does not argue that Michael Barengolts would fall within the definition of "anyone else or any organization" and rightly so, given that he is a named insured and the owner of the insured auto.
Artisan argues that the complaint alleges in all counts that, at all times relevant to this dispute, the truck was under Unlimited Carrier's "authority and control." But the policy language does not exclude coverage when the truck is under someone else's authority and control; it excludes coverage when the truck is being operated, maintained or used for or on behalf of anyone else or any organization, and that is not necessarily the same thing. The truck could, in theory, be under the authority and control of Unlimited Carrier (because of the presence of Unlimited Carrier's placards on the truck) and still be operated or used on a particular outing on behalf of Michael Barengolts, as alleged, or even for the insured's own personal reasons. The record before the Court shows that, despite the presence of the placards on the truck, the legal relationship between Michael and Unlimited Carrier had not been solidified and the truck was not yet authorized to carry Unlimited Carrier's placards, though it did. Under those circumstances, despite the presence of the placards, the truck cannot be said to have been operated for or on behalf of Unlimited Carrier at that time. Given that the complaint's allegations and the policy language must both be construed in favor of the insured, the Court finds that the allegations in counts V through VIII potentially fall within the scope of coverage. Accordingly, Artisan was wrong to refuse to defend its insured and its persistent refusal to defend based upon the Contingent Liability Endorsement was unreasonable.
B. Artisan's Duty to Indemnify
*6 As we've noted above, the duty to defend is much broader than the duty to indemnify. If there is no duty to defend, there can be no duty to indemnify. But our finding that Artisan had a duty to defend does not necessarily mean it had a duty to indemnify. Having determined that Artisan had a duty to defend (because the allegations in the complaint potentially fell within the scope of coverage), we must now consider whether it also had a duty to indemnify (because the claims actually fell within the scope of coverage).
Artisan argues that the concept of "placard liability" absolves it of any liability. "Placard Liability"—also called "logo liability"—"operates to hold federally authorized carriers … that are licensed by the United States Department of Transportation (USDOT) and display their USDOT certificate number on their trucks, vicariously liable for the negligence of drivers operating under a lease." U.S. Bank v. Lindsey, 397 Ill.App.3d 437, 336 Ill.Dec. 306, 920 N.E.2d 515, 525 (2009)(citing Schedler v. Rowley Interstate Transportation Co., 68 Ill.2d 7, 11 Ill.Dec. 541, 368 N.E.2d 1287 (1977); Kreider Truck Service, Inc. v. Augustine, 76 Ill.2d 535, 31 Ill.Dec. 802, 394 N.E.2d 1179; Fulton v. Terra Cotta Truck Service, Inc., 266 Ill.App.3d 609, 203 Ill.Dec. 561, 639 N.E.2d 1380 (1994)). The point of "placard liability"—and, indeed, of the Interstate Commerce Act—"is to make a carrier under the Act liable for those injuries caused to the traveling public which arise out of the negligence operation of any vehicle leased to it and operated under its ICC permit." Lindsey, 336 Ill.Dec. 306, 920 N.E.2d at 525 (citing Transamerican Freight Lines, Inc. v. Brada Miller Freight Systems, Inc., 423 U.S. 28, 96 S.Ct. 229, 46 L.Ed.2d 169 (1975)). Thus, the doctrine of "placard liability" means that Unlimited Carrier would be liable to the Bernals for damage caused by the truck that crashed into them because the truck was carrying Unlimited Carrier's logos or placards at the time of the crash. But the doctrine says nothing about whether NAICO, as Unlimited Carrier's insurer, has the right to seek reimbursement from Artisan, which insured the truck itself and (maybe) the driver. Thus, Artisan's argument to the contrary notwithstanding, the doctrine of placard liability does not end the matter. Although the doctrine ensures that the Bernals get compensated for their damages, the doctrine does not affect NAICO's right to seek reimbursement from Artisan for money it expended to cover the Bernals' damages.
Under the plain terms of the policy—and as Artisan admits—"Artisan insured the subject tractor, but not while it was "being operated, maintained, or used for or on behalf of anyone else or any organizations whether or not for compensation." Defendant's Combined Memorandum of Law, p. 1 (emphasis in original). The question of whether the truck was being "operated, maintained, or used for or on behalf of anyone else or any organizations whether or not for compensation" requires consideration of more than just the placards on the truck. Resolution of that question requires consideration of all of the evidence in the record—the deposition testimony, as well as the documentary and photographic evidence in the case.
There is at least one piece of concrete evidence to suggest that the truck was being operated on behalf of Unlimited Carrier at the time of the accident: the photographs taken at the time of the accident show that the placards bearing Unlimited Carrier's USDOT number were on the truck. On the flip side, there is at least one piece of concrete evidence to suggest that the truck was not yet authorized to be operated on behalf of Unlimited Carrier at the time of the accident: the lease agreement between Michael Barengolts and Unlimited Carrier was signed August 31, 2010—after the accident. The testimony does little to clear up the issue.
*7 At his deposition, Michael Barengolts testified that his first contact with Unlimited Carrier occurred the Friday before the accident; he testified that he and Viktor went to prepare paperwork and have the truck checked out. Deposition of Michael Barengolts, p. 24 (attached as Exhibit E to plaintiff's Statement of Facts). Michael testified that he and Viktor went to Unlimited Carrier's Lansing facility (he thinks) on August 20th with the truck, and that at that time they were given some numbers for the truck, which they put on over the weekend. Id., pp. 24–27, 31–33. Michael testified that he signed the lease agreement with Unlimited Carrier on August 31, 2010, but that it was his understanding the lease should have been signed on August 20th, when he and Viktor met with Unlimited Carrier for the first time. Id., pp. 53–54, 57–58.
Michael testified that, on the morning of August 23rd, when he dropped Viktor and Eduard off at the parking lot where he kept the truck parked, it was his understanding that they were going to an Unlimited Carrier facility—maybe Lansing, maybe another facility. Id., pp. 63–64. He testified that, the morning of the accident, Viktor told him they were going to Unlimited Carrier. P. 66. He testified that it was his understanding that they were going there for "starting work or finish what still open question or some papers. But this was close to or close or ready to work." Id., p. 66. Michael testified that, at the time of the accident, his truck had the Unlimited Carrier sticker on it. Id., p. 73. He testified, looking at the pictures of the truck post-accident, that the stickers on the truck were those he received from Unlimited Carrier and that the stickers were on the truck at the time of the accident, that he and Viktor put them on the truck after their meeting with Unlimited Carrier, some time over the weekend of August 20–22. Id., pp. 137–138.
Michael also testified that, after the accident, Artisan came to inspect the truck and paid for the repairs needed to fix the damage done to the truck in the accident; he testified that the repairs cost about $5,000. Id., pp. 71, 75–77.
Michael testified that, at the time of the accident, he did not have an executed lease agreement with Unlimited Carrier. Id., p. 124. He testified that, when he and Viktor went to Unlimited Carrier on August 20th, they didn't have an executed lease agreement; nor did they have an executed lease agreement when they put the stickers on the truck that weekend. Id., pp. 123–124. He testified that he signed the lease agreement on August 31st and understood the lease would not begin until that date. Id., p. 125. Michael also testified that no one at Unlimited Carrier told him he was no longer supposed to drive his truck for personal use or business once he put the Unlimited Carrier sticker on the truck. Id., p. 136.
Viktor testified that he first heard about Unlimited Carrier when he finished driving school in May of 2010. Deposition of Viktor Barengolts, p. 22 (attached as Exhibit F to plaintiff's Statement of Facts). He testified that he looked them up in the yellow pages, went to their facility in Lansing, Illinois and got hired that next week. V. Barengolts Dep., pp. 22–23. He testified that he went to Unlimited Carrier, probably the first week of May, and was hired some time around the 8th of May; he testified that, at that time, he completed a lot of paperwork, including an owner-operator agreement. Id., pp. 24–25, 27. He testified that, at that time, he did not own a truck, neither did his father, but he nonetheless signed the agreement because that is the way things are done in Illinois; he explained that he was actually hired as a subcontractor, not as a driver for the company. Id., p. 33–34. He testified that, after he was hired by Unlimited Carrier, before the accident, he drove their trucks; then, after his father bought the Volvo truck, he planned to drive that truck for the company. Id., pp. 34–35.
