Appeals on Wheels to hear case involving strip clubs at casino

Court of Appeals of Indiana judges are on the road again this week for traveling oral arguments, this time preparing to hear arguments about compelling arbitration between dozens of models and two Indiana strip clubs.

Judges Melissa May, Terry Crone, and Elizabeth Tavitas on Friday will sit on the appellate panel hearing arguments in the case of Illinois Casualty Co. v. Jessica Burciaga et al., 22A-PL-432.

Arguments will begin live at 1:30 p.m. CT at the Blue Chip Casino in Michigan City.

The case, which stems from an underlying lawsuit filed in the U.S. District Court for the Northern District of Indiana, Burciaga, et al v. B & S of Fort Wayne Inc, et al., 1:20-cv-00367, involves 33 professional models who claim their photographs were used for years without permission by two strip clubs for advertisement purposes.

Specifically, the models assert the clubs posted those advertisements on their social media accounts between December 2014 and October 2020.

The models, in their previous federal complaint, alleged that the clubs had improperly used their images in violation of the Lanham Act and Indiana’s Right of Publicity statute. The clubs’ actions, the models asserted, constituted unjust enrichment.

The parties entered into a settlement agreement and consent judgment in May 2021 in the federal litigation, in which Northern District Court Judge Holly Brady awarded the models $1,917,825 against the clubs.

Illinois Casualty Company, the clubs’ insurer, sought declaratory judgment in response to the settlement award, arguing that it does not owe any duty to defend or to indemnify the defendants. It also asserted that Illinois Casualty has no obligation to pay any portion of the consent judgment entered in the underlying suit.

In response, the clubs argued that as a result of the wrongful denial of duty to defend or indemnify, Illinois Casualty is directly liable to the models for the district court’s settlement judgment.

The models then sought to compel arbitration, which the Allen Superior Court granted. The models had asserted that Illinois Casualty’s policies with the clubs contain an arbitration provision and that the models are therefore entitled to arbitration of the assigned claims.

Illinois Casualty denied that the policies at issue provided coverage for the models’ claims, arguing in part that the policies contain an anti-assignment provision and a provision barring consent judgments.

The arguments will not be livestreamed, but a recording of the arguments will be posted online at a later date.

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