Geurden et al v. Quantum Transportation LP et al

Filing 72

ORDER: IT IS ORDERED that the motion to supplement reply to motion for entry of stipulated judgment is GRANTED (Doc. 71 ). IT IS FURTHER ORDERED that the motion for entry of stipulated judgment is DENIED (Doc. 66 ). IT IS FURTHER ORDERED that the settling parties will advise the Court of whether they are proceeding with the settlement by April 11, 2018 [see attached Order for details]. Signed by Senior Judge James A Teilborg on 3/28/18. (MAW)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Yves Geurden, et al., Plaintiffs, 10 11 ORDER v. 12 No. CV-16-00642-PHX-JAT Quantum Transportation LP, et al., 13 Defendants. 14 15 Pending before the Court is Plaintiff’s Motion for Entry of Stipulated Judgment 16 (Doc. 66). Intervenors have responded, (Doc. 68), and Plaintiff has replied (Doc. 69). 17 Plaintiff has also filed a motion to supplement her reply (Doc. 71). The Court now rules 18 on the motions. 19 I. Background 20 On October 13, 2014, Vahik Alaverdyan fell asleep at the wheel of his tractor and 21 collided into Vincent Guerden. (Doc. 48 at 2). Geurden died as a result of this collision. 22 (Id.) During settlement negotiations, Plaintiff Yves Guerden (“Plaintiff”), demanded $7 23 million from Defendants Vahik Alaverdyan and Quantum Transportation L.P. 24 (“Defendants”). (Doc. 66-4 at 2). Following this demand, Hallmark American Insurance 25 Company (“Hallmark”), one of Defendants’ insurers, sent a letter to the Greenwich 26 Insurance Company (“Greenwich”) on February 3, 2017, demanding that Greenwich 27 “tender its policy limits for settlement.” (Id.) On March 9, 2017, Greenwich wrote two 28 letters denying that it had any “duty to defend and/or indemnify” Defendants at that time. 1 (Doc. 66-1); (Doc. 66-2). Greenwich further asserted that its insurance policy was excess 2 to policies of other insurers that were currently providing a defense in this litigation. 3 (Doc. 66-1 at 6). In response to Greenwich’s letters, Plaintiff and Defendants agreed to 4 enter into a stipulated judgment on June 26, 2017. (Doc. 42). In this stipulation, the 5 parties acknowledged that they were entering into a “Damron Agreement” and requested 6 that the Court grant default judgment. (Doc. 42). On June 28, 2017, the Court inquired 7 whether it had the duty to inquire into the reasonableness of the settlement agreement 8 before entering judgment. (Doc. 43). On July 12, 2017, Greenwich Insurance Company 9 and XL Specialty Insurance Company (“XL”) (together, “Intervenors”) moved to 10 intervene in this matter, opposing the Court’s entry of the stipulated judgment. (Docs. 46 11 and 47). Believing that neither party’s briefs adequately addressed whether Intervenors 12 were entitled to a reasonableness hearing, the Court denied the stipulated judgment 13 without prejudice and ordered supplemental briefing on two issues: (1) when is an excess 14 insurance carrier’s duty to defend triggered? And (2) even if such an insurer had no duty 15 to defend, may they recant a prior decision on which the parties relied in reaching a 16 settlement? 17 18 II. Discussion a. Legal Standard 19 When an insurer refuses to defend or denies coverage to its insured, the insured 20 may enter into a settlement agreement with a plaintiff that “admits to liability and assigns 21 to a plaintiff his or her rights against the liability insurer . . . in exchange for a promise . . 22 . not to execute the judgment against the insured.” Safeway Ins. Co. v. Guerrero, 106 23 P.3d 1020, 1022 (Ariz. 2005). In Arizona, these settlement agreements may take two 24 forms: Damron and Morris agreements. Id. at 1022 n.1. Damron agreements are entered 25 into because of “an insurer’s refusal to defend the insured.” Id. (citing Damron v. Sledge, 26 460 P.2d 997 (1969)). When parties enter into a Damron agreement, the Court does not 27 conduct a reasonableness inquiry. Parking Concepts, Inc. v. Tenney, 83 P.3d 19, 22 n.3 28 (Ariz. 2004). Morris agreements, on the other hand, “can be prompted by a number of -2- 1 circumstances.” Safeway Ins. Co., 106 P.3d at 1022 n.1 (collecting cases). Unlike 2 Damron agreements, the Court must inquire into Morris agreements for their 3 reasonableness. United Servs. Auto. Ass’n v. Morris, 741 P.2d 246, 250–51 (Ariz. 1987); 4 Ariz. Property & Cas. Ins. Guar. Fund v. Helme, 735 P.2d 451, 460 (Ariz. 1987). 