Tarsco Bolted Tank, Inc. v. American Structures, Inc. et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
TARSCO BOLTED TANK, INC.,
Plaintiff,
v.
AMERICAN STRUCTURES, INC. and
AMERICAN ENGINEERED TANKS, LLC,
Defendants,
and
THE CINCINNATI SPECIALTY UNDERWRITERS
INS. CO.,
Intervenor.
OPINION and ORDER
25-cv-311-jdp
Plaintiff Tarsco Bolted Tank, Inc. bought several thousand bolts for the purpose of
building water storage tanks for a power plant. A third party built the water storage tanks, but
when it tested them, it discovered a leak that it attributed to defective bolts. The third party
filed an arbitration demand against Tarsco for damages and ultimately settled. Tarsco now
seeks damages from the sellers of the bolts for breach of contract and indemnification.
Two motions for summary judgment are pending. First, defendant American Structures,
Inc. moves for summary judgment on Tarsco’s claims against it, Dkt. 40, contending that it
isn’t liable for breach of contract or indemnification because it was not American Structures
that sold the bolts, but its affiliate and co-defendant American Engineered Tanks, LLC. The
court will grant American Structures’ motion because Tarsco has failed to adduce any evidence
that American Structures was a party to the bolt sale.
Second, American Engineered Tanks moves for summary judgment on the claims for
declaratory judgment brought by its insurer, intervenor Cincinnati Specialty Insurance
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Company. Cincinnati Specialty originally sought a declaration that the policy it issued to
American Engineered Tanks does not cover the damages at issue in this case. But after summary
judgment briefing, the parties now agree that the policy covers at least some of the damages at
issue. The court will grant American Engineered Tanks’s motion for summary judgment as
undisputed.
BACKGROUND
The court begins with a brief background of the case. The court will discuss additional
facts relevant to each motion for summary judgment in the applicable section of the analysis.
This case arises from the construction of the Three Rivers Energy Center, a power plant
located in 	Morris, 	Illinois. 	The general contractor overseeing the construction 	project
contracted with Chattanooga Boiler & Tank Company to build and supply three bolted tanks,
which would be used to store water for fire protection at the power plant. Chattanooga
subcontracted with plaintiff Tarsco Bolted Tank, Inc. to design and provide materials for the
bolted tanks.
Tarsco purchased several thousand bolts for the tanks from either defendant American
Structures, Inc. or defendant American Engineered Tanks, LLC. (American Structures and
American Engineered Tanks are affiliated entities, but the parties disagree about which entity
sold the bolts to Tarsco. The court will address that issue when it turns to American Structures’
motion for summary judgment). Tarsco delivered the bolts and other materials for the tanks
to Chattanooga, which assembled the tanks.
During hydrotesting, at least one of the tanks leaked. Chattanooga blamed Tarsco,
asserting that the bolts were defective. Chattanooga and Tarsco ultimately settled their dispute
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at arbitration. Tarsco then filed this lawsuit against American Structures and American
Engineered Tanks, asserting claims for breach of contract and common-law indemnification.
After 	Tarsco 	filed 	suit, 	the 	court 	allowed 	American 	Engineered 	Tanks’ 	insurer
Cincinnati Specialty Underwriters Insurance Company to intervene. Cincinnati Specialty
Underwriters sought a declaratory judgment that the policy it issued to American Engineered
Tanks does not cover the events at issue in this case.
ANALYSIS
The court’s main concern is the two pending summary judgment motions. American
Structures moves for summary judgment on Tarsco’s claims against it, contending that
American Engineered Tanks, not American Structures, sold the bolts to Tarsco. American
Engineered Tanks moves for summary judgment on Cincinnati Specialty’s insurance coverage
claim, asserting that its insurance policy covers the events at issue in this case. But there is a
threshold question that the court must address, which is whether this court has subject-matter
jurisdiction under 28 U.S.C. § 1332.
A. Jurisdiction
Federal courts have diversity jurisdiction over cases that arise under state law only if the
parties are completely diverse and the amount in controversy exceeds $75,000. 28 U.S.C.
