California Dairies, Inc. vs. RSUI Indemnity Co.

Filing 38

ORDER Granting in Part and Denying in Part Defendant's Motion to Dismiss the First Amended Complaint, signed by Judge Oliver W. Wanger on 9/16/09. (Verduzco, M)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ­ FRESNO

CALIFORNIA DAIRIES, INC., a California Corporation, Plaintiff, vs.

RSUI Indemnity Company, Defendant.

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Case No. 1:08-CV-00790-OWW-GSA (Assigned to the Hon. Oliver W. Wanger, Courtroom 3) ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS THE FIRST AMENDED COMPLAINT

TO ALL PARTIES HEREIN AND THEIR RESPECTIVE ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that, on August 3, 2009 at 10:00 a.m., Defendant RSUI Indemnity Company's ("RSUI") Motion to Dismiss Plaintiff's First Amended Complaint came on for scheduled hearing in courtroom 3 of the above entitled court, the Honorable Oliver W. Wagner, Judge presiding. Based on the papers submitted by the parties and upon hearing oral argument, the Court rules as follows: ///

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1. The Court finds that RSUI is not estopped from advancing Exclusion 7 as a defense to coverage. 2. The Court finds that it is not unreasonable to infer from the allegations of the FAC that an implied waiver occurred. Therefore, defendant's motion to dismiss is denied

inasmuch as the allegations contained in the FAC sufficiently allege an implied waiver of Exclusion 7. 3. The Court finds that there are no causes of action or other allegations related to any purported misrepresentations, failure to provide/enforce company rules, negligence, or civil rights violations. As such, the exception (for "Employment Practices Claims")

provided under Exclusion 7 is inapplicable to the Underlying Action. Therefore, because the claims raised in the Underlying Action are between "Insureds" (both Gonzalez and California Dairies are "Insureds") and are not based on an "Employment Practices Claim," Exclusion 7 specifically excludes coverage for the Underlying Action. 4. The Court grants RSUI's request for judicial notice. 5. The Court admits into evidence RSUI's exhibits in support of the motion to dismiss the FAC. 6. The Court's Order Re: Defendant's Motion to Dismiss the First Amended Complaint dated August 11, 2009 is incorporated herein by reference.

IT IS SO ORDERED: Dated: September 16, 2009 /s/ OLIVER W. WANGER Honorable Oliver W. Wagner United States District Court Judge

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