Lexington Insurance Company v. Horace Mann Insurance Company , 861 F.3d 661 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-2352
LEXINGTON INSURANCE COMPANY,
Plaintiff/Counter-Defendant-Appellee,
v.
HORACE MANN INSURANCE COMPANY,
Defendant/Counter-Plaintiff/Third-Party Plaintiff-Appellant,
v.
AON RISK INSURANCE SERVICES WEST, INC.,
Third-Party Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 CV 2352 — Charles R. Norgle, Judge.
____________________
ARGUED DECEMBER 7, 2016 — DECIDED JUNE 29, 2017
____________________
Before BAUER and FLAUM, Circuit Judges, and SHADID, Dis-
trict Judge. *
* Of the Central District of Illinois, sitting by designation.
2 No. 16-2352
FLAUM, Circuit Judge. Christopher Drake was involved in a
car accident with another driver, who offered to settle the
matter with Drake’s automobile insurer, Horace Mann Insur-
ance Company. The offer expired before Horace Mann ac-
cepted it, however, and the driver sued Drake and sent a letter
to Drake’s lawyer suggesting that Horace Mann had handled
the matter in bad faith. Believing that this letter constituted a
“claim” against Horace Mann for extra-contractual dam-
ages—and that this “claim” had accrued before the start date
of Horace Mann’s own insurance policy with Lexington Insur-
ance Company—Lexington sought a judicial declaration that
it had no duty to indemnify Horace Mann under that policy.
Horace Mann counterclaimed for breach of contract and de-
claratory judgment, and requested (pursuant to an Illinois
statute) additional damages for “vexatious and unreasona-
ble” claims-handling. Horace Mann also filed a third-party
complaint against its insurance broker, Aon Risk Insurance
Services West, for negligence in reporting the extra-contrac-
tual “claim” to Lexington. The district court resolved Lexing-
ton’s complaint, in Horace Mann’s favor, at summary judg-
ment, but awarded judgment to Lexington and Aon on Hor-
ace Mann’s claims under Federal Rule of Civil Procedure
50(a). Horace Mann appeals the Rule 50(a) decisions, and for
the following reasons, we affirm.
I. Background
A. The Litigation Against Drake
In May 2008, Christopher Drake’s truck collided with Jo-
seph Burley’s motorcycle in Tampa, Florida. Burley was seri-
ously injured in the crash, and the following month, Burley’s
lawyer sent a letter to Drake’s insurer, Horace Mann, in which
Burley offered to settle his claims against Drake for $25,000
No. 16-2352 3
(the limit of Drake’s insurance policy). The letter stated that
Burley’s offer would remain open for twenty days. Horace
Mann responded that it could not make any payments until it
had received Burley’s medical records, but as Burley’s lawyer
did not provide those records, the twenty-day window closed
without a settlement.
In August 2008, Burley’s attorney sent a follow-up letter to
Horace Mann, notifying the insurance company that Burley
was pursuing his claims against Drake in the Florida courts.
The insurer then attempted to resolve the matter by sending
to Burley’s lawyer, on multiple occasions, a check for $25,000.
Burley refused to settle, however, and he never cashed the
checks. Employees at Horace Mann began to suspect that Bur-
ley’s lawyer had been trying to set up the insurance company
for a claim of bad-faith conduct—which, if successful, could
expose the insurer to liability beyond the coverage limits of
Drake’s policy. See STEPHEN S. ASHLEY, BAD FAITH ACTIONS
LIABILITY & DAMAGES §§ 3:6, 8:3 (2d ed. 2016).
The Burley v. Drake litigation continued, and two years
later, on September 14, 2010, Burley’s lawyer sent Drake’s
counsel a letter concerning an upcoming mediation session:
We have scheduled the mediation of this
case [for later this year].…Obviously, the only
way [Drake] is going to obtain any relief from
the judgment that certainly will be obtained in
this case, is if the [insurance] carrier agrees to
acknowledge their extra-contractual exposure
and “open” their limits.