§ 1332(a). The amount-in-controversy requirement is satisfied here: when the complaint was
filed, Chattanooga was seeking several million dollars in damages from Tarsco, which Tarsco
in turn sought from the defendants via indemnification. See Dkt. 15-3 (Chattanooga’s
arbitration demand). But there is a potential issue related to complete diversity.
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Complete diversity means that “none of the parties on either side of the litigation may
be a citizen of the state of which a party on the other side is a citizen.” Howell v. Tribune
Entertainment Co., 106 F.3d 215, 217 (7th Cir. 1997). There is no diversity problem between
the original parties to the lawsuit. Tarsco is a Delaware corporation with its principal place of
business in Missouri, so it is a citizen of Delaware and Missouri. American Structures is a
Wisconsin corporation with its principal place of business in Wisconsin, so it is a citizen of
Wisconsin. And American Engineered Tanks is a limited-liability company whose sole member
is a citizen of Wisconsin, so it is a citizen of Wisconsin. Dkt. 66 (stipulation on jurisdiction).
But a potential problem arises with the intervenor, Cincinnati Specialty Underwriters
Insurance Company, which is a Delaware corporation with its principal place of business in
Ohio. That means that both Cincinnati Specialty and Tarsco are citizens of Delaware.
After discovering that Cincinnati Specialty and Tarsco were non-diverse, the court
ordered Cincinnati Specialty to submit a supplemental brief on jurisdiction. Dkt. 67. Based on
Cincinnati Specialty’s response and the court’s own research, the court is satisfied that there is
no jurisdictional problem here. The general rule is that jurisdiction is determined based on the
facts that exist when the complaint is filed. Aurora Loan Servs., Inc. v. Craddieth, 442 F.3d 1018,
1025 (7th Cir. 2006). Relying on that general rule, the court of appeals has held that
intervention by a non-diverse party generally does not destroy diversity jurisdiction, unless the
intervenor was an indispensable party at the time the complaint was filed. Am. Nat’l Bank and
Tr. Co. of Chicago v. Bailey, 750 F.2d 577, 582 (7th Cir. 1984); Costain Coal Holdings, Inc. v.
Resource Inv. Corp., 15 F.3d 733, 734 (7th Cir. 1994).
The court of appeals has not yet provided a definition for what makes an intervenor
“indispensable.” See Schuld v. Thodos, No. 21-CV-1807, 2022 WL 888870, at *5 n.1 (N.D. Ill.
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Mar. 25, 2022). But it has explained that the key principle is whether “the plaintiff should
have joined [the party] at the outset, and if he had done so the court would have known that
complete diversity was lacking.” Am. Nat’l Bank, 750 F.2d at 582. Thus, a party is not
indispensable if its interest in the case arises only after the lawsuit was filed. Id. at 583; Aurora
Loan Servs., 442 F.3d at 1025. Several district courts have employed the four-factor balancing
test for necessary joinder under Federal Rule of Civil Procedure 19(b) to analyze whether an
intervening party is indispensable. E.g., Faulman Inv., Ltd. v. Engineered Prods. & Servs., Inc., 830
F. Supp. 3d 776, 789 (E.D. Wis. 2026); Schuld, 2022 WL 888870, at *5 n.1. That test asks
(1) whether a judgment rendered in the party’s absence might be prejudicial to that party or
to the existing parties; (2) the extent to which relief can be tailored to avoid prejudice to the
party; (3) whether a judgment in the party’s absence would be adequate; and (4) whether the
plaintiff has an adequate remedy if the action is dismissed. See Woodring v. Culbertson, 227
F.R.D. 290, 294 (N.D. Ind. 2005) (citing United States v. Tribal Dev. Corp., 100 F.3d 476,
478–79 (7th Cir. 1996)).
