Nationwide Mutual Insurance Company v. Certain Underwriters at Lloyd's, London

Filing 35

ORDER REQUESTING FURTHER BRIEFING. Signed by Judge Richard Seeborg on 6/17/16. (cl, COURT STAFF) (Filed on 6/17/2016)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9
10

NATIONWIDE MUTUAL INSURANCE
COMPANY,
Plaintiff,

United States District Court
Northern District of California

11
12
13
14

Case No. 15-cv-05503-RS
ORDER REQUESTING FURTHER
BRIEFING

v.
CERTAIN UNDERWRITERS AT
LLOYD'S, LONDON,
Defendant.

15
16

In support of its pending motion to dismiss, defendant relies in part on language set out in

17

paragraph 13 of the “General Policy Conditions” that “[n]o monies payable or collectible from

18

such other insurance shall accrue to the Loss Fund.” At oral argument, defendant responded to a

19

question regarding the potential effect of Endorsement 2 by asserting that endorsement related to a

20

part of the policy form not at issue in this litigation. Indeed, Endorsement 2 explicitly states that

21

the policy “does not provide coverage under PART II EXCESS LOSS FUND PROTECTION of

22

the policy wording.” That endorsement appears consistent with the schedule on page 3 of the

23

policy, which has the entry “NOT COVERED” next to “LOSS FUND,” and with page 8 of the

24

policy, which has the entry “NOT APPLICABLE” next to “EXCESS LOSS FUND

25

PROTECTION LIMIT.” It is abundantly clear, therefore, that Part II of the policy form is not part

26

of the policy as issued to the San Francisco Unified School District and that there no claims or

27

issues in this litigation relating to Part II of the form. Neither plaintiff nor defendant contends

28

otherwise.

1

Endorsement 2, however, also explicitly states, “[i]t is further understood and agreed that

2

any reference made to PART II EXCESS LOSS FUND PROTECTION and to the ASSSURED’S

3

Loss Fund within the policy wording shall be deemed to be deleted.” (underscoring added).

4

As a result, it is unclear whether the language in paragraph 13 of the “General Policy Conditions”

5

that “[n]o monies payable or collectible from such other insurance shall accrue to the Loss Fund”

6

can properly be considered to be part of the policy as issued. The parties’ agreement at oral

7

argument that Endorsement 2 deleted any coverage under Part II does not address the issue,

8

because the question is whether the term “Loss Fund” has any meaning, definition, or relevance

9

under Part I of the policy.

10

Accordingly, within 7 days of the date of this order, defendant shall file a supplemental

United States District Court
Northern District of California

11

brief, not to exceed 5 pages, addressing whether the language in paragraph 13 of the General

12

Policy Conditions on which it relies can be deemed to be part of the policy notwithstanding

13

Endorsement 2, and if so, why and how. Within 7 days thereafter, plaintiff may file a response,

14

also not to exceed 5 pages.

15
16

IT IS SO ORDERED.

17
18
19
20

Dated: June 17, 2016
______________________________________
RICHARD SEEBORG
United States District Judge

21
22
23
24
25
26
27
28

CASE NO.

2

15-cv-05503-RS