Sinmier, LLC v. Everest Indemnity Insurance Company et al

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
SINMIER, LLC, 	CASE NO. 3:19 CV 2854
Plaintiff,
v. 	JUDGE JAMES R. KNEPP II
EVEREST INDEMNITY INS. CO., et al.,
MEMORANDUM OPINION AND
Defendants. 	ORDER
I NTRODUCTION
Currently pending before the Court is Plaintiff Sinmier, LLC’s Motion for Entry of Final
Judgment Under Rule 54(b). (Doc. 422). Plaintiff asks this Court to certify its September 26,
2023, Memorandum Opinion and Order (Doc. 412) as a final judgment for immediate appeal.
The remaining Defendants do not oppose the Motion. See Doc. 423, at 2. For the reasons set
forth below, the Court grants the motion and certifies its prior orders granting summary
judgment to Everest and EverSports (Doc. 410) and Bankers (Doc. 412) as final judgments under
Rule 54(b).1
BACKGROUND
Claims
Plaintiff’s Second Amended Complaint in this matter brought claims against Defendants
Everest Indemnity Insurance Company (“Everest”), Bankers Insurance, LLC (“Bankers”),
1. Although Plaintiff expressly only requests the Court certify its September 26, 2023, Order as a
final judgment for immediate appeal, the content of its Motion (and related briefing before the
Sixth Circuit) makes clear Plaintiff seeks to immediately appeal the determinations in both the
September 26, 2023, opinion granting Everest and EverSports summary judgment (Doc. 410),
and the March 30, 2023, opinion granting Bankers summary judgment (Doc. 412).
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Specialty 	Insurance 	Group 	(now 	EverSports 	& 	Entertainment 	Insurance) 	(“Eversports”)),
Alternative Risk Company (“ARC”), and Berkley National Insurance Company (“Berkley”).
(Doc. 76). Vintro Hotel & Resorts, Ohio, LLC was also named as a Defendant. See id.
In their Answer, Everest and EverSports asserted cross-claims for indemnification and
contribution against, inter alia, Bankers and ARC. (Doc. 82, at 22-32). Specifically as to Bankers
and ARC, Everest and EverSports asserted:
65. Sinmier alleges in its Second Amended Complaint filed in this action that
Everest and [EverSports] are liable for certain acts, conduct, or omissions of
Bankers and [ARC].
66. To the extent that Sinmier is entitled to damages for the claims set forth in the
Second Amended Complaint, such damages were caused by the acts, conduct
and/or omissions of Bankers and/or [ARC].
67. Should Everest or [EverSports] be found liable to Sinmier for any claim
alleged in the Second Amended Complaint . . . such liability is due to the
actions[,] conduct and/or omissions of Bankers and/or [ARC], not Everest or
[EverSports].
68. 	Accordingly, 	Everest 	and 	[EverSports] 	are 	entitled 	to 	and 	seek
indemnification and/or contribution from Bankers and [ARC] for the full extent of
the liability of [EverSports] and Everest, including the costs, expenses, and
attorneys’ fees incurred in defending the present action.
Id. at 31-32. And as to ARC, Everest/EverSports asserted:
70. 	[ARC] 	entered 	into 	a 	Producer 	Agreement 	(the 	“Agreement”) 	with
[EverSports] which is not attached because it is confidential and proprietary.
Everest has provided a copy of the Agreement to the parties pursuant to the
Protective Order in place in this action.
71. The Agreement includes a provision requiring that [ARC] defend, indemnify
and 	hold 	[EverSports] 	harmless 	from 	any 	and 	all 	claims[,] 	suits, 	actions,
liabilities, losses, expenses or damages, including attorneys’ fees and costs, which
arise solely and exclusively from any misrepresentation, act or omission of
Alternative.
72. 	Everest 	is 	a 	third-party 	beneficiary 	of 	such 	Agreement, 	including 	the
provision requiring Alternative to defend, indemnify and hold [EverSports]
harmless.
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73. To the extent that Everest or [EverSports] is held liable for the acts and/or
omissions of [ARC], Everest 	and/or 	[EverSports] is entitled to a defense,
indemnification from and to be held harmless by [ARC], including payment of
attorneys’ fees and costs.
Id. at 32.2
Bankers subsequently asserted counterclaims against Everest and EverSports. (Doc. 95,
at 12-13). Specifically, Bankers asserted a counterclaim for indemnification:
108. To the extent that plaintiff is entitled to damages for the claims set forth in
the Amended Complaint, such damages were caused by the acts, conduct, and/or
omissions of Everest and [EverSports], not Bankers.