Applying these rules to this case, it is clear that Cincinnati Specialty is not an
indispensable party. Cincinnati Specialty intervened to adjudicate whether the insurance policy
it issued to American Engineered Tanks covers the events at issue in this case. Tarsco had no
obligation to join Cincinnati Specialty from the outset, because Cincinnati Specialty wasn’t an
interested party before the lawsuit was filed—its interest arose only after the lawsuit triggered
a possible coverage obligation. See Faulman, 830 F. Supp. 3d at 789–90 (“Additionally, [the
intervening insurer’s] interest in determining whether the policy covers the burglary and
vandalism at the St. Louis property did not ripen until after this suit commenced.”) (emphasis
in original). The Rule 19(b) factors compel the same conclusion. The coverage issue is a
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separate question from whether the defendants sold defective bolts to Tarsco and are liable for
breach of contract and indemnification. The court could render an adequate judgment on the
underlying claims without prejudicing Cincinnati Specialty or any other party.
Because Cincinnati Specialty is not an indispensable party, the court concludes that its
intervention does not destroy diversity jurisdiction. With jurisdiction established, the court
proceeds to the merits of the parties’ summary judgment motions.
B. American Structures’ motion
American Structures moves for summary judgment on Tarsco’s claims against it,
contending that its affiliate American Engineered Tanks sold the bolts to Tarsco, not American
Structures. The court will grant summary judgment to American Structures only if there are
no genuine disputes of material fact and American Structures entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(a). The court must construe disputed facts and draw all reasonable
inferences in Tarsco’s favor. Melton v. Tippecanoe Cnty., 838 F.3d 814, 818 (7th Cir. 2016).
Tarsco doesn’t dispute that its claims against American Structures fail if American
Structures wasn’t involved in supplying the bolts. Novelly Oil Co. v. Mathy Const. Co., 147 Wis.
2d 613, 617 433 N.W.2d 628, 629–30 (Ct. App. 1988) (a basic requirement of contract law
is that the parties in fact have a contract).1 But Tarsco contends that there are genuine disputes
of fact about American Structures’ involvement, for two reasons. First, Tarsco says that much
of the evidence American Structures provided to show that the American Engineered Tanks
supplied the bolts is inadmissible. Second, Tarsco says that it has adduced sufficient evidence
for a reasonable jury to find that American Structures was involved in the sale.
1 In their briefs, both sides assume that Wisconsin law applies to the claims in this case, so the
court will do the same.
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1. Evidentiary issues
On summary judgment, parties must provide proposed findings of fact supported by
citations to the record. See Fed. R. Civ. P. 56(c)(1)(A); Standard Attachments for Civil Cases
Assigned to Judge Peterson, attachment to Dkt. 10, at 2, § I.B. Cited evidence must be
“admissible to the same extent as at trial, at least if the opposing party objects, except that
testimony can be presented in the form of affidavits or transcripts of sworn testimony rather
than in person.” Steffek v. Client Servs., Inc., 948 F.3d 761, 769 (7th Cir. 2020); see also Fed. R.
Civ. P. 56(c)(2). If one side objects to a proposed fact on the ground that the supporting
evidence is inadmissible, then the court must consider the evidentiary objection before relying
on that fact in its decision. Steffek, 948 F.3d at 769.
Tarsco 	objects 	to 	many 	of 	American 	Structures’ 	proposed 	findings 	of 	fact 	as
unsupported by admissible evidence. The objections fall into two categories.
First, American Structures proposes facts about a call between its president Earl
Wildenberg and Tarsco materials manager Tisha Hall, in which Wildenberg told Hall that
American Structures did not have the bolts that Tarsco requested, but that American
Engineered Tanks might have them. Dkt. 67, ¶¶ 9–10. Tarsco objects to these proposed facts
because they are supported only by American Structures’ interrogatory responses, which Tarsco
says are unsworn and are inadmissible hearsay. Dkt. 54, at 6. Tarsco is wrong about the
interrogatory responses being unsworn: the signature page shows that Wildenberg signed and
swore to the responses before a notary. Dkt. 48-1, at 6. As for the hearsay issue, Tarsco is
correct that a party’s own interrogatory responses are generally inadmissible hearsay. See Luster
v. Illinois Dep’t of Corr., 652 F.3d 726, 731 n.2 (7th Cir. 2011). But at summary judgment, a
sworn affidavit from a witness with personal knowledge is an acceptable alternative to sworn
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testimony at trial. Steffek, 948 F.3d at 769. The interrogatory responses were signed and sworn
by Wildenberg, just like an affidavit, so the court will consider them to the same extent that it
would consider an affidavit.