…If [the carrier has] an extra-contractual lawyer
looking into this matter, please let me know the
4 No. 16-2352
name of that person and I will deal with them
directly. If not, please relay my message that we
intend to discuss the extra-contractual aspects
of this case that, if acknowledged, would give
your client assurance of financial relief.
Drake’s attorney forwarded this letter to Horace Mann, and
Horace Mann sent to the mediation session a claims adjuster
for extra-contractual-liability claims. The claims adjuster was
authorized to offer no more than $200,000 in settlement, how-
ever, and Burley would accept no less than $8 million, so the
parties concluded the session without reaching an agreement.
B. Horace Mann’s Policy with Lexington
In August 2010, Horace Mann had in place a professional-
liability insurance policy issued by Lexington. That policy,
which had a one-year effective period beginning on Septem-
ber 28, 2009, obligated Lexington to pay Horace Mann’s losses
arising from errors committed by Horace Mann in serving its
clients. On August 20, 2010, Horace Mann e-mailed its insur-
ance broker, Aon, about notifying Lexington of the Burley lit-
igation. Aon responded:
We don’t have [a] record of this matter. Appar-
ently, [the Burley suit was] filed in 2008 …. If
that’s the case, we would have a late noticing is-
sue …. Let us know how you would like us to
proceed.
Horace Mann replied that it would like Aon to “[p]lease pro-
ceed in reporting” the matter to Lexington; but Aon stated
that it would need a copy of the Burley complaint before doing
so, and asked Horace Mann to send one over. Three days later,
on August 23, Horace Mann explained in a follow-up e-mail
No. 16-2352 5
that it was working on getting copies of the complaint, and
reiterated its request that Aon “proceed in reporting” the suit
to the insurance carrier. Aon in turn asked if it would be ac-
ceptable to notice the suit once Aon had received the com-
plaint, and Horace Mann agreed that that would be fine. Hor-
ace Mann eventually forwarded the complaint to Aon on Sep-
tember 21, once more asking that Aon submit the matter to
Lexington for review. On September 24, however, a Horace
Mann employee e-mailed Aon to indicate that she had
“d[one] a little more digging,” and that there were no “writ-
ten” extra-contractual allegations; accordingly, wrote the em-
ployee, Horace Mann “wish[ed] to withdraw this claim.” Aon
did as the employee asked, and did not submit anything to
Lexington at that time.
On December 17, 2010—two days after the unsuccessful
mediation session with Burley—Horace Mann again in-
structed Aon to provide Lexington with notice of the Burley
suit. (Lexington had in the meantime renewed Horace Mann’s
policy, which now had a one-year effective date beginning
September 28, 2010.) Aon did so, by letter, on January 11, 2011.
The January 11 letter stated that Horace Mann was giving no-
tice of a “potential” professional-liability claim based on the
Burley matter, which Horace Mann expected to give rise to an
actual “claim” against that insurance company. Attached to
the letter was a memorandum summarizing the underlying
events and prior communications between Horace Mann and
Burley’s counsel.
On February 4, 2011, a Florida jury returned a $17 million
verdict against Drake in the Burley action. Horace Mann in-
formed Lexington of the verdict, and transferred to Lexington
the Burley claim file and related documents, including the
6 No. 16-2352
September 2010 letter from Burley’s lawyer. Burley’s counsel
then sent to Horace Mann a message on March 3, 2011, in
which the attorney stated:
Following our conversation last night, I had a
chance to talk to my client about settling this
case….I told you last night that our initial offer
to settle this case would be the face value of the
judgment, or $17 million. I have confirmed that
my client is willing to negotiate from that num-
ber. [W]e should work towards doing this
within the upcoming few days.