*8 Viktor testified that, in an ordinary work day, he would be notified by the dispatcher concerning the available loads, and then he would "stop by the company, you bring all your paperwork from the truck to see if it's not expired, see if the truck don't have any repairs or issues, and since we checked everything, you receiving the load, where to pick up, on the yard or other place, and go." Id., pp. 36–37. He testified that Michael's truck had never been to the Lansing facility of Unlimited Carrier. Id., p. 52. He testified that they did not take the truck to any Unlimited Carrier facility on August 20, 2010—it never went there before the accident. Id., p. 52.
Viktor testified that a week before the accident, he went to the Unlimited Carrier facility in Lansing to pick up the stickers for the Volvo truck. Id., p. 55; he testified that he went by himself, without Michael. Id. He testified that he put the stickers on over the weekend. Id., p. 57; he testified that he put the stickers on both the driver's side of the truck and the passenger's side of the truck. Id., p. 58. He testified that either Friday August 20th, or early in the morning on Monday, August 23rd, he spoke to someone at Unlimited Carrier—the manager of the owner-operator staff, Id., p. 65. Viktor testified that he called him because he "want to make sure when I come over there I start to work." Id., p. 66.
Viktor testified that, on the morning of the accident (August 23), he woke up at 7:00 and planned to go the Unlimited Carrier facility in Lansing. V. Barengolts Dep., p. 69. He testified that he was supposed to be coming to the yard that day and that, "[p]robably before the accident happened, we got the paperwork signed in and he told me exactly which day they expected me. Otherwise, I not have any idea. I know just take the truck and just go, it never happen., It's too much money." Id., p. 69.
Viktor testified that, the morning of the accident, his father Michael drove him and Eduard to the truck, and then Eduard got in the driver's seat and he got in the passenger seat. Id., p. 74. He testified that, within a couple of minutes of Eduard pulling away, he climbed into the sleeping compartment and laid down. Id. He testified that, before the accident, he was lying down behind the seats and then he sat up and looked out the window; he testified that Eduard told him he slowed because the Bernals were stopped completely. Id., p. 77. He testified that, at the time of the accident, Eduard was driving Michael's truck. Id. He testified that he told Eduard to move, and Eduard slid over into the passenger seat. Then Viktor exited the truck through the driver's side and went to see if the people were ok. Id., p. 78. He testified that a police officer then came over and told him to move the truck to the side so traffic could pass; he got in the driver's side and moved the truck; after he parked, then Eduard got out of the truck and was "running around like a crazy person." Id., pp. 79–81. Viktor testified that the first police officer just asked them to move the cars and then he left; three additional police cars then arrived on the scene. Id., pp. 82–83.
Viktor testified that he told the police officer on the scene that he was driving the truck; he testified that "my mind was on the truck, not on the police officer's questions." Id., p. 87. Viktor testified that, in connection with the accident, he was issued tickets for driving too fast and for failing to reduce speed; he testified that he pled guilty to those offenses. Id., p. 91. He testified that the Illinois State Police did a "driver vehicle examination report" after the accident, Id., pp. 92–93.
*9 Viktor was asked, "when you left that morning from the Star Trucking place, did you know that you were going to be driving the truck for Unlimited Carrier that day?" And he answered "[a]ctually, sometimes they surprise people. But, you know, 50–50 I was being a chance." Id., p. 93.
Viktor testified that he and Eduard both worked for Unlimited Carrier as drivers, and that, at one point, after Michael bought the truck, they stopped being company drivers and were becoming owners/operators. Id., pp. 107–109. He testified that this accident happened in between the time he had been fired as a company driver and the time he had carried his first load for Unlimited Carrier as an owner-operator. Id., pp. 109–110. On this issue, the record includes the Owner/Operator Agreement Viktor signed with Unlimited Carrier on May 8th; what it doesn't include is any documentary evidence showing that the agreement was terminated before the accident. There is a letter in the record, written on Unlimited Carrier letterhead, terminating Viktor's employment with the company, but it is dated September 20, 2010. See Artisan's Statement of Facts, Exhibit C–5, p. 31.
Viktor testified that "[a]t the time of the accident, yeah, probably. Yeah, I wasn't working for Unlimited Carrier. That's what I'm trying to tell. On this day I wasn't work for Unlimited Carrier. I was driving to Unlimited Carrier for interview, whatever they need to finish up, and not working." V. Barengolts Dep., p. 111. Along this line, the record includes a statement from Viktor in which he represents that, on August 23, 2010, he "was not under dispatch and was not driving for Unlimited Carrier, Inc. at the time of the accident." Artisan's Statement of Facts, Exhibit C5, p. 32.
Viktor testified that Unlimited Carrier told him "to take the case out of the shoulders of Unlimited Carrier to my shoulders so whatever is happening, I pay. They say they can repay my check. Actually, two of them." V. Barengolts Dep., pp. 122–123. He testified that Unlimited Carrier told him to say false things to Artisan—"don't involve us." Id., p. 123. He testified that he pled guilty on the tickets even though he wasn't driving because he "want to be over with that already. It was like stupid mistake." Id., p. 129.
Dovydas "David" Apanavicius testified that he works for Unlimited Carrier and has done so since approximately 2008, starting as a driver and most recently as customer relations manager and safety director. Apanavicius Dep., pp. 12–14, 18–20 (attached as Exhibit G to plaintiff's Rule 56.1 Statement of Facts). He testified that, in his capacity as safety director, he was responsible for overseeing safety department operations—made sure the company was DOT compliant, handled things as they came up. Id., p. 20.
Apanavicius testified that, when a driver or owner/operator is terminated, Unlimited Carrier's safety director would remove the placards and/or conduct the visual inspection to see if the placards are removed from the vehicle. Id., pp. 42. He testified that, when he was the safety director, that was his responsibility. Id., p. 43, He testified that, to his knowledge, Unlimited Carrier never had a situation where a person who was terminated failed to remove the placards. Id., p. 45.
*10 Apanavicius testified that, at one point, Viktor and Eduard were both driving for Unlimited Carrier, and that, at some point, Viktor asked him if it was ok if they both drove Michael's truck. Id., p. 65. Apanavicius testified that, in accordance with the owner/operator agreement, upon termination, the driver was required to surrender a binder containing a bunch of paperwork for Unlimited Carrier—permits to enter certain states and Canada, a fuel card, the IFTA sticker, insurance, etc. Id., pp. 76–77. He testified that Viktor did this when he stopped driving under the agreement signed May 8, 2010 and started driving his father's truck. Id., p. 77.
Apanavicius testified that a truck is supposed to be placarded before its driver "can be dispatched under Unlimited Carrier's freight." Id., p. 98. And that, as a general practice, he would have conducted a physical inspection of the truck to ensure that it had been properly placarded; he testified that he recalls inspecting Michael's truck for placards, but could not recall when he did so. Id., pp. 98–99.
He testified that he saw the police report prepared in connection with the accident, but he could not remember when he saw it. Id., pp. 99–100. He testified that Viktor did not come to the Lansing, Illinois facility the day of the accident. Id., p. 100. He testified that, as he recalled, Michael came to Lansing a week or two weeks after the accident; he testified that he recalled the accident caused damage to the truck, which needed to be fixed before he could pass DOT inspection; he testified the truck could not be operated until it passed inspection. Id., pp. 102–103. Apanavicius testified that Unlimited Carrier and Michael Barengolts entered into only one lease agreement. Id., p. 104. He testified that, according to the logbooks, Viktor and Eduard drove Michael's truck for Unlimited Carrier in September 2010. Id., p. 104.