Tarsco also argues that the interrogatory responses contain “substantial credibility
concerns” that should preclude the court from considering them at summary judgment.
Dkt. 54, at 7. Tarsco points to American Structures’ fourth interrogatory response, in which
American Structures says that it and American Engineered Tanks are separate entities with no
shared employees, locations, financial accounts, warehouses, or inventory. Dkt. 48-1, ¶ 4.
Tarsco says that this is demonstrably false because American Structures’ president Earl
Wildenberg is also the sole member of American Engineered Tanks, and because in their
answers to the complaint, American Structures and American Engineered Tanks listed the same
PO Box in Menomonie, Wisconsin, as their principal place of business.
These 	facts 	don’t 	render 	American 	Structures’ 	fourth 	interrogatory 	response
demonstrably false. Wildenberg is associated with both companies, but its not clear that he’s
an “employee” of either company, so could still be true that the companies share no employees.
And it appears that American Structures and American Engineered Tanks share a PO Box, but
American Structures said only that the two businesses share no “locations.” It’s at least
debatable whether a shared PO Box is a “location.” In any event, even if American Structures’
fourth interrogatory response is suspect, American Structures did not rely on it to support its
proposed findings of fact. Tarsco cites no authority holding that an entire affidavit can be
disregarded because a portion of it is disputed, nor is the court aware of any.
Second, Tarsco objects to multiple proposed findings of fact that rely on emails,
invoices, bank statements, and other business records from American Engineered Tanks. Tarsco
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says that these records are not authenticated, because American Structures introduced them
via the affidavit of its attorney, who does not have personal knowledge of their authenticity.
Tarsco is correct that documents submitted in support of a summary judgment motion
must be authenticated, Scott v. Edinburg, 346 F.3d 752, 759–60 & n.7 (7th Cir. 2003), meaning
that the proponent of the document must adduce “evidence sufficient to support a finding that
the matter in question is what its proponent claims.” Fed. R. Evid. 901(a). Submitting
evidentiary documents via the declaration of litigation counsel is a questionable practice,
because counsel often lacks a foundation of personal knowledge to establish the bona fides of
the evidence. The most direct way to authenticate a document is via testimony from its author.
Fed R. Evidence 901(b)(1); Devbrow v. Gallegos, 735 F.3d 584, 586–87 (7th Cir. 2013). But
documents can also be authenticated by their “appearance, contents, substance, internal
patterns, or other distinctive characteristics . . . taken together with all the circumstances.”
Fed. R. Evidence 901(b)(4). Emails, for instance, can be authenticated circumstantially based
on the sender’s email address, the email’s context, and evidence of other correspondence
between the parties. Devbrow, 735 F.3d at 586; Fenje v. Feld, 301 F. Supp. 2d 781, 809 (N.D.
Ill. 2003).
The court concludes that the business records that American Structures relies on have
sufficient markers of authenticity to be admissible under Rule 901, because their appearance,
contents, and characteristics all support the conclusion that they are American Engineered
Tanks’s business records. The emails were sent from email addresses that appear to be
associated with American Engineered Tanks (@aetanks.com), and the senders’ email signatures
contain the American Engineered Tanks logo. E.g., Dkt. 48-2; Dkt. 48-3; Dkt. 48-7. The
invoices attached to the emails also have the American Engineered Tanks logo. E.g., Dkt. 48-4,
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at 9. Further, Tarsco has not adduced any evidence that these records are inauthentic. Tisha
Hall, a Tarsco employee, received almost all the emails and invoices, so if they were inauthentic,
Tarsco could have easily submitted its own version of the records along with a declaration from
Hall explaining any discrepancies.
The court overrules Tarsco’s objections to the interrogatory responses and the American
Engineered Tanks business records.2 With the evidentiary issues resolved, the court proceeds
to whether Tarsco has met its burden to show that American Structures was involved in the
bolt sale.