5 Arizona courts explain that these agreements are necessary to protect an insured 6 whenever he is “placed in a precarious position” by his insurer’s choice to either defend 7 under a reservation of rights or to refuse to defend altogether. Safeway Ins. Co., 106 P.3d 8 at 1024 (“Even though the insurer is providing a defense to the claim, the insured faces 9 the possibility that any judgment, even one within policy limits, may not be covered by 10 the policy.”) (citing Parking Concepts v. Tenney, 83 P.3d 19, 22 (2004)). When the 11 insurer makes such a choice, it deprives the insured of the “security from financial loss 12 which he may sustain from claims against him” that he purchased. Helme, 735 P.2d at 13 459. Thus, the law does not require the insured to risk continued exposure “to the sharp 14 thrust of personal liability,” but instead allows him to enter into an agreement to protect 15 himself. Damron, 460 P.2d 997 at 999 (quoting Critz v. Farmers Ins. Grp., 230 Cal. Rptr. 16 401, 408 (Cal. Ct. App. 1964)). 17 At the same time, Arizona courts strive to avoid placing an insurer “between 18 Scylla and Charybdis” by forcing it to “either give up its right to raise tenable coverage 19 defenses or its right to insist on full application of the cooperation clause.” Morris, 741 20 P.2d at 251–52 (citing McGough v. Ins. Co., 691 P.2d 738, 745 (Ariz. Ct. App. 1984)). 21 Courts also recognize the danger that an insured might enter into “collusive settlements 22 that bear little relation to the underlying case,” because he and the plaintiff have “little 23 incentive to minimize the amount of the [stipulated] judgment.” Leflet v. Redwood Fire & 24 Cas. Ins. Co., 247 P.3d 180, 183 (Ariz. Ct. App. 2011). In order to avoid these 25 undesirable outcomes, and to properly balance the equities between insurer and insured, 26 Arizona courts “permit an insurer to raise the coverage defense . . . while at the same time 27 protecting the insurer from unreasonable agreements between the claimant and the 28 insured.” Morris, 741 P.2d at 252. Thus, a settlement agreement that falls under the -3- 1 Morris rubric will bind the insurer “only if the insurer has declined an opportunity to 2 defend and the insured establishes that the settlement was reasonable and prudent.” Webb 3 v. Gittlen, 174 P.3d 275, 281 (Ariz. 2008) (citing Morris, 741 P.2d at 253). 4 b. Anticipatory Breach 5 Plaintiff first alleges that because XL anticipatorily repudiated all of its duties to 6 the insured it is not entitled to a reasonableness hearing. (Doc. 66 at 2). Intervenors 7 disagree and argue that “Helme does not support the proposition that an insurer’s 8 anticipatory repudiation of its policy obligations permits an insured to enter an 9 unreasonable settlement with the insured.” (Doc. 68 at 11). This Court agrees with 10 Intervenors’ interpretation of the law. 11 An insured may enter into a Morris-type agreement when his insurer anticipatorily 12 repudiates contractual duties it owes him. See Helme, 735 P.2d at 459. However, an 13 insurer’s anticipatory repudiation of a contractual duty does not permit the insured to 14 “enter into any type of agreement or take any type of action that may protect him from 15 financial ruin. . . . The insurer’s breach . . . permits him to take reasonable steps to save 16 himself. Among those steps is making a reasonable settlement with the claimant.” Id. at 17 460 (emphasis added); see also Safeway Ins. Co., 106 P.3d at 1022 n.1 (characterizing 18 Helme as a situation giving rise to a Morris agreement). 