Cross Check Services, LLC v. Old Republic Insurance Company

Filing 16

ORDER signed by District Judge Morrison C. England, Jr. on 4/19/2017 ORDERING 11 that the facts are estiblished for this litigation as read in this order; IT IS FURTHER ORDERED that when Judgment is entered in this action, Judgment be entered in Old Republic's favor and against Cross Check on Cross Check's claim for the Attorneys' Fees Award. (Reader, L)

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Michael W. Melendez (SBN 125895)
COZEN O'CONNOR
101 Montgomery Street, Suite 1400
San Francisco, CA 94104
Tel:
415.644.0914
Fax:
415.644.0978
Email:
[e-mail]
Attorneys for Defendant
OLD REPUBLIC INSURANCE COMPANY
Louis A. Basile (SBN 047432)
PORTER SIMON, PROFESSIONAL
CORPORATION
P.O. Box 5339
210 Grove Street
Tahoe City, CA 96145
Tel:
530-583-7268
Fax:
530-583-7209
Email:
[e-mail]
Douglas R. Alliston (SBN 137767)
MURPHY CAMPBELL ALLISTON & QUINN
8801 Folsom Boulevard, Suite 230
Sacramento, CA 95826
Tel:
916-400-2300
Fax:
916-400-2311
Email:
[e-mail]
Attorneys for Plaintiff
CROSS CHECK SERVICES, LLC

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CROSS CHECK SERVICES, LLC,

Case No.: 2:15-cv-02113-MCE-EFB

Plaintiff,
v.
OLD REPUBLIC INSURANCE COMPANY, a
Pennsylvania Corporation,
Defendant.

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STIPULATION RE OLD REPUBLIC’S
MOTION FOR PARTIAL SUMMARY
JUDGMENT AGAINST CROSS CHECK
RE CLAIM FOR UNDERLYING
ATTORNEYS’ FEES AND ORDER
Judge: Hon. Morrison C. England, Jr.

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CASE NO.: 2:15-CV-02113-MCE-EFB
STIPULATION RE OLD REPUBLIC’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND ORDER

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STIPULATION

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WHEREAS, plaintiff Cross Check Services, Inc. (“Cross Check”) prevailed in an underlying

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arbitration involving the Lake Christopher Fuels Reduction project against Nevada Safe Fire Council

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(“NVFSC”);

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WHEREAS, in that arbitration, Cross Check sought prevailing party attorneys’ fees against

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NVSFC based on a prevailing party attorneys’ fees provision in purchase order contracts between

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Cross Check and NVSFC and California Civil Code section 1717;

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WHEREAS, the arbitrator awarded Cross Check its prevailing party attorneys’ fees in the

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amount of $39,342.50, which Attorneys’ Fees Award was included in the final arbitration award;

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WHEREAS, Cross Check reduced the final arbitration award, including the Attorneys’
Fees Award, to a judgment in the California Superior Court;

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WHEREAS, Old Republic Insurance Company (“Old Republic”) issued a nonprofit

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organization and management liability insurance policy, number ALT61472, to NVSFC for the

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period January 9, 2011 to January 9, 2012 (“the Policy”);

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WHEREAS, the Policy provides:

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B.

The Insurer shall not be liable under Insuring Agreement C to make any

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payment for Loss as a result of a Claim made against an Organization:

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1.

for any actual or alleged obligation under or breach of any oral or

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written contract or agreement, including any liability of others

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assumed by the Organization under any such contract or agreement…

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(the “Contract Exclusion”); and

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WHEREAS, in this action, Cross Check seeks to recover the arbitration award, including the
Attorneys’ Fees Award, from Old Republic under the Policy;

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WHEREAS, Old Republic brought a motion for partial summary judgment to establish that

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Cross Check’s claim for the Attorneys’ Fees Award is not covered under the Policy based on the

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Contract Exclusion;

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///

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CASE NO.: 2:15-CV-02113-MCE-EFB
STIPULATION RE OLD REPUBLIC’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND ORDER

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///
WHEREAS, Cross Check concedes that its claim for the Attorneys’ Fees Award is not
covered under the Policy based on the Contract Exclusion;

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WHEREFORE, the parties STIPULATE as follows:

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1.

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That Cross Check Services prevailed in an underlying arbitration against NVSFC

involving the Lake Christopher Fuels Reduction project;
2.