Several days later, on March 7, the head of Horace Mann’s
claims committee telephoned Lexington’s claims adjuster and
explained that Burley’s lawyer had made an opening demand
of $17 million; according to Horace Mann, the claims adjuster
responded that $10 million or less would be “a good settle-
ment.” Lexington ultimately sent Horace Mann a reservation-
of-rights letter denying coverage, however, as in Lexington’s
view, Burley had demanded extra-contractual damages from
Horace Mann by letter dated September 14, 2010—and so
Horace Mann’s “claim” had accrued before the operative
(2010–2011) policy with Lexington had taken effect on Sep-
tember 28.1 The reservation-of-rights letter concluded with a
1 The previous year’s policy (i.e., the 2009–2010 policy) had provided
that Lexington would indemnify its insured for any “claim” that: (1) ac-
crued during the policy period; and (2) was reported to Lexington during
that same period (or within thirty days of its expiration). Should a “claim”
accrue during the last sixty days of the policy period, however, the insured
had an additional sixty days beyond the policy’s end date in which to re-
port that “claim.” If the September 14, 2010 letter from Burley’s lawyer
represented a “claim” against Horace Mann, as Lexington asserted, this
“claim” would have accrued during the last sixty days of Horace Mann’s
No. 16-2352 7
warning that Lexington planned to seek declaratory relief in
court. In the meantime, Horace Mann settled with Burley for
$7 million.
C. Procedural History
Lexington filed a declaratory-judgment action against
Horace Mann in April 2011, seeking a judicial declaration that
Lexington did not have a duty to indemnify Horace Mann for
the Burley settlement. Lexington alleged, among other things,
that there was no duty to indemnify because Horace Mann’s
“claim” for insurance coverage predated the relevant policy.
Horace Mann counterclaimed for declaratory judgment and
breach of contract, asserting that that company’s “claim” for
coverage had arisen not in 2010, but in early 2011. Horace
Mann also sought additional damages from Lexington under
215 Ill. Comp. Stat. 5/155 for “vexatious and unreasonable”
claims-handling. Horace Mann then filed a third-party com-
plaint against Aon, alleging that the insurance broker had
been negligent in providing advice about claims-reporting
generally and in failing to follow Horace Mann’s instructions
for reporting the Burley claim in particular.
In December 2012 and January 2013, respectively, Horace
Mann and Lexington filed cross-motions for (partial) sum-
mary judgment on the issues of whether the September 2010
letter from Burley’s lawyer was a “claim” under Horace
Mann’s policy, and, relatedly, whether the operative “claim”
2009–2010 policy—giving Horace Mann until November 28, 2010 (or sixty
days after the policy’s end date) to bring that “claim” to Lexington’s at-
tention. Lexington in fact heard nothing about the Burley matter until Jan-
uary 2011, however, so under Lexington’s theory, only the 2010–2011 pol-
icy could have provided any coverage.
8 No. 16-2352
had otherwise accrued before the start date of the (2010–2011)
policy. The district court agreed with Horace Mann and an-
swered “no” to both questions. Aon then moved for summary
judgment, asserting that the district court’s ruling had mooted
Horace Mann’s negligence suit against its insurance broker.
The court denied Aon’s motion as premature.
Lexington moved for summary judgment again in Decem-
ber 2015—this time on Horace Mann’s counterclaim—arguing
that Horace Mann could not prove that it had adequately no-
tified Lexington of any “claims” made against Horace Mann
in 2011. Horace Mann filed a response and cross-motion, and
Aon, too, filed a second motion for summary judgment. While
these motions were pending, the district court set a trial date
for Horace Mann’s claims, and trial began on April 12, 2016.
The claims for breach of contract, declaratory judgment, and
negligence were tried before a jury, while a bench trial was
conducted on Horace Mann’s request for additional damages
under 215 Ill. Comp. Stat. 5/155.
Before the substantive claims were submitted to the jury,
the parties filed a series of motions for judgment as a matter
of law under Federal Rule of Civil Procedure 50(a): Horace
Mann filed a motion, and Lexington a cross-motion, as to Hor-
ace Mann’s claims for breach of contract and declaratory judg-
ment; and Horace Mann filed a motion, and Aon a cross-mo-
tion, as to Horace Mann’s negligence claims against its insur-
ance broker. Curiously, Horace Mann also filed a motion as to
Lexington’s declaratory-judgment suit, despite a statement in
the parties’ proposed pretrial order agreeing that the court’s
earlier summary-judgment decision had resolved that action.