Apanavicius testified that, as far as he knew, at the time of the accident, Viktor "was driving for his own personal reasons." Id., p. 104. He testified that Viktor was not under dispatch for Unlimited Carrier at the time of the accident, or at any time during the month of August. Id., pp. 109–110.
Apanavicius testified that he was never told who was driving the truck at the time of the accident; he does not know who was driving. Id., p. 133. He testified that he called Viktor to get a statement from him—to clarify what his statement was for insurance purposes. Id., p. 134. He testified that, to his knowledge, neither Viktor, nor Michael nor Eduard was ever fined for having the Unlimited Carrier placard on their truck at the time of the accident. Id., p. 139. He testified that he wrote a statement for Viktor to sign saying he wasn't operating under Unlimited Carrier's placard at the time of the accident. Id., p. 143. He testified that he did not know Michael's truck was placarded with Unlimited Carrier's placard at the time of the accident; he learned about the placards after the accident, when it came up because of insurance. Id., pp. 145–146.
Viktor's testimony—which lacks credibility in many respects—seems to say both that he was, and that he wasn't operating the truck on behalf of Unlimited Carrier at the time of the accident—just as his testimony seems to say both that he was and was not driving the truck the morning of the accident. Apanavicius claims the truck was not being "operated, maintained or used for or on behalf of" Unlimited Carrier at the time of the accident, though he admits that Viktor and Eduard did drive Michael's truck for and on behalf of Unlimited Carrier at some point. And he admits that the presence of Unlimited Carrier's placards on the truck meant that the truck was operating on behalf of Unlimited Carrier. Michael testified that Viktor was going to Unlimited Carrier to pick up a load that day—which is consistent with what Viktor says at one point. Yet Michael also admits that he didn't have a signed agreement with Unlimited Carrier at the time of the accident—something Apanavicius testified was necessary before a truck could be operated on behalf of the company. In short, there remains a genuine issue of fact as to whether the truck was, in fact, being "operated, maintained or used for or on behalf of" Unlimited Carrier at the time of the accident.
*11 Having said all of that, whether the Bernals' claim was, in fact, covered by the Artisan policy is, at this point, irrelevant. Under Illinois law, when a defense is tendered, an insurer has several options: it can seek a declaratory judgment before trial of the underlying action, it can defend the insured under a reservation of rights or it can refuse to defend. E.g., Petersen Sand and Gravel, Inc. v. Maryland Casualty Co., 881 F.Supp. 309, 313 (N.D.Ill.1995) (citing Maneikis v. St. Paul Insurance Co., 655 F.2d 818, 821 (7th Cir.1981)), cited in Prisco Serena Sturm Architects, Ltd. v. Liberty Mutual Insurance Co., No. 94 C 5716, 1996 WL 114785, at *4 (March 14, 1996). If it opts for the latter, it "does so at its peril" should it later be determined that it did so wrongfully. Petersen, 881 F.Supp. at 313. See also Home Federal Savings Bank v. Ticor Title Insurance Co., 695 F.3d 725, 735–736 (7th Cir.2012). An insurer that violates its duty to defend is estopped from denying policy coverage in a subsequent lawsuit by the insured or the insured's assignee. Eclipse Manufacturing Co. v. United States Compliance Co., 381 Ill.App.3d 127, 319 Ill.Dec. 586, 886 N.E.2d 349, 358 (2007); LaGrange Memorial Hospital v. St. Paul Insurance Co., 317 Ill.App.3d 863, 251 Ill.Dec. 191, 740 N.E.2d 21, 31 (2000)(citing Maneikis v. St. Paul Insurance Co., 655 F.2d 818, 821–822 (7th Cir.1981)); Petersen, 881 F.Supp. at 313. Thus, as a practical matter, Artisan is on the hook for indemnification, as well as defense costs.
C. Damages
Having determined that Artisan must reimburse NAICO for defense and indemnification costs, the Court must next decide the amount of that reimbursement award. NAICO argues that, at a minimum, given the respective policy provisions, Artisan should be required to reimburse 50% of what NAICO incurred to settle and defend the Bernal suit. Alternatively, NAICO argues that its policy is excess of any coverage from Artisan, and that Artisan should, therefore, be required to reimburse all of the defense and settlement costs. Sticking to its guns, Artisan argues that it has no duty to defend and no duty to indemnify, therefore, it has no duty to reimburse NAICO for anything.
NAICO's complaint includes claims for contractual subrogation, equitable subrogration and equitable contribution. "Subrogation has been defined as the substitution of another person in the place of a claimant whose rights he succeeds to in relation to the debt or claim asserted, which he has paid involuntarily." Wausau Insurance Co. v. All Chicagoland Moving & Storage Co., 333 Ill.App.3d 1116, 268 Ill.Dec. 139, 777 N.E.2d 1062, 1067 (2002)(citing North American Insurance Co. v. Kemper National Insurance Co., 325 Ill.App.3d 477, 259 Ill.Dec. 448, 758 N.E.2d 856, 859 (2001)). The prerequisites to subrogation are: "(1) a third party must be primarily liable to the insured for the loss; (2) the insurer must be secondarily liable to the insured for the loss under an insurance policy; and (3) the insurer must have paid the insured under that policy, thereby extinguishing the debt of the third party." Wausau Insurance, 268 Ill.Dec. 139, 777 N.E.2d at 1067; North American, 259 Ill.Dec. 448, 758 N.E.2d at 859 (citing State Farm General Insurance Co. v. Stewart, 288 Ill.App.3d 678, 224 Ill.Dec. 310, 681 N.E.2d 625 (1997)).
The NAICO policy includes a "transfer of rights" provision, which states that "[i]f any person or organization to or for whom we make payment under this Coverage Form has rights to recover damages from another, those rights are transferred to us. That person … must do everything necessary to secure our rights and must do nothing after 'accident' or 'loss' to impair them." NAICO Policy No. SL05050112, Section V(A)(5)(Exhibit A–2, p. 61). And, consistent with the transfer of rights provision, Viktor Barengolts executed an assignment on November 18, 2012, assigning to NAICO "all rights, claims, and causes of action against [Artisan]" including those arising out of the failure to provide a defense or coverage in connection with the Bernals' lawsuit. See Exhibit H to Plaintiff's Statement of Facts. These documents would allow NAICO to pursue a contractual subrogation claim.
*12 Additionally, under at least some of the factual scenarios spelled out in the Bernals' complaint, the express provisions of the respective policies would have made Artisan's coverage primary and NAICO's coverage excess. The Artisan policy provided that "[f]or any insured auto that is specifically described on the Declarations Page, this policy provides primary coverage. For an insured auto which is not specifically described on the Declarations Page, coverage under this policy will be excess over any and all other valid and collectible insurance, whether primary, excess or contingent." Artisan Policy Number, General Provisions Section, ¶ 3(a) (attached as Exhibit C–A to Plaintiff's Statement of Facts, p. 16). Michael's truck was specifically described on the Declarations Page. See id., p. 2. The NAICO policy provided that coverage was primary for any covered auto owned by Unlimited Carrier, and excess for any covered auto not owned by Unlimited Carrier. See NAICO Policy Number SL05050112, Section V(B)(5)(e). Accordingly, the prerequisites for contractual subrogation are all present, and the Court finds that NAICO is entitled to reimbursement of all costs incurred in defending and indemnifying the Barengoltses in connection with the Bernals' lawsuit.
For the reasons explained above, the Court finds that Artisan had a duty to defend its insured in the lawsuit filed by the Bernals and that it breached that duty when it repeatedly refused to accept the defense of the suit. Additionally, the Court finds that, as a result of this breach, Artisan is estopped from asserting any coverage defenses under its policy and that NAICO is entitled to reimbursement from Artisan for all costs incurred in connection with its defense and indemnity of the Bernals' claims. Accordingly, Artisan's motion for summary judgment [44] is denied and NAICO's motion for summary judgment [31] is granted.