19 Plaintiff argues that Helme stands for the proposition that “once an insurer 20 breaches its duty to its insured by way of a complete denial of coverage and refusal to 21 defend or indemnify, the insured is not required to come back to the insurer for 22 permission to enter a Damron agreement.” (Doc. 66 at 4). This argument overstates 23 Helme’s sweep. Arizona courts have been careful to limit Damron agreements to 24 situations where the insurer actually breaches its duty to defend. See Safeway Ins. Co., 25 106 P.3d at 1022 n.1; Mora v. Phoenix Indem. Ins. Co., 996 P.2d 116, 120 (Ariz. Ct. App. 26 1999) (explaining that an insurer only forfeits its right to intervene when it commits a 27 “substantial” breach that is “antithetical to the essential purpose of the insurance 28 contract”); Anderson v. Martinez, 762 P.2d 645, 649 (Ariz. Ct. App. 1988) (explaining -4- 1 that only refusal to defend waives an insurer’s right to intervene). Therefore, even if an 2 insurer breaches all three of its duties to the insured, the operative duty for purposes of 3 whether a Damron agreement is permissible is the duty to defend. See Mora, 996 P.2d at 4 120 (explaining that an insurer asserting no duty to defend its insured, is also implying 5 that it owes no duty to indemnify, and that it therefore has no interest in the litigation). 6 Embodying this careful approach, Helme made clear that an insurer’s anticipatory 7 repudiation of any of its obligations does not give an insured license to “enter into any 8 type of agreement or take any type of action that may protect him from financial ruin.” 9 Helme, 735 P.2d at 460. Rather, an anticipatory repudiation—even of the duty to 10 defend—only allows an insured to enter into “a reasonable settlement with the claimant.” 11 Id. 12 Plaintiff further argues that because Helme used “the same test for a settlement 13 agreement in the Damron case” that it was free to enter into a Damron agreement “when 14 XL anticipatorily breached all its obligations to its insureds.” (Doc. 69 at 6). Neither 15 19 Helme, nor subsequent cases, support Plaintiff’s contention. The applicable passage is: [T]he insurer’s breach narrows the insured’s obligations under the cooperation clause and permits him to take reasonable steps to save himself. Among those steps is making a reasonable settlement with the claimant. So long as that settlement agreement is neither fraudulent, collusive, nor otherwise against public policy, the insured has not breached the cooperation clause. 20 Helme, 735 P.2d at 461. Plaintiff contends that the third sentence in this passage defines 21 the word “reasonable,” used in the second sentence, as “neither fraudulent, collusive, nor 22 otherwise against public policy.” (Doc. 69 at 6). But, it is more likely that when the court 23 used the words “that settlement agreement” it was referring to the “reasonable 24 settlement” it discussed in the preceding sentence. The opinion more naturally reads as 25 requiring settlement agreements that are reasonable and neither fraudulent, collusive, nor 26 otherwise against public policy—the standard used in Morris. Morris, 741 P.2d at 254. 27 Second, even if it were true that the Helme court thought it was applying the test used in 28 Damron, subsequent opinions of the Arizona Supreme Court hold that anticipatory 16 17 18 -5- 1 breaches give rise to Morris agreements. Safeway Ins. Co., 106 P.3d at 1022 n.1. For 2 these reasons, the Court finds that, even if Intervenors anticipatorily breached their 3 contractual duties, they would still be entitled to a reasonableness hearing. 4 5 c. Trigger i. Servco Does Not Apply 6 Citing no Arizona case law discussing when an insurer’s duty to defend is 7 triggered, Plaintiff argues that “[o]ther 9th Circuit courts have examined the issue and 8 determined that the underlying limits of liability need only be tendered, and not actually 9 paid in order to trigger the excess carrier’s duty to defend.” (Doc. 69 at 3) (citing Pac. 10 Employers Ins. Co. v. Servco Pac., Inc., 273 F. Supp. 2d 1149, 1154 (D. Haw. 2003). 