Owners Insurance Company v. H. W. Wade & Company, Inc. et al

Filing 43

OPINION AND ORDER granting Freeman Defendants' 11 MOTION to Dismiss with respect to the issue of indemnification; denying said motion in all other respects; that this court's examination of indemnification would be premature and as a result the court will address only whether plaintiff Owners Insurance Company has a duty to defend defendant H.W. Wade & Company, Inc. Signed by Honorable Myron H. Thompson on 1/30/2009. (Attachments: # 1 Civil Appeals Checklist)(cc, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION OWNERS INSURANCE COMPANY, a stock insurance company incorporated and organized under the laws of the State of Ohio, ) ) ) ) ) ) Plaintiff, ) ) v. ) ) H.W. WADE & COMPANY, INC., ) an Alabama corporation; ) CHARLES M. FREEMAN, III, ) an individual; and CYNTHIA ) FREEMAN, an individual, ) ) Defendants. )

CIVIL ACTION NO. 2:08cv343-MHT (WO)

OPINION AND ORDER Based on the on-the-record representations made on January 29, 2009, it is ORDERED that the Freeman

defendants' motion to dismiss (doc. 11) is granted with respect to the issue of indemnification and is denied in all other respects. The state court has not yet determined whether and to what extent defendant H.W. Wade & Company, Inc. is liable to the Freemans defendants. Moreover, the state court

has not decided many of the crucial factual issues that will be relevant to the inquiry of indemnification. This

court's examination of indemnification would therefore be premature. 1322, 1325 See Canal Insurance v. Cook, 564 F.Supp.2d (M.D. Ala. 2008) (Thompson, v. J.) (citing &

cases);

Hartford

Casualty

Insurance

Merchants

Farmers Bank, 928 So.2d 1006, 1013 (Ala. 2005) ("Whether there is a duty to indemnify under the policy will depend on the facts adduced at the trial," and "thus, we do not reach ... the issue whether [the insurance company] has a duty to indemnify..."). As a result, the court will

address only whether plaintiff Owners Insurance Company has a duty to defend Wade. DONE, this the 30th day of January, 2009. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE