St Paul Fire and Marine Insurance Company v. Town of Gurley Alabama et al

Filing 52

ORDER ADOPTING REPORT AND RECOMMENDATIONS;as it relates solely to the duty to defend, St. Pauls motion, 33 , is DENIED, and the Town and M&Ns motions, 32 and 36 , are GRANTED ; the motion to clarify, 48 , is GRANTED, and the case is STAYED pending the resolution in M&N Materials, Inc., Case No. 5:14-cv-00184-CLS.. Signed by Judge Abdul K Kallon on 9/4/2015. (KAM)

FILED
2015 Sep-08 AM 10:02
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION

ST. PAUL FIRE AND MARINE
INSURANCE COMPANY,
Plaintiff,
v.
TOWN OF GURLEY,
ALABAMA and M&N
MATERIALS, INC.,

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Civil Action Number
5:14-cv-00613-AKK

Defendant.

ORDER
On July 13, 2015, the magistrate judge entered a report and
recommendation, doc. 47, regarding cross-motions for summary judgment filed by
plaintiff St. Paul Fire and Marine Insurance Company (“St. Paul”), doc. 33,
defendant Town of Gurley (“the Town”), doc. 32, and defendant M&N Materials,
Inc. (M&N), doc. 36. The parties were allowed fourteen (14) days in which to file
objections to the recommendations made by the magistrate judge. On July 27,
2015, M&N filed objections to the magistrate judge’s report and recommendation.
Doc. 49. On August 7, 2015, St. Paul filed a response to M&N’s objections to the
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report and recommendation. Doc. 51.
Having reviewed the pleadings, the briefs, the magistrate’s report and
recommendation, and M&N’s objections thereto, the court hereby ADOPTS the
report of the magistrate judge.
Accordingly, as it relates solely to the duty to defend, St. Paul’s motion,
doc. 33, is DENIED, and the Town and M&N’s motions, docs. 32 and 36, are
GRANTED. With respect to the indemnification issue, because whether there is a
duty to indemnify under the policy will depend on a finding of liability in the
underlying action, M&N Materials, Inc. v. Town of Gurley, Alabama, et al., Case
No. 5:14-cv-00184-CLS, the issue is premature. Therefore, the court agrees with
St. Paul that the court should stay the issue of indemnification. In that respect, the
motion to clarify, doc. 48, is GRANTED, and the case is STAYED pending the
resolution in M&N Materials, Inc., Case No. 5:14-cv-00184-CLS.
DONE this 4th day of September, 2015.
________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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