The district court excused the jury and took the motions un-
der advisement. On May 13, 2016, the court denied each of
No. 16-2352 9
Horace Mann’s Rule 50(a) motions and granted Lexington’s
and Aon’s motions as to Horace Mann’s claims. The court then
entered a separate, formal judgment, but only on Horace
Mann’s claims for breach of contract, declaratory judgment,
and negligence. (The formal judgment did not address Hor-
ace Mann’s request for additional damages under Illinois stat-
ute, or Lexington’s declaratory-judgment complaint.) Horace
Mann appeals the court’s Rule 50(a) decisions. 2
II. Discussion
A. The Insurance-Coverage Dispute
1. Horace Mann’s Claims Against Lexington
Horace Mann first appeals the denial of its Rule 50(a) mo-
tion on Horace Mann’s counterclaims for breach of contract
and declaratory judgment. A court may enter judgment as a
matter of law where an opposing party has been fully heard
on an issue at trial, and where a reasonable jury “would not
have a legally sufficient evidentiary basis to find for the party
on that issue.” Fed. R. Civ. P. 50(a)(1). In general, we review
de novo a district court’s decision under Rule 50. See Campbell
v. Miller, 499 F.3d 711, 716 (7th Cir. 2007) (citation omitted).
2 We have jurisdiction of appeals from all final decisions by the district
court. 28 U.S.C. § 1291. “The … test for determining finality under …
§ 1291 is not the adequacy of the judgment, but whether the district court
has finished with the case.” Hernandez v. Dart, 814 F.3d 836, 841 (7th Cir.
2016) (citations, internal brackets, and internal quotation marks omitted).
We are satisfied that, despite the absence of a formal judgment on the ad-
ditional-damages issue and on Lexington’s complaint, the district court
was done with each of the parties’ respective suits. The court wrote “Civil
case terminated” in the docket entry immediately preceding the separate
judgment that did issue, thus conveying that a final decision had been
reached as to all claims in the litigation.
10 No. 16-2352
Lexington argues that appellate review is in this case fore-
closed, however, because Horace Mann seeks on remand only
the entry of judgment in its favor, and Horace Mann did not
renew its motion for judgment as a matter of law under Rule
50(b).
Nothing in the text of Rule 50 expressly compels a party to
renew its motion for judgment as a matter of law after that
party’s Rule 50(a) motion has been denied. In a series of cases
beginning with Cone v. West Virginia Pulp & Paper Co., 330 U.S.
212 (1947), however, the Supreme Court has made clear that a
failure to renew may preclude the losing party from making
certain challenges on appeal. The defendant in Cone had
moved for judgment as a matter of law (at that time called a
directed verdict) under Rule 50(a), the denial of which the de-
fendant appealed after the case was submitted to the jury and
the jury returned a verdict for the other side. The appellate
court reversed and remanded with instructions to enter judg-
ment in the defendant’s favor, but the Supreme Court again
reversed, holding that the appellate court had no power to di-
rect the entry of judgment for the losing party below, because
that party had never requested the relief at issue—that is, a
judgment notwithstanding the verdict—under Rule 50(b). See
id. at 213–14, 218. 3
3 Rule 50(b) at that time provided:
Whenever a motion for a directed verdict made at the
close of all the evidence is denied or for any reason is not
granted, the court is deemed to have submitted the action
to the jury subject to a later determination of the legal
questions raised by the motion. Within 10 days after the re-
ception of a verdict, a party who has moved for a directed verdict
may move to have the verdict and any judgment entered thereon
No. 16-2352 11
The problem with the appellate court’s instructions in
Cone, said the Court, was that Rule 50(b) did not require the
district court to enter a judgment notwithstanding the ver-
dict—even if that court was otherwise “persuaded that it
[had] erred in failing to direct a verdict for the losing party.”