With respect to the exact amount of the judgment, NAICO's complaint alleges that it settled the Bernals' claims for $98,750 and it spent "approximately $60,000" to defend Viktor and Michael Barengolts in the Bernal lawsuit. But the exact defense costs are not disclosed in the complaint (or in NAICO's summary judgment submissions). Accordingly, the Court is unable to set the amount of the judgment at this time. The case is set for a status hearing on June 11, 2014 at 9:00 a.m. for the purpose of addressing the issue.
Courtney v. Ivanov
United States District Court,
W.D. Pennsylvania.
Eddie L. COURTNEY, Jr. and Kreilkamp Trucking, Inc., Plaintiffs,
Yuriy IVANOV, et al., Defendants.
Civil No. 3:13–227.
Signed May 19, 2014.
Stephen E. Geduldig, Pion Nerone Girman Winslow & Smith PC, Harrisburg, PA, for Plaintiffs.
Edward M. Vavro, Jr., Dickie, McCamey & Chilcote, Chester A. Dudzinski, Cipriani & Werner, Rebecca Sember Izsak, Pittsburgh, PA, Jonathan Dryer, William J. Taylor, Jr., Wilson, Elser, Moskowitz, Edelman & Dicker, Philadelphia, PA, for Defendants.
MEMORANDUM OPINION
KIM R. GIBSON, District Judge.
*1 This matter is before the Court on four related motions, all filed jointly by Defendants Prompt Logistics (Canada) and Prompt Logistics (USA) (collectively, "Prompt Logistics"): (1) a motion for extension of time to file an answer (ECF No. 28); (2) a motion to set aside default as to Prompt Logistics (USA) (ECF No. 30); (3) a motion to set aside default as to Prompt Logistics (Canada) (ECF No. 34); and (4) a motion for leave to file a reply (ECF No. 46). Plaintiffs oppose all four motions. (See ECF Nos. 45, 47). For the reasons that follow, the Court will GRANT both motions to set aside default, GRANT the motion for extension of time to file an answer, and DENY the motion for leave to file a reply.
II. JURISDICTION
The Court has diversity jurisdiction under 28 U.S.C. § 1332(a). Venue is proper under 28 U.S.C. § 1391(b)(2).
III. BACKGROUND
This case arises from personal injuries and property damage sustained when a tractor-trailer, driven by Plaintiff Eddie L. Courtney, Jr., collided with a tractor-trailer driven by Defendant Yuriy Ivanov. Plaintiffs allege the following facts in their complaint.
The Defendants in this case, including Prompt Logistics, operated under certain contracts and agreements to transport and deliver cargo. (ECF No. 1 ¶¶ 17–19). On August 2, 2012, Defendant Ivanov was driving a tractor-trailer on Interstate 80. (Id. ¶ 22). Defendant Ivanov stopped the tractor-trailer in the West-bound, right-hand lane of Interstate 80 without warning and without activating any kind of signal device or light. (Id. ¶¶ 24–25). Plaintiff Courtney, who was also driving his tractor-trailer in the Westbound, right-hand lane of Interstate 80, collided with the rear of Defendant Ivanov's tractor-trailer. (Id . ¶¶ 21, 26). As a result of the accident, Plaintiff Courtney sustained personal injuries and his tractor-trailer, owned by Plaintiff Kreilkamp Trucking Inc., sustained property damage. (Id . ¶¶ 31–39).
Plaintiffs filed an eleven-count complaint (ECF No. 1) against Defendants on September 27, 2013. The complaint asserts the following claims against the Prompt Logistics Defendants: negligent hiring (Count V); negligent entrustment (Count VI); negligence/restatement (Second) of Torts, § 428 (Count VII); joint venture liability (Count VIII); vicarious liability/respondeat superior (Count IX); and damages caused by violations of Motor Carrier Act/federal motor carrier safety rules (Count X).
On December 30, 2013, the Clerk of Court issued a summons to both Prompt Logistics Defendants. (ECF No. 15). Service was perfected as to Prompt Logistics (USA) on January 9, 2014 (see ECF No. 22), and as to Prompt Logistics (Canada) on January 15, 2014 (see ECF No. 27). On February 17, 2014, Plaintiffs filed a request for entry of Default against Prompt Logistics (USA) (ECF No. 23) and a request for entry of Default against Prompt Logistics (Canada) (ECF No. 24). The Clerk entered default as to Prompt Logistics (USA) on February 18, 2014, (ECF No. 26), and as to Prompt Logistics (Canada) on February 21, 2014 (ECF No. 33).
*2 On February 20, 2014, Prompt Logistics filed a motion for extension of time to file an answer or otherwise plead (ECF No. 28). Prompt Logistics also filed a motion to set aside default as to Prompt Logistics (USA) on February 20, 2014, (ECF No. 30), and a motion to set aside default as to Prompt Logistics (Canada) on February 24, 2014 (ECF No. 34). Prompt Logistics filed briefs in support of each motion (ECF Nos. 29, 31, 35). On March 13, 2014, Plaintiffs filed a brief in opposition to the motions (ECF Nos. 45), after which Prompt Logistics filed a motion for leave to file a reply (ECF No. 46), which Plaintiffs oppose (ECF No. 47). These motions are now ripe for adjudication.
IV. STANDARD OF REVIEW
Under Rule 55(c), a court may set aside an entry of default for good cause. Fed.R.Civ.P. 55(c). The Third Circuit has identified four factors a district court must consider when deciding whether to set aside a default: (1) whether setting aside the default would prejudice the plaintiff; (2) whether the defendant has a meritorious defense; (3) whether the default was the result of the defendant's culpable conduct; and (4) whether lesser sanctions would better serve the interests of justice. World Entm't Inc. v. Brown, 487 F. App'x 758, 761 (3d Cir.2012); United States v. $55,518.05 in United States Currency, 728 F.2d 192, 195 (3d Cir.1984); Emcasco Ins. Co. v. Sambrick, 834 F.2d 71, 73 (3d Cir.1987).
The decision to set aside an entry of default is within the discretion of the district court. Bailey v. United Airlines, 279 F.3d 194, 204 (3d Cir.2002). Generally, the entry of default is disfavored because it prevents the claims from being decided on the merits. Scholz Design, Inc. v. Costa, No. 2:10–cv–1640, 2011 WL 635277, at *2 (W.D.Pa. Feb.11, 2011) (citations omitted). Likewise, the Third Circuit has instructed that courts must liberally construe a motion to set aside an entry of default with an eye toward resolving litigation on the merits. Hritz v. Woma Corp. ., 732 F.2d 1178, 1181 (3d Cir.1984); Medunic v. Lederer, 533 F.2d 891, 893–94 (3d Cir.1976).
V. DISCUSSION
A. Prompt Logistics' motions to set aside default
Prompt Logistics assert that good cause exists to set aside the entry of defaults because Defendants "were trying to assess whether Plaintiffs had properly identified the 'Prompt Logistics' entities in the Complaint, which in turn prolonged the filing of a timely responsive pleading to the Complaint." (ECF No. 30 ¶ 18). The Court will separately evaluate the factors under the applicable test, as set forth above.
1. Meritorious Defense
The threshold inquiry in deciding whether to open a default is whether the defendant has asserted a meritorious defense. Hritz, 732 F.2d at 1181. A defaulting party does not need to prove that it will win at trial, but must only show that it has a defense, which at least has merit on its face. Scholz Design, 2011 WL 635277, *5.
*3 In their motions to set aside the defaults, Prompt Logistics assert? "[T]he Movants will present a meritorious defense to the allegations asserted in the Complaint." (ECF No. 30, ¶ 19; ECF No. 34 ¶ 18). In their briefs, Prompt Logistics contend that they are not proper defendants to this action and assert that the reason for the delay in responding to the complaint was Prompt Logistics' attempt to determine whether they were proper parties to the action. Accordingly, the Court will construe this assertion as a defense.