11 First, the Court notes that Servco provides little precedential value in this case because 12 that case applied the law of Hawaii, but this Court must apply Arizona law. Servco, 273 13 F. Supp. 2d at 1154. Second, a critical factor in Servco was that “no published Hawaii 14 case ha[d] ruled on the meaning of ‘exhaustion’ in an excess insurance context.” Id. 15 Arizona courts, on the other hand, hold that “[u]ntil a primary insurer offers its policy 16 limit, the excess insurer does not have a duty to evaluate a settlement offer, to participate 17 in the defense, or to act at all.” Twin City Fire Ins. Co. v. Burke, 63 P.3d 282, 287 (Ariz. 18 2003) (citing Cont’l Cas. Co. v. Royal Ins. Co., 268 Cal. Rptr. 193, 197 (Cal. Ct. App. 19 1990); and then citing Keck, Mahin & Cate v. Nat’l Union Fire Ins. Co., 20 S.W.3d 692, 20 700–01 (Tex. 2000)). The Arizona standard for exhaustion requires a primary insurer to 21 offer its policy limit, but the excess insurer in Servco argued that the duty to defend “is 22 not triggered unless and until the primary carrier pays its limits by either a judgment or 23 settlement of the underlying claim[,]” a stricter standard. Compare id., and Chartis 24 Specialty Ins. Co. v. Scott Homes Multifamily Inc., 2016 WL 9525583, at *6 (D. Ariz. 25 2016), with Servco, 273 F. Supp. 2d at 1154. Thus, the Court finds that Servco does not 26 control the outcome of this case. 27 28 ii. Triggering an Excess Insurer’s Duty to Defend Plaintiff further contends that, under Arizona law, Travis Warriner’s letter of -6- 1 February 3, 2017, triggered Intervenors’ duty to defend because it clearly implied “that 2 both Wesco and Hallmark planned to tender their policy limits, and that the damages 3 would reach the XL policy.” (Doc. 66 at 7); (Doc. 66-4).1 Intervenors maintain that, 4 because “an excess insurer’s duty to defend is not triggered until the primary coverage is 5 actually exhausted through payment of the claim,” (Doc. 68 at 7), their policies were not 6 triggered until the Settlement Agreement of June 21, 2017, and they did nothing to breach 7 their duty to defend after that point. (Id. at 8) (citing Doc. 47-6, ¶34).2 8 “An insurer’s duty to defend is separate from, and broader than the duty to 9 indemnify.” Quihuis v. State Farm Mut. Auto Ins. Co., 344 P.3d 719, 727 (Ariz. 2014). A 10 “primary insurer has the duty to defend until its limits are exhausted.” Columbia Cas. Co. 11 v. U.S. Fidelity & Guar. Co., 870 P.2d 1200, 1201–02 (Ariz. Ct. App. 1994). Thus, an 12 excess insurer has no duty to defend its insured unless the primary insurer exhausted its 13 policy limit to defend its insured. See, e.g., McGough, 691 P.2d at 744–45 (Ariz. Ct. App. 14 1984) (concluding it was reasonable for an excess insurer to delay intervening in the 15 defense of its insured until it became apparent that the primary insurer was considering 16 paying its entire policy limit and withdrawing from the case). 17 The Court has examined the letter of February 3, 2017, and finds that it does not 18 unambiguously inform the excess insurer that the primary insurer was prepared to offer 19 its policy limits to provide a defense, but instead simply informs Intervenors that 20 “Plaintiffs’ last settlement demand was $7 million” and that “Greenwich’s failure to 21 tender its policy limits for settlement is unreasonable.” (Doc. 66-4 at 2) (emphasis 22 23 24 25 26 1 Plaintiff cites a treatise for the proposition that an excess insurer’s coverage is triggered “when a primary insurer . . . is willing to contribute its limit of liability to a settlement and makes that fact known to the excess insurer.” (Doc. 66 at 7) (quoting Allan D. Windt, Insurance Claims and Disputes § 5:26 (4th ed. 2001)). But this standard only applies to the duty to settle, not to the duty to defend. See Allan D. Windt, Insurance Claims and Disputes ch. 4 (6th ed. 2018). 