United Financial Casualty Company v. Black Diamond Asphalt, Inc. et al

Filing 21

STIPULATION and ORDER signed by Chief Judge Morrison C. England, Jr on 3/29/16: The current deadline to file a joint status report is continued to May 13, 2016. The parties are to meet and confer and file the report by no later than May 13, 2016. (Kaminski, H)

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Patrick M. Howe (SBN 154669)
[e-mail]
402 W. Broadway, Suite 1025
San Diego, CA 92101
[phone] Phone
[phone] Fax
Attorney for plaintiff/cross-defendant
United Financial Casualty Company

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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United Financial Casualty Company;

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Plaintiff,
v.
Black Diamond Asphalt, Inc.; Polar
Corporation; Polar Tank Trailer
LLC; The Reed Leasing Group
LLC; Raymond Myers; Desiree
Myers; and Kinsale Insurance
Company;

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Stipulation to Continue Filing of
Joint Status Report; Order
Thereon

Defendants.
Black Diamond Asphalt, Inc.;
Cross-Claimant,

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Case No. 2:15-cv-02669-MCE-EFB

v.
United Financial Casualty Company;
and Kinsale Insurance Company;
Cross-Defendants.

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Stipulation to Continue Filing of Joint Status Report;
Order Thereon

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Recitals
This is an insurance coverage matter. It arises out of a pending state court

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injury lawsuit in Sacramento Superior Court filed by Raymond Myers and

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Desiree Myers. Mr. Myers claims he was injured when he fell off a trailer

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allegedly manufactured or distributed by the defendants in the injury lawsuit.

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There are two affirmative pleadings in this case. Plaintiff/cross-defendant

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United Financial Casualty Company (“UFCC”) filed a complaint on

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December 24, 2015 (Dkt. 1). In the complaint, UFCC alleges causes of

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action for declaratory relief and damages in the form of reimbursement of

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defense costs in connection with its defense of its policyholder,

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defendant/cross claimant Black Diamond Asphalt, Inc. (“Black Diamond”).

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Each of the other defendants named in UFCC’s complaint is a party to the

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pending state court injury lawsuit or a purported liability insurer of one or

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more of the defendants. UFCC included these as defendants to ensure that

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any judgment reached in this case is binding on each of the defendants. On

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February 16, 2016, Black Diamond filed a cross-claim against UFCC and

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defendant/cross-defendant Kinsale Insurance Company (“Kinsale”) (Dkt. 8).

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Black Diamond alleges a cause of action of insurance bad faith against

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UFCC, causes of action for breach of contract and bad faith against Kinsale,

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and a cause of action for declaratory relief against UFCC and Kinsale.

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The crux of this lawsuit on UFCC’s complaint and Black Diamond’s

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cross-claim is whether UFCC and/or Kinsale is obligated to defend or

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indemnify Black Diamond against the claims in the state court injury lawsuit

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under their respective insurance policies. That issue, and any potential

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damages flowing therefrom, has now been affected in part because Black

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Diamond has now been dismissed as a defendant in the state court injury

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action. The dismissal was filed by claimants’ counsel in the injury action and

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submitted to the state court on or about March 21, 2016.
Stipulation to Continue Filing of Joint Status Report;
Order Thereon – 2

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In light of the dismissal of Black Diamond in the state court injury action,

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UFCC, on March 23, 2016, filed a voluntary dismissal in this case pursuant

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to FRCP 41(a)(1) dismissing defendants The Reed Leasing Group LLC,

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Raymond Myers and Desiree Myers, who had not filed answers to the

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complaint or motions for summary judgment.

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In light of the dismissal of Black Diamond in the state court injury action,

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UFCC and defendants Polar Corporation and Polar Tank Trailer LLC will be

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filing a joint motion/stipulation to dismiss the complaint, without prejudice,

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against such defendants.

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As a result of these actions, the remaining parties in this case will be

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UFCC, Black Diamond and Kinsale. The remaining parties are exploring a

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global resolution whereby both the complaint and Black Diamond’s cross-

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claim would be dismissed, with prejudice. Black Diamond’s counsel has

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advised that she does not have authority to agree to the proposed resolution

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at this time.

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Under the current status, the parties who have appeared in the case were

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to prepare and submit a joint status report to the court by March 25, 2016.

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Given the recent events and streamlining of this case, and the potential

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resolution of the case within the next few weeks, UFCC, Black Diamond

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and Kinsale agree they do not wish to incur the time and expense to prepare

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the joint status report at this time if they will achieve the global resolution

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imminently.

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Request for Continuance

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Accordingly, the parties who have appeared in this action to date hereby

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stipulate to and request an order continuing the deadline to file a joint status

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report by no later than May 13, 2016.

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Stipulation to Continue Filing of Joint Status Report;
Order Thereon – 3

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March 29, 2016

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Respectfully submitted,
By: /s/ Patrick M. Howe
Patrick M. Howe
Attorney for plaintiff/cross-defendant
United Financial Casualty Company
[e-mail]

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March 29, 2016

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Anderson & Poole, P.C.

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By: /s/ Deborah L. Goodman
Deborah L. Goodman
Attorneys for defendant/crossclaimant Black Diamond
Asphalt, Inc.
[e-mail]

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(Signature authorized on 3/25/16)

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March 29, 2016

Lewis Brisbois Bisgaard & Smith
LLP
By: /s/ William F. Horsey
William F. Horsey
Attorneys for defendants Polar
Corporation and Polar Tank Trailer
LLC
[e-mail]

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(Signature authorized on 3/25/16)

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Stipulation to Continue Filing of Joint Status Report;
Order Thereon – 4

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March 29, 2016

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Selvin Wraith Halman LLP

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By: /s/ Susan F. Halman
Susan F. Halman
Attorneys for defendant/crossdefendant Kinsale Insurance
Company
[e-mail]

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(Signature authorized on 3/25/16)

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Order

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Based on the stipulation of the parties, and good cause appearing, the

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court orders that the current deadline to file a joint status report is continued

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to May 13, 2016. The parties are to meet and confer and file the report by no

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later than May 13, 2016. All other provisions of the court’s December 24,

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2015 Order Requiring Joint Status Report (Dkt. 3) remain in force.

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IT IS SO ORDERED.
Dated: March 29, 2016

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Stipulation to Continue Filing of Joint Status Report;
Order Thereon – 5