2. American Structures’ involvement in the sale
American Structures’ core contention is that American Engineered Tanks, not American
Structures, sold the allegedly defective bolts to Tarsco. To prevail on its breach-of-contract and
contractual indemnification claims against American Structures, Tarsco must demonstrate that
it and American Structures had a valid contract; in other words, that American Structures
assented to sell bolts to Tarsco and Tarsco assented to purchase them. See Goossen v. Est. of
Standaert, 525 N.W.2d 314, 318 (Wis. App. 1994) (citing Restatement (Second) of Contracts
§ 3). To prevail on its common-law indemnification claims, Tarsco must demonstrate that it
has been exposed to liability due to American Structures’ wrongful act and that the obligation
to bear the loss should be shifted to American Structures as a matter of equity. See Est. of Kriefall
v. Sizzler USA Franchise, Inc., 2012 WI 70, ¶¶ 39–43, 342 Wis. 2d 29, 816 N.W.2d 853. Neither
side distinguishes between these two categories of claims in their briefs; rather, they both
2 In its brief, Tarsco also objected to the expert report of American Structures’ engineering
expert Peter McKeighan. See Dkt. 54, at 5–6. McKeighan’s report is not relevant to the
summary judgment motions, so the court need not consider that objection.
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assume that Tarsco’s claims fail if American Structures was not a party to the bolt sale. The
key question, therefore, is simple: could a reasonable jury infer from the evidence that American
Structures was a party to the bolt sale?
The relevant facts about the sale are not genuinely disputed. In May 2021, Tisha Hall,
a materials manager at Tarsco, emailed two employees of American Structures to ask whether
American Structures had certain quantities and sizes of bolts. Dkt. 48-18, at 4. American
Structures’ president Earl Wildenberg followed up with Hall via telephone, informing her that
American Structures didn’t have the bolts but that American Engineered Tanks might.3
Dkt. 48-1, ¶¶ 9–10. The next day, Terrel Sutliff, whose email signature identified her as a
marketing manager for American Engineered Tanks, emailed Hall, explaining, “Earl asked me
to provide you with our bolt count and pricing for the two sizes you requested.” Dkt. 48-5, at
10. Sutliff asked Hall to send her a purchase order if Tarsco wanted to move forward. Id.
Hall sent Sutliff a purchase order, which listed American Structures, not American
Engineered Tanks, as the vendor. Dkt. 48-2, at 3. Sutliff didn’t correct that mistake, but she
and Hall emailed back and forth a few more times about the number of bolts Tarsco would be
ordering and the expected shipping costs. Hall then sent Sutliff an updated purchase order (still
listing American Structures as the vendor), Dkt. 48-3, at 4, and, after determining the shipping
costs, Sutliff sent Hall back an invoice for $11,648.29 for the bolts and shipping costs.
Dkt. 48-4, at 9. The invoice listed American Engineered Tanks as the vendor. Id. American
3 Tarsco objected to the proposed facts about Wildenberg’s call with Hall on evidentiary
grounds, as the court already discussed. But it did not submit any contrary evidence, such as a
declaration from Hall, disputing what Wildenberg said. Accordingly, Wildenberg’s account of
the call is undisputed.
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Engineered Tanks shipped the bolts from its warehouse facility to a third-party location as
requested by Tarsco. Id. at 5–6.
A few weeks later, Tarsco wrote a check for the invoice amount, listing American
Structures as the payee. Dkt. 48-6, at 4. About a week later, American Engineered Tanks made
a $14,202.79 deposit in its bank account. The receipt associated with that deposit includes a
handwritten note that says: “Cash Dale Maroszek Inv 21-0031 $2554.50; Check Tarsco Inv
21-0027 $11648.29.” Id. at 2–3. The parties don’t say who wrote this note or whether Tarsco’s
check was actually deposited on that day, but they do agree that the check was deposited at
some point.
Tarsco contends that a reasonable jury could infer from the above evidence that
American Structures was a party to the bolt sale, for two reasons. First, Tisha Hall
communicated with employees of American Structures about the transaction, including its
president Earl Wildenberg. Second, Tarsco’s purchase orders listed American Structures as the
vendor for the bolts, and the check it issued to pay for the bolts listed American Structures as
the payee and was deposited.