This defense—while only marginally supported by Prompt Logistics-is sufficiently meritorious on its face. The correspondence between Prompt Logistics and the Plaintiffs prior to the filing of Plaintiffs' complaint verifies Prompt Logistics' assertion of this defense and demonstrates good cause to set aside the defaults. Specifically, on January 8, 2013, Dora Freedman, the Office Manager for Prompt Logistics (Canada), sent a letter to Plaintiffs' counsel advising that
Prompt Logistics has no involvement in this incident as this was not our vehicle or load. Kindly address any issues and correspondence regading [sic] Kreilkamp Trucking, Inc/Eddie Courtney, Jr. & Freightlion Logistics LLC directly with Freightlion Logistics. Freightlion Logistics has contacted their insurance company who is handling this matter.
(See ECF No. 45–3 at 2). Thus, while Prompt Logistics have only minimally asserted a defense, their assertion that they believe they are not proper defendants is, on its face, a meritorious defense, which the Court finds weighs in favor of setting aside the defaults.
Plaintiffs argue that Prompt Logistics have not asserted a meritorious defense. Even if the Court were to accept this argument, this Court has previously noted that "[i]n cases where default judgment has not been entered, courts in this circuit seem unwilling to deny the motion to set aside entry of default solely on the basis that no meritorious defense exists." Conference Archives, Inc. v. Sound Images, Inc., No. 3:06–cv–76, 2007 WL 870116 (W.D.Pa. Mar.20, 2007) (quoting Mike Rosen & Assocs., P.C. v. Omega Builders, 940 F.Supp. 115, 121 (E.D.Pa.1996)).
2. Prejudice
Plaintiffs argue that they will suffer prejudice if the Court sets aside the entry of default. "Prejudice arises where the setting aside of the entry of default results in the loss of relevant evidence or some other occurrence that tends to impair the plaintiff's ability to pursue the claim." Momah v. Albert Einstein Med. Ctr., 161 F.R.D. 304, 307 (E.D.Pa.1995) (citing Emcasco, 834 F.2d at 74).
According to Plaintiffs, Prompt Logistics' dilatory actions have significantly delayed this case from moving forward. Plaintiffs explain that, if the Court were to set aside the default and grant Prompt Logistics leave to file a response, then Plaintiffs might lose the opportunity to litigate all of its claims under the applicable statute of limitations. Plaintiffs explain in their brief that the applicable statute of limitations will expire on August 2, 2014. (ECF No. 45 at 16).
*4 Despite Plaintiffs' argument that the applicable statute of limitations deadline is fast approaching, Plaintiffs have failed to identify any actual prejudice that will result because of Prompt Logistics' dilatory conduct if the Court sets aside the entries of default. Instead, Plaintiffs have only identified the possibility of prejudice at some future time. As will be discussed below, other measures less drastic than default are available to ensure that Plaintiffs do not suffer the alleged prejudice. Thus, this factor weighs in favor of setting aside the defaults.
3. Culpable Conduct
The next factor requires the Court to consider whether Defendants' failure to timely answer was culpable. Gross v. Stereo Component Sys., Inc., 700 F.2d 120, 123 (3d Cir.1983). "For the purposes of Rule 55, culpable conduct is dilatory behavior that is willful or in bad faith." Scholz Design, 2011 WL 635277, *5 (citations omitted); see also Momah v. Albert Einstein Med. Ctr., 161 F.R.D. 304, 308 (E.D.Pa.1995) ("To be 'culpable,' the conduct leading to the entry of default must have been willful, intentional, reckless or in bad faith. More than mere negligence is required.").
Plaintiffs assert that Prompt Logistics' dilatory conduct was culpable. Specifically, several months before the complaint was filed, Plaintiffs notified Prompt Logistics that Plaintiffs were contemplating litigation against them. Prompt Logistics responded, stating that they had nothing to do with the events underlying the litigation. Plaintiffs argue that this response shows that Prompt Logistics were on notice of the pending litigation, and that they had ample time to determine whether or not they were proper defendants. Plaintiffs also note that it was not until after Plaintiffs had moved for the entry of default that Prompt Logistics finally took action in this case.
Nevertheless, the Court finds that, while Prompt Logistics' explanation for their failure to timely answer may demonstrate negligence that had a dilatory result, it does not demonstrate willful intent or bad faith. Dizzley v. Friends Rehab. Program, Inc., 202 F.R.D. 146, 148 (E.D.Pa.2001). Prompt Logistics have provided a valid explanation for the delay, and that explanation is sufficient to convince the Court that they did not engage in any culpable conduct. Because there does not appear to be any willful intent or bad faith, this factor weighs in favor of setting aside the entry of default.
4. Other Available Sanctions
The Court must also consider whether sanctions other than default can adequately redress the Defendants' dilatory conduct. "The alternative sanctions factor is motivated by the court's recognition that default is a harsh sanction and that lesser sanctions may adequately deter bad conduct while allowing cases to be decided on their merits." Nat'l Specialty Ins. Co. v. Papa, No. 11–cv–2798, 2012 WL 868944, *6 (D.N.J. Mar.14, 2012) (citing Emcasco, 834 F.2d at 73). Typically, monetary sanctions, such as the imposition of attorney's fees and costs, are imposed to serve as a "wake-up call." See Conference Archives, Inc. v. Sound Images, Inc., No. 3:06–cv–76, 2007 WL 870116, *4 (W.D.Pa. Mar.20, 2007); Jackson v. Delaware Cnty., 211 F.R.D. 282, 285 (E.D.Pa.2002).
*5 Here, the Court will set aside the default and allow the claims against Prompt Logistics to proceed on the merits. The Court will not impose monetary sanctions because Prompt Logistics' dilatory conduct was not culpable and because Prompt Logistics moved to set aside the default almost immediately after the default was entered. Thus, monetary sanctions are not necessary. See Jackson, 211 F.R.D. at 285.; Tecmarine Lines, Inc. v. CSX Intermodal, Inc., No. 01–cv–1658, 2001 WL 950155, *4 (E.D.Pa. Aug.13, 2001).
However, to ensure that this case moves forward in a just and reasonable fashion and to minimize the possibility of prejudice to Plaintiffs, the Court will limit Prompt Logistics' opportunity to respond to the complaint. Specifically, Prompt Logistics must answer the complaint within ten (10) days of the filing of this memorandum and order, and the Court will not grant Prompt Logistics any additional extensions of time. Furthermore, if Prompt Logistics engage in other dilatory conduct causing further delay, they risk the imposition of more serious sanctions, such as monetary sanctions or a default judgment.
After careful consideration of the relevant factors, the Court finds that the entry of default against the Prompt Logistics Defendants should be set aside pursuant to Rule 55(c). In particular, the Court is mindful of the preference in the Third Circuit for resolving claims on the merits. Here, Prompt Logistics have demonstrated good cause for setting aside the default. Also important is that the default at issue was administratively entered by the clerk, requiring a liberal standard in favor of setting aside the entry of default. Schartner v. Copeland, 59 F.R.D. 653, 656 (M.D.Pa.1973) aff'd, 487 F.2d 1395 (3d Cir.1973) ("Where default has been entered, but default judgment not yet granted, an even more liberal standard is applied to a motion to set aside the entry of default.").
Nevertheless, the Court does not condone Prompt Logistics failure to comply with the pleading deadlines, nor does the Court overlook the fact that Prompt Logistics' actions have delayed this case, potentially jeopardizing Plaintiffs' pursuit of certain claims. Accordingly, the Court will lift the entries of default, but will limit the time in which Prompt Logistics' may respond to the complaint.
B. Prompt Logistics' motion for extension of time to file answer
Prompt Logistics have moved for an extension of time to file their answer to Plaintiffs' complaint. (ECF No. 28). Because the Court grants Prompt Logistics' motions to set aside the defaults for the reasons explained above, the Court will also grant Prompt Logistics' motion for extension of time to file an answer, but will limit the time within which to respond.
C. Prompt Logistics' motion for leave to file reply
On March 14, 2014, Prompt Logistics filed a motion for leave to file a reply brief (ECF No. 46), which Plaintiffs opposed (ECF No. 47). The Court will deny Prompt Logistics' motion as moot.