2 27 28 Although Intervenors appear to argue that exhaustion requires actual payment, they do not contend that their duty to defend arose on August 31, 2017, when it became clear that the policies had been exhausted. (Doc. 62 at 4). Rather, Intervenors contend their duty arose on June 21, 2017, and that they did nothing to breach their duty after that point. (Doc. 68 at 9). -7- 1 added). It is certainly difficult to see how a letter from Hallmark’s representative 2 demanding that Greenwich tender its policy limits could be construed as an offer from 3 Hallmark to pay its policy limits. In fact, the letter still claims that Hallmark’s coverage 4 was excess to Greenwich’s policy. (Id. at 1). Moreover, the letter provides that “the value 5 of the case [was] possibly . . . in excess of Wesco’s and Greenwich’s policy limits,” but 6 states nothing about Hallmark being prepared to offer its own policy limits to defend the 7 insured. (Id. at 2). Furthermore, this letter only demanded that Greenwich “tender its 8 policy limits for settlement.” (Id.) (emphasis added). If this letter triggered any duty at all, 9 it triggered the implied duty to treat settlement offers with equal consideration and the 10 breach of that duty only authorizes an insured to enter into a Morris agreement. Safeway 11 Ins. Co., 106 P.3d at 1024 (citing Helme, 735 P.2d at 459); Mora, 966 P.2d at 120. The 12 first time that Intervenors were actually placed on notice that the primary insurers had 13 offered their policy limits was the June 21, 2017 Settlement Agreement. (Doc. 47-6). 14 Therefore, Intervenors duty to defend arose, at the earliest, on that date, and their 15 subsequent actions did not breach this duty so as to prevent them from receiving a 16 reasonableness hearing under Morris. 17 This result comports with the function of excess insurance policies as well as the 18 purposes of the Damron/Morris doctrine. Excess insurers do not even have the right to 19 participate in the litigation unless and until the primary policy is exhausted. Cont’l Cas. 20 Co., 268 Cal. Rptr. at 196. And, as the Supreme Court of Texas explained in an opinion 21 cited favorably in Burke: Excess insurers . . . provide relatively inexpensive insurance with high policy limits . . . . [while] primary carrier[s] generally provide[] a much lower amount of coverage, but must insure against what is likely to be a greater number of claims . . . . Because the primary insurer’s duty to defend extends to covered claims without regard to their amount, an excess insurer’s duty to defend is not typically invoked merely because a claim has been asserted against the insured in excess of primary limits. 22 23 24 25 26 27 28 Keck, Mahin & Cate 20 S.W.3d at 700–01 (Tex. 2000). That the excess insured has no right or ability to control its insured’s defense while the primary insurer is still involved in the case, implicates a core tenet of the Damron/Morris doctrine. An insurer, by -8- 1 refusing to defend or defending under a reservation of rights, gives up its exclusive 2 control of the defense of its insured and does so at its own risk. See Morris, 741 P.2d at 3 252; Mora, 996 P.2d at 121; see also Damron, 460 P.2d at 1001. But, an insurer should 4 not be made to give up that which it does not have. Furthermore, as explained above, 5 Arizona courts have limited Damron’s applicability in order to avoid the risk of inflated 6 settlements. See, e.g., Safeway Ins. Co., 106 P.3d at 1022 n.1 (distinguishing Morris 7 agreements, which “can be prompted by a number of circumstances,” from Damron 8 agreements, which require a breach of the duty to defend); Webb, 174 P.3d at 281 (stating 9 that Morris balanced the competing interests of protecting an insured from liability and 10 protecting an insured from inflated settlements). The very letter that Plaintiff relies on as 11 the crux of her argument provides an illustration of why this concern is warranted. The 12 letter states that “Plaintiffs’ last settlement demand was $ 7 million.” (Doc. 66-4 at 2). 