The court concludes that Tarsco has not adduced evidence sufficient for a reasonable
jury to find that American Structures was a party to the bolt sale. Tarsco is correct that Tisha
Hall initially contacted American Structures about purchasing bolts. But the undisputed
evidence is that Earl Wildenberg subsequently referred Hall to American Engineered Tanks,
that Hall arranged the sale with American Engineered Tanks employee Terrel Sutliff, and that
American Engineered Tanks ultimately shipped the bolts to Tarsco from its warehouse. It
appears that Hall mistakenly believed that Tarsco was buying the bolts from American
Structures, because she listed American Structures as the vendor on Tarsco’s purchase orders
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and ultimately wrote the check out to American Structures. But a contract requires mutual
assent. Even if Tarsco thought that it was buying bolts from American Structures, there is no
evidence that American Structures thought that it was selling bolts to Tarsco.
Tarsco’s strongest piece of evidence is that the check it issued payable to American
Structures was deposited. Tarsco doesn’t have any evidence of who deposited it, but it argues
that a reasonable jury could infer that it was American Structures because American Structures
was the payee. American Structures counters that American Engineered Tanks deposited the
check, but the only evidence it offers on that point is a handwritten note on a bank deposit
receipt, which is hardly compelling evidence.4
Ultimately, however, the issue of which entity deposited the check is a strawman. The
key question isn’t who was paid for the bolts; it’s who sold them. If American Structures had
for some reason deposited a check for goods that it didn’t sell, that wouldn’t automatically
make it a party to the sale (although it would potentially open it up to other forms of legal
liability, such as for unjust enrichment). On the key question of who sold the bolts, all the
evidence points to American Engineered Tanks, which undisputedly arranged the sale and
shipped the bolts from its warehouse.
Tarsco also suggests in its brief that American Engineered Tanks may have been acting
as American Structures’ agent in the sale or that American Structures may have somehow
ratified the sale. But Tarsco points to no evidence supporting either of these theories. Tarsco
4 Neither party addresses why American Engineered Tanks apparently deposited a check that
was written out to American Structures. That action could call into question whether the two
companies are truly operated as separate entities, which could support an argument for piercing
the corporate veil. See Consumer’s Co-op. of Walworth Cnty. v. Olsen, 142 Wis. 2d 465, 484, 419
N.W.2d 211 (1988). But Tarsco doesn’t argue that veil-piercing is warranted here, so the court
will not consider that issue.
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has the burden of proof on its claims, so at summary judgment, it has to adduce evidence
sufficient to create a triable issue on each element of those claims. Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986). Tarsco takes issue with American Structures’ evidence, but it didn’t
adduce any contrary evidence that would support a finding that American Structures was a
party to the bolt sale. The court will grant American Structures’ motion for summary judgment.
C. American Engineered Tanks’ motion
American Engineered Tanks moves for summary judgment on intervenor Cincinnati
Specialty Underwriters declaratory judgment claim, contending that its policy with Cincinnati
Specialty unambiguously covers the damages at issue in this case.
The policy states that Cincinnati Specialty would “pay those sums that the insured
becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’”
caused by an “occurrence” during the coverage period. Dkt. 51-2, at 17. An “occurrence” means
“an accident, including continuous or repeated exposure to substantially the same general
harmful conditions.” Id. at 31. The policy excludes coverage for damages to replace defective
products manufactured or sold by American Engineered Tanks. Id. at 31, 32–33.
Although Cincinnati Specialty’s intervenor complaint suggests a possible disagreement
about policy construction, it is clear from the parties’ summary judgment briefing that they
now agree about the relevant policy construction. Tarsco’s claims arise from leaking water
storage tanks that Tarsco says was caused by American Engineered Tanks’s defective bolts. The
parties agree that these events qualify as an “occurrence” under the policy, so if the tanks were
damaged because American Engineered Tanks’s bolts were defective, the policy would cover
that damage. See Dkt. 58, at 11 (response brief); Dkt. 63, at 4 (reply brief). The parties also
agree that the policy does not cover the replacement costs of the bolts, because the policy
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excludes coverage for damages to replace defective products sold by American Engineered
Tanks. Dkt. 58, at 10; Dkt 63, at 4–5. The parties’ agreement on these two issues resolves most
of the coverage issues in this case.5
The remaining issue is whether American Engineered Tanks’ request for summary
judgment against Cincinnati Specialty is premature. Cincinnati Specialty does not dispute the
policy construction, but it contends that the summary judgment motion should be denied
because it is not yet clear what the exact amount of covered and non-covered damages are. But
Federal Rule of Civil Procedure 56 allows parties to seek summary judgment as to only a part
of a claim. Fed. R. Civ. P. 56(a); BBL, Inc. v. City of Angola, 809 F.3d 317, 325 (7th Cir. 2015)
(“At the summary-judgment stage, the court can properly narrow the individual factual issues
for trial by identifying the material disputes of fact that continue to exist.”) (emphasis in
original). There is no reason to withhold summary judgment on the policy construction issue
just because the amount of damages remains unclear.
