American Western Home Insurance Company v. Johnson et al

Filing 32

ORDER denying 21 Motion to Dismiss for Lack of Jurisdiction; denying 22 Motion for Summary Judgment. See Order for specifics. Signed by Honorable Susan O. Hickey on September 16, 2014. (mll)

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IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS TEXARKANA DIVISION AMERICAN WESTERN HOME INSURANCE COMPANY VS. PLAINTIFF CASE NO. 4:11-cv-4071 STEVE JOHNSON, et al DEFENDANTS ORDER Before the Court are Plaintiff’s Motion for Summary Judgment (ECF No. 22) and Defendant Don Wolf’s Motion to Dismiss (ECF No. 21). This is an action seeking a declaratory judgment as to the rights and obligations of the parties pursuant to an insurance policy issued by Plaintiff. Plaintiff seeks a declaration from the Court regarding its contractual obligations to defend and indemnify Defendant-Insureds in cases before this Court and Arkansas state court: Kolbek, et al. v. Twenty First Century Holiness Tabernacle Church, et al., No. 4:10-cv-04124; Ondirsek, et al. v. Hoffman, No. 4:08-cv-04113; and Coie v. Alamo, et al., No. CV-2009-1854(V), Circuit Court of Sebastian County, Arkansas. Since the filing of the Second Amended Complaint (ECF No. 11), Motion for Summary Judgment, and Motion to Dismiss, the configuration of the cases underlying this declaratory judgment action has changed dramatically. The Defendant-Insureds who were parties in Kolbek, et al. v. Twenty First Century Holiness Tabernacle Church, et al., No. 4:10-cv-04124 have had the claims against them settled and/or dismissed. The final dismissal of all claims in Kolbek, et al. v. Twenty First Century Holiness Tabernacle Church, et al., No. 4:10-cv-04124 was affirmed by the Eighth Circuit Court of Appeals on September 11, 2014. Thus, for some of the Defendant-Insureds in this action, there may be no claims against them in an underlying suit that would implicate Plaintiffs’ insurance policies. In light of these developments, the Court finds that updated motions are necessary. Accordingly, Defendant Don Wolf’s Motion to Dismiss (ECF No. 21) is hereby DENIED WITHOUT PREJUDICE and Plaintiff’s Motion for Summary Judgment (ECF No. 22) is DENIED WITHOUT PREJUDICE. Any motions for summary judgment or motions to dismiss must be filed on or before October 14, 2014. The Court asks that the parties fully address the current disposition of each underlying cause of action referenced in the Second Amended Complaint as well as any newly filed actions that may implicate Plaintiff’s insurance policies. The Court also requests that the parties fully discuss, with supporting law, whether a justiciable controversy still exists as to the insurance coverage of Defendant-Insureds whose claims in the underlying suit(s) have been settled and/or dismissed.1 IT IS SO ORDERED, this 16th day of September, 2014. /s/ Susan O. Hickey Susan O. Hickey United States District Judge 1 It is worth noting that similar declaratory judgment actions against some of the same Defendant-Insureds have been voluntarily dismissed in light of the settlement agreement reached in Kolbek, et al. v. Twenty First Century Holiness Tabernacle Church, et al., No. 4:10-cv-04124. See Cameron Mutual Insurance Company v. Steve Johnson, et al, No. 4:11-cv-4051; National Liability & Fire Insurance Company v. Desiree Kolbek, et al, No. 4:12-cv-4126. 2

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