Alpha Dyno Nobel v. Willis of Texas, Inc.

Filing 18

STIPULATION and ORDER signed by Senior Judge William B. Shubb on 10/16/15 ORDERING that this action is STAYED in all respects until 30 days after the occurrence of any of the following: a. entry of final judgment in the State Court Action or the La ncer Action; b. resolution of the State Court Action or Lancer Action by any means resulting in a dismissal in whole or in part of the action; or c. withdrawal of coverage of Alpha in the State Court Action. Upon expiration of the Stay, the Parties shall promptly meet and confer and submit a status report to the Court regarding further proceedings in this action. The 12/07/15 Scheduling Conference is VACATED. CASE STAYED (Benson, A)

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DOWNEY BRAND LLP
ANTHONY L. VIGNOLO (Bar No. 203933)
MATTHEW J. WEBER (Bar No. 227314)
AVALON J. FITZGERALD (Bar No. 288167)
621 Capitol Mall, 18th Floor
Sacramento, CA 95814-4731
Telephone:
916.444.1000
Facsimile:
916.444.2100
[e-mail]
[e-mail]
[e-mail]
Attorneys for Defendant
WILLIS OF TEXAS, INC.

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DOWNEY BRAND LLP

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ALPHA DYNO NOBEL, a California
corporation,

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Plaintiff,
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Case No. 2:15-cv-01745-WBS-CKD
STIPULATION AND [PROPOSED]
ORDER TO STAY FURTHER
PROCEEDINGS

v.
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WILLIS OF TEXAS, INC., a Texas
corporation,

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Defendant.

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1423589.1

STIPULATION AND [PROPOSED] ORDER TO STAY FURTHER PROCEEDINGS

WHEREAS, this action involves a single claim by Plaintiff Alpha Dyno Nobel (“Alpha”)

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against Willis of Texas, Inc. (“Willis”) for failure to procure adequate insurance coverage;

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WHEREAS, Alpha is the insured under a commercial general liability insurance policy

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and a commercial excess insurance policy, both issued by Lancer Insurance Company (“Lancer”)

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for the policy period July 1, 2013 to July 1, 2014 (the “Policies”);

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WHEREAS, on December 18, 2015, Lancer filed an action against Alpha , and others, in

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the Eastern District of California to reform the Policies to add certain exclusions from coverage

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that occur in Alpha’s day-to-day operations (“Lancer Action”);

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WHEREAS, on January 16, 2015, a complaint was filed against Alpha in a state court
proceeding pending in Kern County Superior Court in connection with certain claims arising out

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of injuries and/or damages alleged to have occurred during the scheduled demolition of boiler

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DOWNEY BRAND LLP

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structures on or about August 3, 2013 (“State Court Action”);

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WHEREAS, in or around August 2013, Alpha submitted to Lancer a tender of defense
and coverage in connection with the claims asserted in the State Court Action;

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WHEREAS, Lancer initially refused to tender a defense to Alpha for the State Court
Action;

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WHEREAS, as a result of, inter alia, the Lancer Action and Lancer’s refusal to provide a

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defense in the State Court Action, on August 18, 2015, Alpha initiated the instant lawsuit against

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Willis, claiming that Willis failed to obtain adequate insurance coverage on Alpha’s behalf (the

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“Lawsuit”);

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WHEREAS, Alpha determined that it was necessary to file the Lawsuit on August 18,
2015, in light of certain potential statute of limitations deadlines;

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WHEREAS, approximately thirty-five days after the Lawsuit was filed, on September 22,

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2015, Lancer informed Alpha by letter that it had re-evaluated its position and would agree, under

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a reservation of rights, to defend Alpha in connection with the claims asserted in the State Court

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Action;
WHEREAS, Lancer’s intervening decision on September 22, 2015 to provide a defense to

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Alpha in the State Court Action meaningfully impacts the claim asserted in this Lawsuit;
1423589.1

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STIPULATION AND [PROPOSED] ORDER TO STAY FURTHER PROCEEDINGS

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WHEREAS, the potential outcomes of both the State Court Action and the Lancer Action
will meaningfully impact the claim asserted in this Lawsuit;

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WHEREAS, the Parties believe that, in light of the recent development, it is in the interest

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of judicial economy and fundamental fairness to stay all further proceedings in this Lawsuit

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pending the outcome of the State Court Action and the Lancer Action;

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NOW, THEREFORE, the Parties hereby stipulate to the following, subject to the approval
of the Court:

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1.

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This action will be stayed in all respects until thirty (30) days after the occurrence
of any of the following:

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a. entry of final judgment in the State Court Action or the Lancer Action;

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b. resolution of the State Court Action or Lancer Action by any means

DOWNEY BRAND LLP

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resulting in a dismissal in whole or in part of the action; or

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c. withdrawal of coverage of Alpha in the State Court Action.

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2.

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Upon expiration of the Stay, the Parties shall promptly meet and confer and submit
a status report to the Court regarding further proceedings in this action.

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3.

The Parties agree that the Stay shall not impact such rights and defenses, including

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any procedural or substantive claims or defenses, as either party may have in this

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action as of the time of the Parties’ entry into this stipulation.

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4.

The Scheduling Conference set for December 7, 2015 is vacated.

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SO STIPULATED.

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1423589.1

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STIPULATION AND [PROPOSED] ORDER TO STAY FURTHER PROCEEDINGS

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DATED: October 15, 2015

DOWNEY BRAND LLP

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By: /s/ Avalon J. Fitzgerald
AVALON J. FITZGERALD
Attorney for Defendant
WILLIS OF TEXAS, INC.

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DATED: October 15, 2015

ARONOWITZ SKIDMORE LYON, APLC

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By: /s/ Kathleen C. Lyon
KATHLEEN C. LYON
Attorney for Plaintiff
ALPHA DYNO NOBEL

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DOWNEY BRAND LLP

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IT IS SO ORDERED.

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Dated: October 16, 2015

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1423589.1

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STIPULATION AND [PROPOSED] ORDER TO STAY FURTHER PROCEEDINGS