109. Should Bankers be found liable to plaintiff for any claim alleged in the
Second Amended Complaint, which liability Bankers expressly denies, such
liability 	is 	due 	to 	the 	actions, 	conduct, 	and/or 	omissions 	of 	Everest 	and
[EverSports], not Bankers, and the liability of Bankers, if any, would be
secondary 	and 	passive 	to 	the 	primary 	and 	active 	conduct 	of 	Everest 	and
[EverSports]. Accordingly, Bankers is entitled to and seeks indemnification from
Everest and [EverSports] for the full extent of its liability, including the costs,
expenses, and attorneys’ fees incurred in defending the present action.
Id. at 12-13. And Bankers asserted a related contribution counterclaim:
111. Should Bankers be found liable to plaintiff for any claim alleged in the
Second Amended Complaint, which liability Bankers expressly denies, such
liability 	is 	due 	to 	the 	actions, 	conduct, 	and/or 	omissions 	of 	Everest 	and
[EverSports], not Bankers, and the liability of Bankers, if any, would be
secondary 	and 	passive 	to 	the 	primary 	and 	active 	conduct 	of 	Everest 	and
[EverSports]. Accordingly, Bankers is entitled to contribution from Everest and
[EverSports].
Id. at 13.
Prior Orders
In a series of opinions, the Court granted summary judgment to Berkley (Doc. 411),
Everest, EverSports, and ARC (Doc. 410), and Bankers (Doc. 412) on all of Plaintiff’s claims
2. Plaintiff did not appeal this Court’s grant of summary judgment in favor of ARC on Plaintiff’s
claims.
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against each. 3 The Court also denied reconsideration of the order granting summary judgment to
Bankers. (Doc. 418).
Sixth Circuit Proceedings
Plaintiff appealed. Sinmier LLC v. Everest Indemnity Ins. Co., No. 24-3775 (6th Cir.).
Following briefing, the Sixth Circuit Court of Appeals issued a Show Cause Order for Possible
Jurisdictional Defect. In its Show Cause Order, the Sixth Circuit noted it was “not clear whether
the remaining indemnification and contribution claims are moot in light of the district court’s
grant 	of 	summary 	judgment 	for 	the 	defendants.” 	The 	parties 	then 	submitted 	requested
supplemental briefing on the jurisdictional issue. Therein, the parties agreed that cross-claims
and counterclaims for indemnification and contribution remained pending before this Court. See
Docs. 422-4, 422-5, 422-6. The parties also agreed those claims were not ripe for adjudication
because they were dependent upon a finding of liability to Plaintiff. See Docs. 422-4, 422-5, 422-
6. Upon consideration of the parties’ briefing, the Sixth Circuit dismissed the appeal for lack of
jurisdiction. See Doc. 422-7 (Sixth Circuit Order dated July 9, 2025). It found that Everest and
EverSports’s cross-claims for indemnification and contribution against Bankers and ARC as well
as Bankers’ counterclaims for indemnification and contribution against Everest and EverSports
remained pending. Id.
Further Proceedings Before This Court
Upon the Sixth Circuit’s dismissal, this Court ordered the parties to submit a Joint Status
Report proposing next steps for resolving the remaining claims. Plaintiff then filed the currently-
pending Motion for Entry of Final Judgment Under Rule 54(b) (Doc. 422). The Motion requests
3. Plaintiff and Berkley subsequently settled their claims. See Doc. 422, at 10; see also Sinmier
LLC v. Everest Indemnity Ins. Co., No. 24-3775 (6th Cir. Jul. 9, 2025) (“Neither ARC nor Vintro
is a party to the appeal; the parties stipulated to the dismissal of Berkely.”).
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this Court amend the September 26, 2023, order (Doc. 412) granting Bankers summary judgment
to certify there is no just reason for delay. Id. at 16. Plaintiff and the remaining Defendants filed
a Joint Status report indicating no party objected to the Motion and that, should this Court grant
the motion, Plaintiff “will refile its Claim of Appeal against Bankers and Everest/EverSports.”
(Doc. 423, at 2).
DISCUSSION
Federal Civil Rule 54(b) provides:
(b) JUDGMENT ON MULTIPLE CLAIMS OR INVOLVING MULTIPLE PARTIES. When an
action presents more than one claim for relief—whether as a claim, counterclaim,
crossclaim, or third-party claim—or when multiple parties are involved, the court
may direct entry of a final judgment as to one or more, but fewer than all, claims or
parties only if the court expressly determines that there is no just reason for delay.
Otherwise, any order or other decision, however designated, that adjudicates fewer
than all the claims or the rights and liabilities of fewer than all the parties does not
end the action as to any of the claims or parties and may be revised at any time
before the entry of a judgment adjudicating all the claims and all the parties’
rights and liabilities.
Fed. R. Civ. P. 54(b). “Proper certification under Rule 54(b) is a two-step process.” EJS Props.,
LLC v. City of Toledo, 689 F.3d 535, 537 (6th Cir. 2012). “First, the district court must expressly
direct the entry of final judgment as to one or more but fewer than all the claims or parties in a
case. Second, the district court must expressly determine that there is no just reason to delay
appellate review.” Id. (quoting Gen. Acquisition, Inc. v. GenCorp, Inc., 23 F.3d 1022, 1026 (6th
Cir. 1994)).