330 U.S. at 215. The Rule instead provided that, in the event
of such a mistake, the district court could “either order a new
trial or direct the entry of judgment as if the requested verdict
had been directed.” Id. (emphases added) (quoting Fed. R.
Civ. P. 50(b)). This either-or language gave the trial judge “an
opportunity, after all his rulings ha[d] been made …, to view
the proceedings in a perspective peculiarly available to him
alone”—and thus “a last chance to correct his own errors
without [the] hardships of an appeal.” Id. at 216 (citations
omitted); see also id. (“Determination of whether a new trial
should be granted or a judgment entered under Rule 50(b)
calls for the judgment in the first instance of the judge who
saw and heard the witnesses and has the feel of the case ….”)
(citations omitted). Consequently, in the absence of a Rule
set aside and to have judgment entered in accordance with his
motion for a directed verdict; or if a verdict was not returned
such party, within 10 days after the jury has been dis-
charged, may move for judgment in accordance with his
motion for a directed verdict. A motion for a new trial
may be joined with this motion, or a new trial may be
prayed for in the alternative. If a verdict was returned the
court may allow the judgment to stand or may reopen the judg-
ment and either order a new trial or direct the entry of judgment
as if the requested verdict had been directed. If no verdict was
returned the court may direct the entry of judgment as the
requested verdict had been directed or may order a new
trial.
Fed. R. Civ. P. 50(b) (1938) (emphases added).
12 No. 16-2352
50(b) motion, the appellate court had no authority to direct
the district court to enter a judgment “contrary to the one [al-
ready] permitted to stand.” Id. at 218.
Horace Mann argues that Cone is inapposite here, as that
case—like Rule 50(b) itself—governs only when all Rule 50(a)
motions have been denied, and in this case, Lexington’s motion
was granted. We conclude the application of Rule 50(b) is not
so limited. That Rule currently states:
If the court does not grant a motion for judg-
ment as a matter of law made under Rule 50(a),
the court is considered to have submitted the ac-
tion to the jury subject to the court’s later decid-
ing the legal questions raised by the motion. No
later than 28 days after the entry of judgment—
or if the motion addresses a jury issue not de-
cided by a verdict, no later than 28 days after the
jury was discharged—the movant may file a re-
newed motion for judgment as a matter of law
and may include an alternative or joint request
for a new trial under Rule 59. In ruling on the
renewed motion, the court may:
(1) allow judgment on the verdict, if the jury re-
turned a verdict;
(2) order a new trial; or
(3) direct the entry of judgment as a matter of
law.
Fed. R. Civ. P. 50(b) (2009). Horace Mann points to the Rule’s
opening proviso—which states that the court is considered to
have submitted an action to the jury if “the court does not grant
a motion for judgment as a matter of law made under Rule
No. 16-2352 13
50(a),” id. (emphasis added)—as limiting the application of
Rule 50(b) to only those instances in which the action has
reached the jury. This is not quite right. Rule 50(b)’s opening
clause simply clarifies that district-court judges may, in their
discretion, wait to decide Rule 50(a) motions until after the
jury has deliberated. Waiting is not required, however, and if
the district court enters judgment before the jury has received
the case, the losing party—if they, too, moved for judgment
under Rule 50(a)—has twenty-eight days in which to renew
their Rule 50(a) motion under Rule 50(b). See id. (counting
from the entry of a “judgment,” not from a post-verdict judg-
ment in particular).
In this respect, the present version of Rule 50(b) operates
in the same way as did its predecessor, which dealt with mo-
tions for directed verdicts. 4 This earlier version of the Rule—
the same version at issue in both Cone and Globe Liquor Co. v.
