Zurich American Ins. Co. v. LCG Logistics, LLC, et al., 2013 WL 675896 (S. D. Ill. 2013)

Shipper Eddie Bauer Fulfillment Services booked a load of blue jeans with broker LCG Logistics, which in turn placed the freight with carrier Universal Carries for transport from Texas to Ohio. Universal’s truck broke down in Illinois, and its driver took the combo to Truck Centers, Inc. (TCI) for repairs. The cargo disappeared from TCI’s facility.

The shipper’s subrogated insurer sued LCG and Universal in the U.S. District Court for the Southern District of Illinois, and LCG impleaded TCI in a thirdparty action alleging that it failed to safely secure the freight, such that it should be liable for indemnity for any judgment LCG might have. LCG’s theory was that TCI was “actively negligent” in causing the loss, but it failed to state any factual allegations supporting that theory.

Like with most states, Illinois’ conversion from a contributory to comparative fault state, wherein percentages of fault are ascribed to two or more tortfeasors representing the extent of their responsibility for a claimant’s loss, has rendered the active-passive negligence dichotomy irrelevant for indemnity purposes. Thus, the third-party complaint fails to state a claim as written. Fortunately for LCG, the court allowed it to re-plead its third-party complaint correctly.