The Sixth Circuit has set forth a “nonexhaustive list of factors” for a court to consider
when deciding whether to certify a claim or claims under Rule 54(b):
(1) the relationship between the adjudicated and unadjudicated claims; (2) the
possibility that the need for review might or might not be mooted by future
developments in the district court; (3) the possibility that the reviewing court
might be obliged to consider the same issue a second time; (4) the presence or
absence of a claim or counterclaim which could result in set-off against the
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judgment sought to be made final; (5) miscellaneous factors such as delay,
economic and solvency considerations, shortening the time of trial, frivolity of
competing claims, expense, and the like.
Corrosioneering, Inc. v. Thyssen Env’t Sys., Inc., 807 F.2d 1279, 1283 (6th Cir. 1986) (quoting
Allis-Chalmers v. Philadelphia Elec. Co., 521 F.2d 360, 364 (3d Cir. 1975)). “The power which this
Rule confers upon the trial judge should be used only ‘in the infrequent harsh case’ as an
instrument for the improved administration of justice.” Id. at 1282 (quoting Panichella v. Penn.
R.R. Co., 252 F.2d 452, 455 (3d Cir. 1958)).
Starting with the first step of the Rule 54(b) analysis, the Court finds there has been a final
judgment as to one or more but fewer than all claims in this case. Specifically, in its March 30,
2023, Memorandum Opinion and Order, the Court granted summary judgment to Everest,
EverSports, and ARC on all of Plaintiff’s claims against those parties. (Doc. 410). And, on
September 26, 2023, the Court granted summary judgment to Bankers on all of Plaintiff’s claims
against it. (Doc. 412). Combined with this Court’s ruling in favor of Berkley on its summary
judgment motion, all claims brought by Plaintiff Sinmier against Defendants have been adjudicated
in those Defendants’ favor. Remaining unadjudicated, the parties agree, are only the cross-claims
and counterclaims for indemnification and contribution between Everest, EverSports, Bankers, and
ARC.4
Turning to the second step of the Rule 54(b) analysis, which asks whether there is “no
just reason for delay,” the Court finds a balanced consideration of the above-cited factors weighs
in favor of certifying these prior determinations for immediate appeal. First, although the
unadjudicated claims are most certainly related to the adjudicated ones (in that they are
4. Everest, EverSports, and Bankers also brought claims against Vintro, but these were resolved
via default judgment. (Doc. 257, 384). And again, Plaintiff did not appeal the Court’s grant of
summary judgment to ARC.
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dependent upon them), they are legally distinct. The adjudicated claims involve Plaintiff’s claims
against each Defendant and are dependent upon questions of Ohio negligence, contract, and
insurance law including the rights of a mortgagee. The unadjudicated claims involve only
questions of indemnification and contribution between the Defendants. Second, because the only
remaining claims are dependent upon a finding of a Defendant’s liability to Plaintiff, no further
proceedings before this Court would moot the adjudicated liability claims sought to be appealed.
Third, certification would not result in the circuit court considering the same issues twice. The
issues addressed by this Court’s prior orders involve the summary judgment standard and
Everest, EverSports, and Bankers’ liability to Plaintiff. Should the Court reverse and find issues
of fact were presented, the matter would be set for trial on the remaining disputes; and
indemnification/contribution claims between Defendants would be revived and need to be
resolved. Fourth, this Court’s prior orders did not award monetary relief against which any set-
off could result. Fifth and finally, certification at this juncture would serve judicial economy and
ensure the parties’ interests are protected going forward. Should the Sixth Circuit affirm this
Court’s prior determinations and agree no Defendant is liable to Plaintiff, there will be nothing
remaining for this Court to decide. But should the court reverse some or all of those
determinations regarding liability, it will be necessary to reach the indemnification and
contribution claims. Given the complexities of the liability issues and Plaintiff’s clear desire to
challenge this Court’s findings on those issues as against Bankers, Everest, and EverSports, the
Court finds it appropriate to certify those liability decisions for immediate appeal.
CONCLUSION
For the foregoing reasons, good cause appearing, it is
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ORDERED that Plaintiff’s Motion for Entry of Final Judgment Under Rule 54(b) be, and
the same hereby is, GRANTED, and it is
FURTHER ORDERED that, there being no just reason for delay, final judgment is entered
in favor of Defendants Everest Indemnity Insurance Company and EverSports & Entertainment
Insurance, Inc. and Bankers Insurance, LLC on all of Plaintiff Sinmier LLC’s claims asserted
against them in this action. See Docs. 410, 412.
s/ James R. Knepp II
UNITED STATES DISTRICT JUDGE
Dated: December 2, 2025
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