13 But, the stipulated judgment in this case totals $25 million. (Doc. 66-7 at 2). That amount 14 is five times the policy limit of Greenwich’s excess insurance policy. (Doc. 66-1 at 4); 15 (Doc. 66-2 at 3). The Court does not express any opinion regarding the reasonableness of 16 this settlement,3 but this large amount raises the question of whether the Plaintiff is using 17 the stipulated judgment “to promote the transformation of underlying contract and tort 18 claims into bad faith claims at inflated values.” Leflet, 247 P.3d at 301. Requiring a 19 reasonableness hearing in this situation strikes the proper balance between the interests of 20 the insurer and the insured, for the insured will still be able to bind the insurer to the 21 damages that “a reasonably prudent person in the insureds’ position would have settled 22 for on the merits of the claimant’s case.” Morris, 741 P.2d at 254 (emphasis in the 23 original) (citing Miller v. Shugart, 316 N.W.2d 729, 735 (Minn. 1982)). 24 Accordingly, the Court finds that the duty to defend was not triggered until June 25 21, 2017, that Intervenors did not breach that duty to defend after that date, and that they 26 are therefore entitled to a reasonableness hearing. 27 3 28 Indeed, the letter does contain some evidence that a large settlement valuable may be reasonable, specifically that the defense counsel advised that a jury could award over $24 million in punitive damages alone. (Doc. 66-4 at 2). -9- 1 d. The Ability of an Insurer to Recant a Prior Decision on which 2 the Parties Relied. 3 In response to this Court’s second inquiry, the Parties have focused on the issues 4 of waiver and equitable estoppel. (Doc. 66 at 10–15); (Doc. 68 at 12–18); (Doc. 69 at 9– 5 12). Because waiver requires actual intent to abandon or surrender a known right, and 6 Greenwich’s letters denying coverage both expressly reserved the right to raise future 7 coverage defenses and conditioned that denial on information learned up until that point 8 in time, waiver cannot operate to bar Intervenors. See Desert Ridge Resort LLC v. 9 Occidental Fire & Casualty Company, 141 F. Supp. 3d 962, 970 (D. Ariz. 2015) (finding 10 denial letters that “expressly reserved the right to raise additional grounds for denial as 11 more facts become available” are “inconsistent with an intent to waive the defenses”). 12 “Equitable estoppel applies if (1) the party to be estopped intentionally or 13 negligently induces another to believe certain material facts, (2) the induced party takes 14 action in reliance on its reasonable belief of those facts and (3) the induced party is 15 injured by so relying.” Pueblo Santa Fe Townhomes Owners’ Ass’n v. Transcontinetnal 16 Ins. Co., 178 P.3d 485, 493 (Ariz. Ct. App. 2008) (citing Joy Enters., Inc. v. Reppel, 537 17 P.2d 691, 594 (Ariz. 1975)). Moreover, the alleged injury or prejudice “must be actual 18 and substantial, and not merely technical or formal.” Weiner v. Romley, 381 P.2d 581, 19 583 (Ariz. 1963). 20 Normally, when disputes over insurance contracts arise, estoppel arguments are 21 raised as between an insurer and its insureds, or between an insurer and a third-party 22 assignee of the insured’s claims who stands in the shoes of the insured. See, e.g., Darner 23 Motor Sales, Inc. v. Universal Underwriters Ins. Co., 882 P.2d 388, 399–401 (Ariz. 24 1984) (dispute between insurer and insured); Pueblo Santa Fe, 178 P.3d at 492–93 25 (allowing assignee to assert insured’s right to estoppel claim). Here, though, Plaintiff 26 asserts equitable estoppel based on her own detrimental reliance on Greenwich’s letters 27 denying coverage because she would not have settled her claim otherwise. (Doc. 66 at 28 12). She argues that she is even further prejudiced because a reasonableness hearing - 10 - 1 might require her to “re-live the gruesome photos of their son’s body . . . along with the 2 painful reminders of the punitive aspects of the case.” (Doc. 69 at 12). Plaintiff provides 3 that her reliance stems from the fact that “XL provided its denial of coverage letters 4 approximately two weeks prior to the mediation.” (Doc. 69 at 10). 