San Roman, 332 U.S. 571 (1948)—provided that, within ten
days of the reception of “a verdict,” a party who had moved
for a directed verdict could renew that motion and ask that
the actual verdict be replaced with a judgment in the moving
party’s favor. Fed. R. Civ. P. 50(b) (1938). The word “verdict,”
as used in this part of the Rule, was unqualified, and thus en-
compassed not only a verdict returned by the jury of its own
accord, but also a verdict directed in favor of a party’s oppo-
nent. The defendants in Globe Liquor therefore found their op-
tions limited on appeal when, after the plaintiff’s motion for a
directed verdict had been granted, the defendants neglected
4 Horace Mann even entitled its Rule 50(a) motion a “motion for di-
rected verdict,” and continued to use that label in the party’s opening brief
on appeal.
14 No. 16-2352
to renew their Rule 50(a) motion under Rule 50(b). The Su-
preme Court rejected the defendants’ argument that, because
the verdict reflected only the “specific directions of the trial
judge,” Cone was distinguishable. 332 U.S. at 573. The reason-
ing in Cone still governed, explained the Court, because, “[b]y
its terms,” Rule 50(b) applied equally to both situations. Id.
(emphasizing that, in the event of error by the district court, it
is that court that must “first pass upon whether its error
should result in a new trial or in a judgment finally ending the
controversy”).
Cone and Globe Liquor together instruct that, in order for a
party to request on appeal a judgment in their favor due to
insufficient evidence supporting the other side, the requesting
party must not only have filed a motion under Rule 50(a), but
must also have renewed that motion under Rule 50(b)—even
where, as here, the jury did not have an opportunity to delib-
erate. See also Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc.,
546 U.S. 394, 404 (2006) (“[T]he precise subject matter of a
party’s Rule 50(a) motion—namely, its entitlement to judg-
ment as a matter of law—cannot be appealed unless that mo-
tion is renewed pursuant to Rule 50(b).”). As Horace Mann
did not do this, all of its sufficiency-of-the-evidence argu-
ments against Lexington have been forfeited. 5
Unfortunately for Horace Mann, the forfeiture extends to
all of that party’s arguments against Lexington, because Hor-
ace Mann has made no attempt to disentangle from the factual
5 Citing Parke-Chapley Construction Co. v. Cherrington, 865 F.2d 907 (7th
Cir. 1989), Horace Mann argues that the appropriate mechanism for chal-
lenging a Rule 50(a) decision is not an additional motion, but an appeal.
The reliance on Parke-Chapley is misplaced. In that case we addressed the
filing of a motion under Rule 60(b), not 50(b). See 865 F.2d at 914–15.
No. 16-2352 15
issues any questions that we could otherwise review. We may,
for example, consider pure questions of law despite the ab-
sence of even a Rule 50(a) motion. See Six Star Holdings, LLC
v. City of Milwaukee, 821 F.3d 795, 804 (7th Cir. 2016) (quoting
Lawson v. Sun Microsys., Inc., 791 F.3d 754, 761 (7th Cir. 2015));
Lawson, 791 F.3d at 761–62 (reviewing, post-trial, a purely le-
gal question raised and preserved at summary judgment);
Houskins v. Sheahan, 549 F.3d 480, 488–89 (7th Cir. 2008)
(same). Indeed, as a general matter, pure questions of law
ought not to be included in a Rule 50(a) motion in the first
place, as doing so “defeat[s the] purpose [of that motion],
which is to challenge the sufficiency of the evidence.” Houskins,
549 F.3d at 489 (emphasis added) (citation omitted); see also
Belk, Inc. v. Meyer Corp., U.S., 679 F.3d 146, 161 (4th Cir. 2012)
(explaining that Rule 50 “is not concerned with … questions
of law that are detached from the evidence, not within the do-
main of the jury, and only ever properly ruled upon by the
judge”). Horace Mann has identified no such questions here,
however, and we decline to do so on Horace Mann’s behalf.