That Cross Check sought prevailing party attorneys’ fees against NVSFC in that

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arbitration based on a prevailing party attorneys’ fees provision in the purchase order contracts

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between Cross Check and NVSFC and California Civil Code section 1717;

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3.

That the arbitrator awarded Cross Check its prevailing party attorneys’ fees in the

amount of $39,342.50, which Attorneys’ Fees Award was included in the final arbitration award;
4.

That Cross Check reduced the final arbitration award, including the Attorneys’

Fees Award, to a judgment in the California Superior Court;

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5.

That Old Republic issued the Policy to NVSFC;

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6.

That the Policy contains the Contract Exclusion which provides:

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B.

The Insurer shall not be liable under Insuring Agreement C to make any

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payment for Loss as a result of a Claim made against an Organization:

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1.

for any actual or alleged obligation under or breach of any oral or

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written contract or agreement, including any liability of others

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assumed by the Organization under any such contract or agreement…;

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7.

That in this action, Cross Check seeks to recover the arbitration award, including the

Attorneys’ Fees Award, from Old Republic under the Policy;
8.

That Old Republic brought a motion for partial summary judgment in this action to

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establish that Cross Check’s claim for the Attorneys’ Fees Award is not covered under the Policy

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based on the Contract Exclusion;

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9.

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Fees Award; and

That the Contract Exclusion bars coverage for Cross Check’s claim for the Attorneys’

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CASE NO.: 2:15-CV-02113-MCE-EFB
STIPULATION RE OLD REPUBLIC’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND ORDER

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10.

That when Judgment is entered in this action, Judgment be entered in Old Republic’s

favor and against Cross Check on Cross Check’s claim for the Attorneys’ Fees Award.
It is so STIPULATED.
Dated: April 11, 2017

PORTER SIMON

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By: /s/ Louis A. Basile
Louis A. Basile
Attorneys for Plaintiff
CROSS CHECK SERVICES, INC.

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Dated: April 11, 2017

COZEN O'CONNOR

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By: /s/ Michael W. Melendez
Michael W. Melendez
Attorneys for Defendant
OLD REPUBLIC INSURANCE COMPANY

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ORDER

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It is hereby ORDERED that the following facts are established for this litigation:

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1.

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That Cross Check Services prevailed in an underlying arbitration against NVSFC

involving the Lake Christopher Fuels Reduction project;
2.

That Cross Check sought prevailing party attorneys’ fees against NVSFC in that

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arbitration based on a prevailing party attorneys’ fees provision in the purchase order contracts

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between Cross Check and NVSFC and California Civil Code section 1717;

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3.

That the arbitrator awarded Cross Check its prevailing party attorneys’ fees in the

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amount of $39,342.50 (the “Attorneys’ Fees Award”), which award was included in the final

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arbitration award;

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4.

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That Cross Check reduced the final arbitration award, including the Attorneys’

Fees Award, to a judgment in the California Superior Court;

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CASE NO.: 2:15-CV-02113-MCE-EFB
STIPULATION RE OLD REPUBLIC’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND ORDER

LEGAL\28332685\1

LEGAL\30032529\1

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5.

That Old Republic issued the Policy to NVSFC;

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6.

That the Policy contains the Contract Exclusion which provides:

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B.

The Insurer shall not be liable under Insuring Agreement C to make any

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payment for Loss as a result of a Claim made against an Organization:

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1.

for any actual or alleged obligation under or breach of any oral or

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written contract or agreement, including any liability of others

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assumed by the Organization under any such contract or agreement…;

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7.

That in this action, Cross Check seeks to recover the arbitration award, including the

Attorneys’ Fees Award, from Old Republic under the Policy;
8.

That Old Republic brought a motion for partial summary judgment in this action to

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establish that Cross Check’s claim for the Attorneys’ Fees Award is not covered under the Policy

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based on the Contract Exclusion; and

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9.

That the Contract Exclusion bars coverage for Cross Check’s claim for the Attorneys’

Fees Award.

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It is further ORDERED:

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10.

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That when Judgment is entered in this action, Judgment be entered in Old Republic’s

favor and against Cross Check on Cross Check’s claim for the Attorneys’ Fees Award.
IT IS SO ORDERED.
Dated: April 19, 2017

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CASE NO.: 2:15-CV-02113-MCE-EFB
STIPULATION RE OLD REPUBLIC’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND ORDER

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