MOTOR CARRIERS (CONTRACT) / After truckload stolen at repair facility freight broker contractually on the hook for any theft loss brings third party complaint against truck repair facility – (1) Held by court: Contract count dismissed because no agreement pled as between broker and repair facility; (2) Observed by court: Perhaps freight broker “intends to state a negligence claim” of some kind not abolished by the Illinois Contribution Act – so court grants leave to plead again.

Where truckload was stolen while truck rig was being repaired. Shipper’s subrogated insurer sued freight broker on its contract with shipper to pay “full actual loss” for any theft of load. Freight broker brings third party complaint against repair facility for amount of theft loss. Held: Third party complaint dismissed without prejudice because freight broker, “has not pled any contractual agreement or relationship between [repair facility] and [freight broker] or other facts stating a facially plausible claim for indemnity”. Observed: “Perhaps, despite … some of the wording of the third-party complaint, [freight broker] intends to state a negligence claim against [repair facility] or some other cause of action” that was not abolished by the Illinois Contribution Act (740 ILCS 100 / 2 (b).

Zurich American Insurance Co. v. LCG Logistics, LLC, Slip copy, 2013 WL 675896 (U.S. District Court for the Southern District of Illinois, February 24, 2013). Free copy available here.

“Clearly, though, LCG has not pled any contractual agreement or relationship between TCI and LCG or other facts stating a facially plausible claim for indemnity as currently presented in Count II of the third-party complaint (as well as paragraph 13, paragraph 17, and the prayer for relief). Perhaps, despite the label on Count II and some of the wording of the third-party complaint, LCG intends to state a negligence claim against TCI or some other cause of action in Count II. The Court cannot discern that from the record now before it. Rule 12(f) striking is not appropriate in this case; the references to indemnity are not redundant, immaterial, impertinent, or scandalous. The most prudent course of action is to dismiss the entire third-party complaint and allow LCG an opportunity to amend it.”