VI. CONCLUSION
*6 In sum, Prompt Logistics have asserted a facially meritorious defense, Plaintiffs have not sufficiently demonstrated any actual prejudice resulting from Prompt Logistics' delay, Prompt Logistics' conduct does not rise to the level of culpable conduct, and the delay can be adequately remedied by means other than the entry of default. While the Court does not condone Prompt Logistics' dilatory conduct, in the interests of justice and for the reasons explained above, this case should proceed on the merits. Accordingly, the Court will grant Prompt Logistics' motions to set aside the defaults and will grant Prompt Logistics' motion for an extension of time to answer the complaint. An appropriate order follows.
AND NOW, this 19th day of May 2014, for the reasons set forth in the attached memorandum,
IT IS HEREBY ORDERED that Prompt Logistics' motions to set aside default as to Prompt Logistics (USA) (ECF No. 30) and PromptLogistics (Canada) (ECF No. 34) are GRANTED and the entries of default are set aside pursuant to Fed.R.Civ.P. 55(c).
IT IS FURTHER ORDERED that Prompt Logistics' motion for extension of time to file an answer (ECF No. 28) is GRANTED. Both Prompt Logistics (USA) and Prompt Logistics (Canada) shall file an answer within ten (10) days of the date of this Order.
IT IS FINALLY ORDERED that Prompt Logistics' motion for leave to file a reply brief (ECF No. 46) is DENIED as moot.


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At Castle Danger Brewery, we welcome beer-centered events. Please keep in mind that we are a production brewery and taproom first. We will not close the main taproom to a private party on any day that we are normally open to the public. Our Taproom has two spaces available for private events.
CDB offers a variety of beers based on the season. Beer pricing is the same as during our regular taproom hours: $3.50 for 11oz pour, $5.50 for 18oz pour, specialty beer prices vary. Guests may pay with cash or credit card, or you may choose to host all beverages. We also offer draft root beer, canned pop, juice and water. MN State Law states that we may only sell beer we produce; there can be no liquor, wine or beer produced by other breweries. No outside beverages are allowed with the exception of coffee.
We have partnered with these local restaurants to provide your guests with great food: Vanilla Bean Catering, Blackwood's Catering, Louise's Place, Carmody 61, North Shore Pizza Cafe and Do North Pizza. You must notify CDB of all food arrangements.
Fill out the CDB Party Room Rental Request Form and submit it at least 4 weeks prior to your requested event date. If your request is approved, a contract will be sent to finalize your reservation. No rental is complete until CDB receives the signed contract and rental fee.


The aim of the presented research is to elaborate a traffic-responsive optimal signal split algorithm taking uncertainty into account. The traffic control objective is to minimize the weighted link queue lengths within an urban network area. The control problem is formulated in a centralized rolling-horizon fashion in which unknown but bounded demand and queue uncertainty influences the prediction. An efficient constrained minimax optimization is suggested to obtain the green time combination, which minimizes the objective function when worst case uncertainty appears. As an illustrative example, a simulation study is carried out to demonstrate the effectiveness and computational feasibility of the robust predictive approach. By using real-world traffic data and microscopic traffic simulator, the proposed robust signal split algorithm is analyzed and compared with well-tuned fixed-time signal timing and to nominal predictive solutions under different traffic conditions.


Northwest National Real Estate: Sold! Cute 1 Bedroom Cabin!
Sold! Cute 1 Bedroom Cabin!
Nice 1 bedroom, 1 bath log cabin on Twin Lakes set up for year around living! Kootenai water, deck, deep frontage, no wake zone, lawn and beach area. This is a Fannie Mae HomePath property. Buyer or Buyers Agent to confirm all MLS data. Contact office for more information. Priced at $154,000.


Released 27.11.2006, limited edition of 61 copies in handpainted sleeves, features an insert, sold out.
ghosts brâmes of the cerf are jacob garet and florian tositti and they play theremin, oldcrock, guitars, harmonica, effects, percussions, flutes - songs are played and recorded during different live sessions, july and august 2006 in france.
"Ghosts Brâmes of the Cerf is the French duo of Jacob Garet and Florian Tositti (of The Reggaee) and their music often feels like an alienated branch that might have grown apart from the Jewelled Antler Collective. They have already released one 3" cdr on Rural Faune (as Ghosts Brâmes of the Cerf's Magickal, mind you!) and their next full-length is due out soon on Foxglove.
From the very first seconds, I was hooked by the atmosphere that the duo is able to conjure up with so little. First, there is a clearly audible hiss which gives the acoustic space a certain density. The sound has a somewhat lo-fi quality as well. Soon, a few percussion instruments enter the picture while remaining in the background; then, some very subtle gong and cymbal work starts to struggle with the soft hissing noise as lower-frequency sounds gradually spin their webs around the listener.
That first track "Atonal Compass" gives us the tone. an idea of the colours the duo is going to explore and there is much more to Ghost Brâmes than just a simple nod to Thuja or AMM, for that matter.
What I found really striking, for instance, is the sense of freedom that exudes from every sound-gesture made by the duo. Consequently, each element may contribute to the direction of a piece, whether it is a faint, continuous clatter or a fragile loop of whistle-drone. In my opinion, this approach is not unlike the one that has been perfected by Fursaxa over the years. Not only does the music display a highly hypnotic quality, but it is able to find its own form as more and more elements are carefully added/ subtracted to its overall sound.
Thus, from the second track onwards (the aptly-named "The Air Is Music"), the duo begins what can be rightfully termed a "minimal" epic as there's an (almost) uninterrupted flow of music until the very end (although some tracks have been distinguished to delimitate specific sections).
On the third track, the distant whistling rapidly gives way to a delicate duo of electric guitars which complement each other in a very sparse way - while one of them keeps on repeating two notes (which reminded me of the music of Gart & Seekatze), some discreet metallic overtones are meticulously extracted from the other one.
As we're getting to the fourth track (there are 7 tracks overall), we realize that a richly-textured drone has been sculpted out before our ears without our having even noticed. This has been made possible through the aforementioned layering of sounds, but a variety of effects has also been applied with great impact to instruments such as the theremin, a harmonica or even a flute. Then, as one of the guitars decides to delineate a new melodic line, this floating, harmonium-like drone is quickly assaulted from all sides by a series of rather abstract noises which become slightly more prominent on tracks 4 and 5.
Far from saturating the space with a surge of ascending noise on the overused tension/ release model, the fifth track unravels new (melodic) colours that had previously been hidden from within the fabric of the piece(s). By the time the music starts to fade out (track 6), it has reached such a level of restrained intensity that its dense, yet monolithic nature may make you feel a little dizzy once it actually comes to an end!
Like the first introductory piece, the last track is (somewhat) isolated from the rest and seems to try and bring the sounds back to earth (sort of). Here, an elusive melody played on a flute (with reverbs) is accompanied by a soft, yet constant hitting of cymbals and the distant pounding of other percussive instruments. It all ends in a hiss - with the exact same sound that actually opened the cdr.
Wow. once the music stops, there is no doubt that you've been taken on one hell of a ride - the performance/gestures being the true guides here and this despite the fact that every section has been carefully laid out to form one continuous whole (the tracks were all recorded during different live sessions in July and August 2006).
"Le label CD-R finlandais réputé pour sa constance dans la pertinence de ses choix, accueillait en novembre dernier Ghost Brâmes of the Cerf (Florian Tositti et Jacob Garet). Pour fans avisés de 23 Productions ou du collectif Jewelled Antler (peut-être en plus "lumineux"), ce duo angevin explore couches lo-fi et superpositions improvisées (à base de guitares, theremin, flûte, harmonica, percussions...).