The parties agree that Cincinnati Specialty has at least some coverage obligation in this
case, so the court will grant American Engineered Tanks’s motion for summary judgment on
Cincinnati Specialty’s request for a declaration that it has “no obligation to pay any sums of
money for which [American Engineered Tanks] may be held liable in this action,” and that
“the Policy identified does not provide coverage to any person, party, or entity for the damages
5 In its reply brief, American Engineered Tanks says that Cincinnati Specialty also conceded
that it had a duty to defend American Engineered Tanks in this lawsuit. Dkt. 63, at 7.
Cincinnati Specialty explained in its response brief that it was currently defending American
Engineered Tanks pursuant to the policy, but it did not concede that it would continue to have
an obligation to do so. See Dkt. 58, at 5. And American Engineered Tanks did not raise the
defense issue until its reply brief, so it forfeited that issue. Bergal v. Roth, 2 F.4th 1059, 1062
(7th Cir. 2021). The court takes no position at this point on whether the policy requires
Cincinnati Specialty to defend American Engineered Tanks on an ongoing basis.
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sought in this action.” See Dkt. 31-1 (intervenor complaint, at 3). Whether the policy covers
all the damages that American Engineered Tanks may ultimately be held liable for, or whether
some of those damages might fall into a policy exclusion, have not been presented by the
parties, so the court will reserve those issues for another day.
D. Remaining issues
The court is granting American Structures’ motion for summary judgment on all claims,
so American Structures will be dismissed from this case. The court has also resolved most of
the policy construction issues raised by Cincinnati Specialty’s intervenor complaint. But the
summary judgment motions did not address the heart of this case, which is whether American
Engineered Tanks sold Tarsco defective bolts and whether it is responsible for indemnifying
Tarsco for the damages it paid to Chattanooga.
Because American Engineered Tanks did not move for summary judgment on the main
issues in this case, it is not year clear what those issues are. Thus, to assist the court with
preparing for trial, the parties are directed to file trial briefs along with the other required
pretrial submissions discussed in the preliminary pretrial conference order. Those briefs should
include the following information: (1) a summary of all the claims and defenses that need to
be resolved at trial; (2) an explanation of each issue that the jury will have to decide to resolve
those claims; (3) a summary of the evidence the parties intend to offer on each issue; and (4)
an explanation for why the parties included each of their proposed substantive jury instructions
and how those instructions relate to a question on their proposed verdict form. If they wish,
the parties may file a short response to the other parties’ trial briefs when they file their
objections to other pretrial submissions.
Case: 3:25-cv-00311-jdp Document #: 68 Filed: 10/14/26 Page 16 of 17

17
ORDER
IT IS ORDERED that:
1. 	Defendant American Structures, Inc.’s motion for summary judgment, Dkt. 40, is
GRANTED. American Structures is DISMISSED from the case.
2. 	Defendant American Engineered Tanks, LLC’s motion for summary judgment on
the issue whether intervenor Cincinnati Specialty Underwriters Insurance Company
has some coverage obligation in this case, Dkt. 49, is GRANTED.
3. 	The parties are directed to file trial briefs along with their other required pretrial
submissions. If they wish, the parties may file a short response to the other parties’
trial briefs when they file their objections to the other pretrial submissions.
Entered October 14, 2026.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
Case: 3:25-cv-00311-jdp Document #: 68 Filed: 10/14/26 Page 17 of 17