National Union Fire Insurance Company of Pittsburgh, PA v. Allied Property and Casualty Insurance Company

Filing 57

STIPULATION and ORDER signed by Chief Judge Morrison C. England, Jr on 10/23/13 DISMISSING WITH PREJUDICE Plaintiff's Claims for Relief Under the Allied Personal Umbrella Policy Only. CASE CLOSED. (Meuleman, A)

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Karen L. Uno (State Bar No. 117410)
Renée C. Callantine (State Bar No. 155991)
David P. Borovsky (State Bar No. 216588)
MECKLER BULGER TILSON MARICK &
PEARSON LLP
575 Market Street, Suite 2200
San Francisco, CA 94105
TEL: [phone] FAX: [phone]

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[e-mail] / [e-mail] /
[e-mail]

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Attorneys for Defendant
ALLIED PROPERTY AND CASUALTY
INSURANCE COMPANY

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SACRAMENTO DIVISION

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NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA, a
Pennsylvania corporation,
Plaintiff,

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vs.
ALLIED PROPERTY AND CASUALTY
INSURANCE COMPANY, an Iowa
corporation,
Defendant.

CASE No. 2:12-CV-01380-MCE- KJN
STIPULATION AND ORDER
DISMISSING WITH PREJUDICE
PLAINTIFF’S CLAIMS FOR RELIEF
UNDER THE ALLIED PERSONAL
UMBRELLA POLICY ONLY
[FRCP 41(A)(1)]
Courtroom: 7
Judge:
Hon. Morrison C. England, Jr.
Complaint Filed:
Trial Date:

May 22, 2012
April 14, 2014

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WHEREAS:

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1.

This is a liability insurance coverage dispute between insurers that relates to

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coverage for a lawsuit known as Foster, et al. v. Brewer Refrigeration Heating & Air

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Conditioning, Inc., et al., Superior Court of the State of California for Nevada County, Case No.

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77173 brought by Michael and Susan Foster against Robert Brewer and Brewer Refrigeration

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Heating & Air Conditioning, Inc. (“Foster action” or “Foster lawsuit”). The Foster action

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alleged that on the evening of May 2, 2010, the Fosters were passengers in a 2006 Porsche

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Cayenne (“Porsche”) driven by Robert Brewer at an unsafe speed when the vehicle crashed,

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resulting in injuries to the Fosters.

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2.

The Foster action was settled. The settlement was funded by Nationwide Mutual

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Insurance Company who had issued a business auto policy that covered Robert Brewer and

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Brewer Refrigeration Heating & Air Conditioning, Inc. (“Brewer Corporation”) and National

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Union, plaintiff herein, who had issued a commercial excess policy that also covered Robert

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Brewer and Brewer Corporation.

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3.

Nationwide paid its $1,000,000 policy limit to settle the Foster action. National

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Union contributed $900,000 toward the settlement of the Foster action, which settled for a total

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of $1,900,000.

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4.

After the settlement, National Union filed this suit seeking to recover the amount it

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paid towards settlement under two policies issued by Allied Property & Casualty Insurance

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Company to Robert and Cheryle Brewer: (1) a personal auto policy, policy number PPC

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0010119244-0 (“Allied personal auto policy”); and (2) a personal umbrella liability policy, policy

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number PEC 7823101988 (“Allied personal umbrella policy”). National Union’s complaint

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alleges claims for declaratory relief, equitable contribution, equitable indemnity, and equitable

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subrogation under both Allied policies.

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5.

On or about October 3, 2013, Allied filed a motion for summary adjudication

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concerning the issue of coverage for the Foster lawsuit under the Allied personal umbrella policy

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only. [Dkt. No. 39]. That motion sought a declaration that Allied had no obligation to reimburse

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National Union for any portion of the settlement in the Foster lawsuit under the Allied personal
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umbrella policy.

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6.

Since the filing of the above motion [Dkt. No. 39], the parties have reached a

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stipulation that would render Allied’s pending motion on the personal umbrella policy only, moot

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as follows:

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WHEREFORE, THE PARTIES HEREBY STIPULATE AND AGREE:

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(a) National Union agrees to immediately dismiss with prejudice
pursuant to Fed.R.Civ.Pro. 41(a)(1), all claims alleged against
Allied in this lawsuit for contribution, indemnity, subrogation or
otherwise, under the Allied personal umbrella policy only and
stipulates that Allied is not obligated to reimburse National Union
for any sums paid to settle the Foster lawsuit under the Allied
personal umbrella policy only;

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(b) Allied agrees to waive any right it may have to seek fees and costs
it incurred for defending against National Union’s claim that
coverage existed for the Foster lawsuit under Allied’s personal
umbrella policy;

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(c) Upon the Court signing this stipulation and proposed order, Allied’s
pending summary adjudication motion on the personal umbrella
policy [Dkt. No. 39] shall be withdrawn as moot;

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(d) That National Union continues to contend, and Allied continues to
dispute, that coverage exists for the settlement payment made by
National Union under the Allied personal auto policy and that
National Union is not dismissing any of its claims for declaratory
relief, contribution, indemnity, or subrogation under the Allied
personal auto policy but has only withdrawn its claims as to the
Allied personal umbrella policy; rather, the parties have and will be
filing motions for summary adjudication with respect to the Allied
personal auto policy;

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(e) The parties shall bear their own fees and costs as to the claims
dismissed in this stipulation and order only; and

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(f) Nothing in this stipulation and order shall bar the parties from
seeking or recovering costs associated with any of the claims not
dismissed in this stipulation and proposed order.

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(g) That Allied’s personal auto policy $1 million occurrence limit has
not been impaired in any regard.

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SO STIPULATED

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Dated: October ___, 2013

McCORMICK, BARSTOW, SHEPPARD,
WAYTE & CARRUTH LLP

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By:
Patrick Fredette
Jay A. Christofferson
Attorneys for Plaintiff
National Union Fire Insurance Company of
Pittsburgh, PA.

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Dated: October ___, 2013

MECKLER BULGER TILSON MARICK &
PEARSON LLP

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By:

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Karen L. Uno
Attorneys for Defendant
Allied Property and Casualty Insurance Company

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BASED ON THE FOREGOING, AND GOOD CAUSE APPEARING:
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1. All of National Union’s claims alleged against Allied in this lawsuit, for
declaratory relief, contribution, indemnity, subrogation or otherwise under the
Allied personal umbrella policy only, are dismissed with prejudice pursuant to
Fed.R.Civ.Pro. 41(a)(1).
2. The parties shall bear their own fees and costs as to the claims dismissed in
this order only.
3. Allied’s pending motion for summary adjudication on the personal umbrella
policy [Dkt. No. 39] is hereby dismissed as MOOT.

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IT IS SO ORDERED.
Date: October 23, 2013

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_____________________________________

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___________________________________________
MORRISON C. ENGLAND, JR., CHIEF JUDGE
UNITED STATES DISTRICT COURT

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