The award of judgment to Lexington on Horace Mann’s
breach-of-contract and declaratory-judgment claims thus re-
mains intact. 6
6 Horace Mann had also requested damages against Lexington under
215 Ill. Comp. Stat. 5/155, which allows judges presiding over insurance
disputes to impose additional monetary penalties on insurance companies
where it appears that the latter have engaged in “vexatious and unreason-
able” claims-handling. The district court here awarded judgment to Lex-
ington on the Section 155 issue after concluding that Lexington did not
have a duty to indemnify its insured in the first instance. Because we do
not disturb the district court’s decisions on Horace Mann’s substantive
causes of action, we likewise affirm the court’s ruling under Section 155.
16 No. 16-2352
2. Lexington’s Declaratory-Judgment Suit
The parties agreed before the trial in 2016 that the district
court’s 2013 summary-judgment order had disposed of Lex-
ington’s declaratory-judgment action. The court also barred
the parties from raising at trial any issues decided in that or-
der. Nevertheless, Horace Mann moved for judgment on Lex-
ington’s complaint under Rule 50(a), arguing that Lexington
had presented to the jury no evidence supporting its pleading.
Lexington (quite reasonably) objected to this motion as inap-
propriate, but argued in the alternative—should the court
choose to consider the motion (and thus to allow the parties
to revisit the court’s earlier summary-judgment decision)—
that the summary-judgment ruling was incorrect, and that
Lexington should be awarded judgment as a matter of law on
its declaratory-judgment claim. The district court denied Hor-
ace Mann’s Rule 50(a) motion as “sparse and underdevel-
oped,” and did not comment on Lexington’s alternative re-
quest for a judgment in its favor.
Oddly, however, both parties insist on appeal that Lexing-
ton’s motion in the alternative was somehow granted. It was
not. The district court had no occasion to reconsider—and, as
far as we can see, did not reconsider—its earlier ruling on Lex-
ington’s cause of action. Insofar as that suit is concerned, then,
we have before us only the district court’s denial of Horace
Mann’s motion under Rule 50(a). This denial was based not
on the sufficiency of the evidence, but on what the court be-
lieved was a forfeiture of Horace Mann’s sufficiency argu-
ments as inadequately developed. We affirm the district
court’s decision, but on a slightly different ground: Rule 50
was not an appropriate vehicle for Horace Mann to confirm
that Lexington’s complaint had already been dismissed. If, as
No. 16-2352 17
Lexington conceded to the district court, the earlier summary-
judgment order had disposed of all of Lexington’s claims,
there was no reason for Lexington to present evidence on
those claims at trial—and therefore no reason for Horace
Mann to challenge the sufficiency of that evidence under
Rule 50.
B. Claims Against Aon
Horace Mann’s negligence claims against its insurance
broker were the subject of cross-motions by the parties under
Rule 50(a), but as with its claims against Lexington, Horace
Mann did not renew its motion under Rule 50(b) after the dis-
trict court awarded judgment to the other side. Thus, for the
reasons discussed above, we cannot direct an entry of judg-
ment for Horace Mann on its claims against Aon. As to these
claims, however (and unlike with its claims against Lexing-
ton), Horace Mann asks in the alternative for a new trial. This
request takes us outside the bounds of Cone and Globe Liquor,
as those cases forbid the grant of a new trial only where the
appellant “seek[s] to establish their entitlement to [that] trial
solely on the basis of a denied Rule 50(a) motion.” Unitherm,
546 U.S. at 403 (emphasis added). Here, more than one motion
was filed under Rule 50(a): Horace Mann and Aon both
sought judgment as a matter of law, and Aon’s motion was
granted. Horace Mann may therefore contend that Aon’s mo-
tion should not have been granted—and that the negligence
claims should have gone to the jury instead—without having
filed a post-judgment motion under Rule 50(b) (or Rule 59).