5 First, the Court notes that, under Arizona law, “equitable estoppel is available only 6 as a defense.” Gorman v. Pima Cty., 287 P.3d 800, 804 n.4 (Ariz. Ct. App. 2012) 7 (quoting Tiffany Inc. v. W.M.K. Transit Mix, Inc., 493 P.2d 1220, 1224 (Ariz. Ct. App. 8 1972)). Therefore, it is not clear that Plaintiff can even invoke equitable estoppel in this 9 context. Second, even if Plaintiff can invoke equitable estoppel, the Court finds that her 10 reliance on Greenwich’s letters denying coverage was not reasonable. Plaintiff’s reliance 11 was not reasonable because, as explained above, Greenwich’s letters both expressly 12 reserved the right to raise future coverage defenses and conditioned that denial on 13 information learned up until that point in time. Because these letters did not constitute an 14 absolute and final denial of coverage, which Plaintiff claims she believed they did when 15 she settled, but instead indicated that Greenwich’s decision might later change, Plaintiff’s 16 reliance on them is not reasonable. See Guberman v. William Penn Life Ins. Co., 146 17 A.D.2d 8, 13–14 (N.Y. App. Div. 1989) (“Where the insurer expressly states that its 18 assertion of one defense should not be construed as a waiver of other defenses, it is 19 difficult to imagine how, if at all, the plaintiff could have been ‘misled . . . into acting on 20 a reasonable belief that the company had waived some provision of the policy.’”) 21 (quoting Kiernan v. Dutchess Cty. Mut. Ins. Co., 44 N.E. 698, 699 (N.Y. 1896)). 22 Furthermore, the timing of Greenwich’s denial letters is more indicative of a refusal to 23 settle the case, not a refusal to defend the matter altogether—the only circumstance under 24 which a Damron agreement is permissible. 25 Accordingly, the Court finds that neither waiver nor estoppel apply to preclude the 26 Intervenors from recanting a prior denial of coverage and now defending under a 27 reservation of rights. 28 - 11 - 1 III. 2 Based on the foregoing, 3 IT IS ORDERED that the motion to supplement reply to motion for entry of 4 5 6 7 8 9 10 Conclusion stipulated judgment is GRANTED (Doc. 71).4 IT IS FURTHER ORDERED that the motion for entry of stipulated judgment is DENIED (Doc. 66). IT IS FURTHER ORDERED that the settling parties will advise the Court of whether they are proceeding with the settlement by April 11, 2018. IT IS FURTHER ORDERED that if the settling parties decline to proceed with the settlement, they will comply with the following schedule: 11 The party with the burden of proof shall disclose experts by May 4, 2018. 12 The party without the burden of proof shall disclose its experts by 13 June 4, 2018. 14 Rebuttal expert disclosures shall be made by June 25, 2018. 15 Discovery shall close by July 25, 2018. 16 Dispositive motions are due no later than August 24, 2018. 17 Trial shall is set for March 5, 2019. 18 IT IS FURTHER ORDERED that if the settling parties do proceed with their 19 settlement, all parties including the intervenor will comply with the following schedule: 20 The party with the burden of proof shall disclose experts by May 4, 2018. 21 The party without the burden of proof shall disclose its experts by 22 June 4, 2018. 23 24 25 26 27 28 4 Plaintiff seeks to supplement her motion for entry of stipulated judgment with evidence of Intervenors March 09, 2017, letter to Dole, which contained “reservation of rights language . . . [that] is clear and unequivocal.” (Doc. 71-1at 2). Because of this difference in language, Plaintiff argues that Intervenors’ letters to Quantum and Alaverdyan cannot be considered “reservation of rights” letters. (Id.) The Court’s analysis does not at all rely on characterizing the Intevenors’ letters to Quanum and Alaverdyan as “reservation of rights” letters. Therefore, although the Court grants the motion to supplement, the Court finds that the supplemental evidence does not alter its analysis. Furthermore, because the supplemental evidence does not alter the Court’s analysis, the Court need not wait to allow Intervenors to respond. - 12 - 1 Rebuttal expert disclosures shall be made by June 25, 2018. 2 Discovery shall close by July 25, 2018. 3 The parties shall file a joint notice of the estimated length of the 4 reasonableness hearing no later than April 30, 2018. 5 The reasonableness hearing is set for Tuesday, September 25, 2018. 6 Dated this 28th day of March, 2018. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 13 -

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