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1,696,382 views | Victor Rios • TED Talks Live
Help for kids the education system ignores
Define students by what they contribute, not what they lack -- especially those with difficult upbringings, says educator Victor Rios. Interweaved with his personal tale of perseverance as an inner-city youth, Rios identifies three straightforward strategies to shift attitudes in education and calls for fellow educators to see "at-risk" students as "at-promise" individuals brimming with resilience, character and grit.
Donate to Dignity in Schools, an organization that challenges the systemic problem of pushout in our nation's schools and works to dismantle the school-to-prison pipeline.
Volunteer with CURYJ (Communities United for Restorative Youth Justice), an organization that promotes initiatives aimed at restoring young people's dignity and well-being.
Victor Rios
Educator, author
Victor Rios seeks to uncover how to best support the lives of young people who experience poverty, stigma and social exclusion.
Victor Rios's resource list
Vajra Watson | Routledge, 2011 | Book
Learning to Liberate
Vajra Watson presents compelling community-based approaches to school reform. Drawing on over three years of ethnographic research, Vajra Watson explores the complicated process of reaching and teaching today's students. She reveals how four nontraditional educators successfully empower young people who have repeatedly been left behind. Watson provides key strategies for educators to utilize as they work with at-promise students.
Wayne Au | Rethinking Schools, 2014 | Book
Rethinking Multicultural Education
This volume includes incredible articles dealing with race and culture in the classroom. Moving beyond a simplistic focus on heroes and holidays, and foods and festivals, it demonstrates a powerful vision of anti-racist, social justice education. Practical, rich in story, and analytically sharp, Rethinking Multicultural Education reclaims multicultural education as part of a larger struggle for justice and against racism, colonization, and cultural oppression in schools and society.
Lis Delpit | The New Press, 2006 | Book
Other People's Children: Cultural Conflict in the Classroom
Lisa Delpit develops ideas about ways teachers can be better "cultural transmitters" in the classroom, where prejudice, stereotypes, and cultural assumptions breed ineffective education. Delpit suggests that many academic problems attributed to children of color are actually the result of miscommunication, as primarily white teachers and "other people's children" struggle with the imbalance of power and the dynamics plaguing our system.
Angela Maier and Amy Sandvold | Routledge, 2010 | Book
The Passion-Driven Classroom: A Framework for Teaching and Learning
The authors want to turn the conversation about the achievement gap into a conversation about how increasing passion in the classroom can create transformative change in students' lives.
A. Wade Boykin & Pedro Noguera | Association for Supervision & Curriculum Development, 2011 | Book
Creating the Opportunity to Learn: Moving from Research to Practice to Close the Achievement Gap
Boykin and Noguera maintain that it is possible to close the achievement gap by abandoning failed strategies, learning from successful schools, and simply doing more of what the research shows is most effective. Success is founded on equity, but equity involves more than simply ensuring students have equal access to education; equity also entails a focus on outcomes and results.
bell hooks | Routledge, 1994 | Book
Teaching to Transgress
Hooks writes about a new kind of education, education as the practice of freedom. Teaching students to "transgress" against racial, sexual, and class boundaries in order to achieve the gift of freedom is, for hooks, the teacher's most important goal.
Trevor Gardner | Rowman & Littlefield Publishers, 2016 | Book
Discipline Over Punishment
Gardner demonstrates the transformative potential of restorative discipline practices in schools, ranging from the micro-level of one-on-one interactions with students to the macro-level of re-routing the school-to-prison pipeline and improving life outcomes for young people. Gardner, who continues to teach high school in Oakland, Ca, has spent nearly 20 years innovating, struggling, and succeeding to implement various restorative justice practices in classrooms and schools around the Bay Area. Using classrooms and schools where he has taught and students, families and educators with whom he has worked, Gardner examines how restorative justice, as a set of beliefs and practices can be a force for justice and equity in our classrooms, schools, and beyond.
| Watch
Gang Member-Turned-Ph.D. Mentors Youth on the Fringes
PBS News Hour produced a piece on Victor's story and the work he does with young people
| Listen
From Gangland To The Ivory Tower
NPR's On Point produced a show centered on Dr. Rios' work.
Lou Fancher | Mercury News | Article
"Teachers can make huge difference in creating peaceful classrooms, productive young lives"
The Mercury News discusses Victor's work with Educators

redpajama_set_name: RedPajamaCommonCrawl


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An angry teenager commits a series of horrific murders, unaware that he is being tracked by a family who takes a special interest in serial killers.
WRITTEN BY: Shiva Rodriguez, D Duckie Rodriguez
DIRECTED BY: Shiva Rodriguez
TIME: 16 minutes.
Archieved Review
For the majority of people, murder is a scary thing. What could be worse? You're dead. However, the thought of being captured and helpless, totally at the mercy of someone else who happens to be a murderer, is far worse. Knowing that should this person decide to hurt you or end your life, they have no problems doing so, and probably will... that's the closest to hell on earth I can think of. It's also the stuff good thrillers and horror films thrive on. Tapping into that fear all of us have. Our need to continue on. Since the start of time, the educated and slightly off-kilter people of the world have tried to understand what drives people to commit such acts. Or, more to the point, the stress a person must endure before finally making the decision to kill. If any stress is needed at all. Are some just hard-wired to want to inflict pain and suffering? How much does "notoriety" play a role within the budding mind of a serial killer? At first, "Coming Home" plays like a standard horror film revolving around a new murderer, and the people tracking him. We all know the type of movie. Bad guy Vs good guy. Bad guy kills, and the film attempts to really make you hate them, bringing that much more pleasure once he's finally caught. Good guy(s) tracks the killer(s), always a seeming step behind until the final climax. Of course, the good movies make you understand and sometimes even -gasp- relate or empathize with the killer. This isn't a required element in horror films however, we just want to see a good showdown. The main difference with "Coming Home" is with the hunters themselves. This man, err, family isn't hunting this films leading baddie for the reasons you may think. Something far more sinister is going on. Writers Shiva and D. Duckie Rodriguez make damn sure we realize things are not on the up-and-up. In all honesty? A real twist on the genre manages to infuse itself into this title, and it's always nice to see a fresh take on an old premise. What's even nicer is the potential these characters have to do some real emotional damage down the road, within the planned feature length film that continues this story. If and when such a film materializes, it could be something really special. In a dark and dirty kind of way.
The production work, pre to post, is really a mixed bag. On one hand we have some excellent cinematography and audio recordings. Shots are nicely framed and the lighting seems perfect. I realize a lot of these shots make excellent use of natural light, but that only reflects better on the cinematographer. Some of the editing itself is where things feel a little awkward at times. Not always. For the most part the edit does an excellent job keeping the pace moving along quickly and steadily. Other times however, just feel... unusual. One example would be a strange, super fast cut of a young victim being stabbed. This particular edit stood out like a sore thumb. A better bet, in my humble opinion, would have been to simply remain on the "person doing the stabbing" and not use a super fast reaction cut of the girl. Sometimes, you just got to go with the flow - and this lightning fast cut simply didn't work for me. A few instances such as this exist within the movie, but in reality, too few to make it a real huge deal.
My other main concern is with some of the acting. Or, maybe it's not the acting at all... rather some of the dialog writing. I only bring this up because in many scenes the characters in this film come across damn near perfect. In other, less frequent scenes, the cast feel wooden. Yet it's all in what they are saying, not so much how they are saying it. "Coming Home" features a lot of "robotic" dialog. Unusually long sentences and a slight lack of contractions make for some weird sounding lines at times. Us humans use contractions a lot. We also tend to keep our dialog as short as needed when talking with each other. Especially if we know that person. Having constant full sentences with little use of contractions feels weird. As does repeated use of a persons first name when talking with them. With that said however, the overall acting, minus a few long sounding lines, was spot on. I especially loved the way our "baddie" was portrayed - as well as a certain "son" within a family. Completely Creepy Mc Creeperson. Nice job.
