Assurance Company of America et al v. Lexington Insurance Company

Filing 16

STIPULATION and ORDER 15 for continuance signed by Judge William B. Shubb on 8/28/2009. Defendants' 9 Motion for Partial Summary Judgment of duty to defend is RE-SET for 9/28/2009 at 02:00 PM in Courtroom 5 (WBS). (Marciel, M)

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RAMIRO MORALES, #167947 ELIZABETH CELNIKER, #211652 MORALES FIERRO & REEVES 2300 Contra Costa Blvd., Suite 310 Pleasant Hill, CA 94523 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs ASSURANCE COMPANY OF AMERICA and MARYLAND CASUALTY COMPANY

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA, SACRAMENTO DIVISION

ASSURANCE COMPANY OF AMERICA and) MARYLAND CASUALTY COMPANY ) ) Plaintiffs, ) ) vs. ) ) LEXINGTON INSURANCE COMPANY, ) ) Defendant. ) ) ) ______________________________________ )

CASE NO.: 2:09-CV-01732-WBS-GGH STIPULATION AND [PROPOSED] ORDER REGARDING CONTINUATION OF HEARING ON MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO THE DUTY TO DEFEND Complaint Filed: Discovery Cut-Off: Motion Cut-Off: Trial Date: June 23, 2009 Not Yet Set Not Yet Set Not Yet Set

STIPULATION AND [PROPOSED] ORDER REGARDING CONTINUATION OF HEARING ON MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO THE DUTY TO DEFEND The Parties to this litigation, ASSURANCE COMPANY OF AMERICA and MARYLAND CASUALTY COMPANY (collectively "Zurich"), by and through its counsel of record Morales Fierro & Reeves, on the one hand, and LEXINGTON INSURANCE COMPANY ("Lexington"), by and through its counsel of record Herold & Sager, on the other hand, hereby stipulate as follows: /// /// ///
1 STIPULATION AND [PROPOSED] ORDER TO CONTINUE THE HEARING ON THE MOTION FOR PARTIAL SUMMARY JUDGMENT CASE NO. 2:09-CV-01732-WBS-GGH

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This action for declaratory relief and contribution involves the parties' respective rights and obligations under policies of commercial liability insurance with respect claims made against Dry Creek Lath & Plaster in connection with an underlying lawsuit captioned Syers Properties III v. I.C.E. Builders, Inc., et al., El Dorado County Superior Court Case No. PC20040180 ("the Syers Properties Action"). Initially, Lexington denied it owed any obligation to Dry Creek Lath & Plaster with respect to the Syers Properties Action. Lexington now agrees that it has, and had since the time of the initial tender of the Syers Properties Action to it, a duty to defend Dry Creek Lath & Plaster in the Syers Properties Action. The Parties, therefore, stipulate that Lexington owes, and since the date of tender owed, a duty to defend Dry Creek Lath & Plaster in the Syers Properties Action. Furthermore, the Parties stipulate that Lexington owes to Zurich its equitable share of the fees and costs Zurich incurred since the date of tender in defense of Dry Creek Lath & Plaster in the Syers Properties Action and, as the litigation of the Syers Properties Action continues, that Lexington owes a duty to contribute its equitable share of the fees and costs of Dry Creek Lath & Plaster's defense in the Syers Properties Action. It is Zurich's position that it is only appropriate to withdraw the pending Motion if there is a stipulation concerning both the duty to defend and the date on which the duty commenced. While Lexington disagrees with Zurich's position, the Parties are in the process of working on a stipulation to resolve the date of the initial tender after which Zurich will withdraw the pending Motion. Specifically, Zurich believes that the letter provided by Dry Creek's attorney and supporting declaration establishes that the tender date is January 19, 2005. Counsel for Lexington currently does not have adequate information to confirm that the January 19, 2005 letter was actually received by Lexington and the earliest document in the possession of counsel for Lexington demonstrating a tender is March 14, 2005. Therefore, the Parties hereby agree and stipulate that this Motion be continued for 30 days to allow the completion of a stipulation concerning the date on which the duty to defend commenced. ///

2 STIPULATION AND [PROPOSED] ORDER TO CONTINUE THE HEARING ON THE MOTION FOR PARTIAL SUMMARY JUDGMENT

CASE NO. 2:09-CV-01732-WBS-GGH

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IT IS SO STIPULATED.

Dated: August 28, 2009

MORALES FIERRO & REEVES

By: ___/s/________________________ Ramiro Morales, Esq., #167947 Elizabeth Celniker, Esq., #211652 Attorneys for Plaintiffs ASSURANCE COMPANY OF AMERICA and MARYLAND CASUALTY COMPANY

Dated:August 28, 2009

HEROLD & SAGER

By: ___/s/________________________ Andrew D. Herold, Esq., #178640 Joshua A. Zlotlow, Esq., #211399 Attorneys for Defendant LEXINGTON INSURANCE COMPANY

3 STIPULATION AND [PROPOSED] ORDER TO CONTINUE THE HEARING ON THE MOTION FOR PARTIAL SUMMARY JUDGMENT

CASE NO. 2:09-CV-01732-WBS-GGH

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: August 28, 2009 IT IS SO ORDERED.

[PROPOSED] ORDER Good cause appearing, the pending Motion for Partial Summary Judgment as to the Duty to Defend filed by Assurance Company of America and Maryland Casualty Company is continued to September 28, 2009 at 2:00 p.m.

4 STIPULATION AND [PROPOSED] ORDER TO CONTINUE THE HEARING ON THE MOTION FOR PARTIAL SUMMARY JUDGMENT

CASE NO. 2:09-CV-01732-WBS-GGH