A new trial is appropriate if, viewing all evidence and
drawing all inferences from that evidence in Horace Mann’s
favor, we determine that a reasonable jury could have re-
turned a verdict for Horace Mann on its negligence claims. See
18 No. 16-2352
Campbell, 499 F.3d at 716. For a reasonable jury to have found
for Horace Mann on these claims, Horace Mann must have
shown: (1) that Aon owed it a duty; (2) that Aon breached that
duty; and (3) that Horace Mann was proximately injured by
the breach. See Jones v. Chi. HMO Ltd. of Ill., 730 N.E.2d 1119,
1129 (Ill. 2000) (citation omitted). 7 There is no dispute that, as
Horace Mann’s insurance broker, Aon owed Horace Mann a
duty of reasonable care. Cf. Garrick v. Mesirow Fin. Holdings,
Inc., 994 N.E.2d 986, 990–91 (Ill. App. Ct. 2013) (noting that,
because the relationship between an insured and its broker is
a fiduciary one, the latter must “exercise reasonable skill and
diligence” toward its client) (citations omitted). Horace Mann
therefore focuses its arguments on the remaining two ele-
ments of the tort.
1. Aon’s Claims-Reporting Advice
Horace Mann first asserts that Aon breached its duty of
care by providing Horace Mann with flawed claims-reporting
advice. On May 5, 2010, Aon gave to Horace Mann a set of
reporting guidelines, which included a warning that if Horace
Mann notified Lexington of a “potential” claim for cover-
age—and Lexington rejected that notice as providing insuffi-
cient information—“there would likely be no coverage for the
matter under the noticed policy” or “any future policy”
(should any efforts to cure the deficiency be unsuccessful).
Horace Mann contends that this warning did not track the
policy language, and that, but for this unsound advice, Hor-
ace Mann would not have asked Aon to hold off on reporting
the Burley matter to Lexington in September 2010. Once aware
of a “potential” coverage issue, the theory goes, Lexington
7 The parties agree that Illinois law applies in this case.
No. 16-2352 19
would have set up a claim file, and would have asked Horace
Mann to keep Lexington abreast of any relevant goings on.
Lexington therefore would have learned, much sooner than it
actually did, of the September 2010 letter seeking extra-con-
tractual damages (and of other significant documents and
events); and the defenses to coverage upon which Lexington
relied in its first summary-judgment motion would not have
been viable, as each stemmed from an alleged delay in report-
ing certain information about the underlying dispute. Thus,
says Horace Mann, Lexington would have indemnified Hor-
ace Mann for any Burley “claim,” and Horace Mann could
have avoided the present litigation altogether.
Aon offers several reasons why Horace Mann’s theory can-
not win the day, but we need only one: Horace Mann has not
shown but-for causation. Even assuming that Aon’s advice
was faulty, and that, absent that advice, Lexington’s original
defenses to coverage would have been unavailable, Horace
Mann points to no evidence—and otherwise makes no argu-
ment—that Lexington would not have lodged any other objec-
tions to indemnifying its insured. That Horace Mann had to
fight for indemnification because of Aon’s advice (or that, be-
cause of this advice, Horace Mann had to incur greater costs
in fighting for coverage than it otherwise would have) is mere
speculation—which cannot defeat a judgment under Rule
50(a). We thus affirm the judgment for Aon on Horace Mann’s
faulty-advice claim.
2. Aon’s Alleged Failure to Follow Instructions
Horace Mann also contends that it was forced to litigate
coverage for the Burley “claim” because Aon did not ade-
quately follow Horace Mann’s instructions to notify Lexing-
20 No. 16-2352
ton of that matter in 2010. Because this theory of recovery suf-
fers from the same defect as the previous one, we again affirm
the judgment for Aon under Rule 50.
We end with a parting observation: The district court in
this instance took the fairly unusual step of removing the case
from the jury before the jury had rendered a verdict. While
this step was certainly a permissible one, in general, we think
the better practice is for the court to take any Rule 50(a) mo-
tions under advisement until the jury has concluded its delib-
erations. The latter approach may obviate the need for a new
trial—and thus conserve both time and resources for all—
should it later be determined that the district court erred in
granting a party’s motion for judgment as a matter of law.
III. Conclusion
The decisions of the district court are AFFIRMED.