As a full film, "Coming Home" manages to get it's point across in a decent, entertaining way. It's a fresh take on so many movies we've all seen in the past... and that "freshness" was welcomed in a huge way. The real kicker here? This is the set-up to a larger production and it does it's job perfectly. I personally look forward to seeing the bigger story unravel. I can't wait actually. Director Shiva Rodriguez sets out to entertain... and entertained I was. "Coming Home" could be the start of an exceptional story. I can't wait to see how it all turns out.
Turnabout Review.
The Jigsaw Review.
Handjob Review.


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Steve Corkran
Report: Raiders offensive coordinator Greg Olson to interview with Jaguars
January 14, 2015 at 11:26 a.m.
Greg Olson remains under contract with the Raiders through the 2015 season. However, he has been granted permission to interview with the Jacksonville Jaguars for their offensive coordinator vacancy, according...
Elway confirms Broncos' interest in Del Rio
Denver Broncos defensive coordinator Jack Del Rio is being interviewed by the Raiders for their head coaching vacancy Tuesday. As it turns out, the Raiders aren't the only team interested...
Cleveland Browns ask to interview two Raiders assistants
January 10, 2015 at 10:28 p.m.
The Cleveland Browns on Saturday requested permission from the Raiders so that they can interview assistant coaches Al Saunders and John DeFilippo for their offensive coordinator vacancy.The Browns have an...
Policy with some pointed words for York
January 9, 2015 at 5:39 p.m.
Carmen Policy, who played a pivotal role for the 49ers during their sustained success in the 80s and 90s, said Wednesday that current 49ers CEO Jed York is going through...
Former 49ers exec Policy has pointed words for Jed York
Carmen Policy, who played a pivotal role for the 49ers during their sustained success in the 1980s and '90s, said Wednesday that current 49ers CEO Jed York is going through...
Report: 49ers' Colin Kaepernick to train with Kurt Warner
Colin Kaepernick had one of his best games for the 49ers this season when he played against the Arizona Cardinals on the road. Now he's returning to the desert in...
Kaepernick treks to desert for guidance from Super Bowl MVP
January 9, 2015 at 8:53 a.m.
Colin Kaepernick had one of his best games for the 49ers this season when he played against the Arizona Cardinals on the road. Now he s returning to the desert...
Report: Michigan reps to meet with Harbaugh
SANTA CLARA -- While the pursuit of Jim Harbaugh reportedly heats up with the Raiders and University of Michigan, the current 49ers coach wasn't tipping his hand Friday on how...
No hint of nostalgia for 49ers' Harbaugh
SANTA CLARA -- The 49ers' regular-season finale against the Arizona Cardinals might be the final game in coach Jim Harbaugh's 49ers tenure. If so, he isn't letting on or getting...
Harbaugh keeps focus on players as regular-season finale approaches
The49ers regular-season finale against the Arizona Cardinals might be the final game in head coach Jim Harbaugh s 49ers tenure. If so, he isn t letting on or getting nostalgic.Instead,...


Shop InStyle's roundup of the best brown accessories for fall 2016.
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Invisible Frisbee Productions is founded on the idea that Orlando does not need someone to build a multi-million dollar facility in order to magically transform us into a "first-class city". By pursuing our passion and sharing it with others, we can transform this city in the eyes of the world - and the thousands who transplant here every year. Instead of being the Next Hollywood or the Next Silicon Valley, we want to help in creating the First Orlando.
To find and encourage environments for innovation and unexpected interaction between likeminded technologists, artists and arts organizations.


One of my favorite creative kids activities is having a birthday! Kiwi Co. is celebrating their birthday by offering a super deal to new subscribers.
We've been receiving Koala and Kiwi crates for a while now and the kids just LOVE them. The projects are awesome, and the time we spend together making the projects is priceless.
We have gotten some really amazing activities in our KiwiCo boxes. One time the girls got detective kits complete with "invisible ink" pens and paper and a special detective suitcase to hold all their super secret notes. Johnny got a Koala box all about rainbows, where he made an adorable fluffy cloud pillow and a tie-die looking rainbow print tote bag. The activities always come with an activity booklet, full of kid-friendly science information and puzzles. So the fun continues after building the craft in the kit!
We made Johnny's camping kit shortly before our family's summer camping trip. His pretend hot dog and marshmallows roasted over a little foam campfire. He was already a s'mores-making professional by the time we got to our campsite! And how cute is this little bear backpack? He wore it everywhere he went!
We first started getting KiwiCo boxes as a gift from the kids' grandma. It is such a thoughtful way to give quality time and learning experiences to a family. John and I get to work one-on-one making the craft with a child. That individual attention our children receive as we create together is so special to them. We're not only building a project, we're building memories.
For just a few days only, KiwiCo is offering 3 free months when you sign up for a 12-month subscription. Just enter the code BDAY at checkout to access the special savings!
Use the link below to get your 3 free months. This is the best deal they have offered all year, so you're going to want to jump on it!


Luxurious bedrooms are not just a place to sleep. The bedroom also you can use to serve where you can relax at the end of your busy day. If you are looking for a reference to redecorate your bedroom, bedroom decorating ideas may be following your own inspiration. Choose a relaxing color scheme. Whether it's soft pastel colors, or the ceiling design in neutral colors, the color scheme should be soothing. Buying quality beds. If you will be shopping for one piece in the bedroom should be comfortable, high quality beds will ensure that you enjoy your sleep time. Also, high-quality beds will maintain the comfort, colors, and shapes, so that your investment will be well worth it.
Using a combination of colors on all parts of the room and determine the furniture to be used. Typically, rooms are not too extensive. In fact, smaller than some of the main room in our house. This is reasonable because the luxury bedroom is only used to welcome guests who stay in our home. Of course we will also be confusion if we make room for a larger size. In fact, a guest bedroom that is too big can also be our problem when we do the regular cleaning.
we just use the room as a welcome luxurious bedrooms. The combination of colors that we can use as it gives the impression of comfort through a color that is not too flashy. Simply combine some neutral colors and comfortable in some parts of the room. In addition we can also use some of the furniture will be placed in the bedroom.
If your partner is not comfortable with the application of the color black as the base color of the room, you can make white as the base color on the walls, ceilings, frames or doors and windows. While the black color you can apply on the bed you sleep, or furniture in the room, so it will create more luxurious bedrooms warm, luxurious and elegant.
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File Viewer Plus Free Download Latest Version for Windows. It is full offline installer standalone setup of File Viewer Plus 2.2.2.48.
File Viewer Plus is a very handy and versatile file viewer that supports a wide variety of formats. This application offers very powerful editing features plus it has got a batch converter as well. This application provides you as an alternative as it has been developed to function as a universal file management solution. It offers support for hundreds of formats plus it also helps you to edit your files. You can also download FileMaker Pro for Mac.
File Viewer Plus allows you to open PDF files, MS Word documents, MS Excel spreadsheets and media files which are saved to some of the most famous formats, Windows cabinet files, ZIP archives and Android packages. You can edit many files and you can crop images and can perform various different adjustments. This application is for those who are required to convert their images, documents videos or song to various other formats. You can also create conversion presets and you can also use them later whenever you perform same job again. It has got a simple user interface with a smart layout which can be changed by hiding the File Information panel, toolbar or status bar. All in all File Viewer Plus is a very handy and versatile file viewer that supports a wide variety of formats.
Below are some noticeable features which you'll experience after File Viewer Plus free download.
A very handy and versatile file viewer that supports a wide variety of formats.
Offers very powerful editing features plus it has got a batch converter as well.
Provides you as an alternative as it has been developed to function as a universal file management solution.
Offers support for hundreds of formats plus it also helps you to edit your files.
Allows you to open PDF files, MS Word documents, MS Excel spreadsheets and media files which are saved to some of the most famous formats, Windows cabinet files, ZIP archives and Android packages.
Can edit many files and you can crop images and can perform various different adjustments.
Before you start File Viewer Plus free download, make sure your PC meets minimum system requirements.
Click on below button to start File Viewer Plus Free Download. This is complete offline installer and standalone setup for File Viewer Plus. This would be compatible with both 32 bit and 64 bit windows.