Lenscrafters, Inc. et al v. Liberty Mutual Fire Insurance Company et al

Filing 149

STIPULATION AND ORDER. Signed by Judge ARMSTRONG on 10/7/08. (lrc, COURT STAFF) (Filed on 10/8/2008)

1 RICHARD DeNATALE (Bar No. 121416) CELIA M. JACKSON (Bar No. 124508) 2 HELLER EHRMAN LLP 3 333 Bush Street San Francisco, CA 94104-2878 4 Telephone: [phone] Facsimile: [phone] 5 Email: [e-mail] Email: [e-mail] 6 Attorneys for Plaintiffs 7 LENSCRAFTERS, INC. and EYEXAM OF CALIFORNIA, INC. 8 9 10 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Case No.: C-07-02853 SBA STIPULATION AND ORDER DISMISSING CERTAIN CLAIMS, COUNTER-CLAIMS AND CROSSCLAIMS WITHOUT PREJUDICE

11 LENSCRAFTERS, INC. and EYEXAM OF CALIFORNIA, INC., 12 13 14 v. Plaintiffs,

15 LIBERTY MUTUAL FIRE INSURANCE 16 COMPANY, EXECUTIVE RISK SPECIALTY INSURANCE COMPANY, UNITED STATES 17 FIRE INSURANCE COMPANY, MARKEL AMERICAN INSURANCE COMPANY and 18 WESTCHESTER FIRE INSURANCE COMPANY, 19 20 21 AND RELATED COUNTER- AND CROSS22 CLAIMS. 23 24 25 26 27 28
STIPULATION AND [PROPOSED] ORDER DISMISSING CERTAIN CLAIMS, COUNTER-CLAIMS AND CROSS-CLAIMS WITHOUT PREJUDICE, CASE NO. C-07-02853 SBA

Defendants,

1

The parties to this action hereby stipulate to the following matters and request the Court to

2 enter an Order dismissing certain claims, counter-claims, and cross-claims without prejudice, as set 3 forth below. 4 A. In this action, Plaintiffs LensCrafters, Inc. and EYEXAM of California, Inc.

5 (together, "LensCrafters") seek insurance coverage for claims asserted against them in a class 6 action lawsuit entitled Snow, et al. v. LensCrafters, Inc., et al., San Francisco Superior Court Case 7 No. CGC-02-405544 ("Snow"). On May 31, 2007, LensCrafters filed a Complaint for Declaratory 8 Relief against its insurers, Liberty Mutual Fire Insurance Company ("Liberty"), Executive Risk 9 Specialty Insurance Company ("ERSIC"), Westchester Fire Insurance Company ("Westchester"), 10 United States Fire Insurance Company ("U.S. Fire") and Markel American Insurance Company 11 ("Markel). All defendants other than U.S. Fire filed answers to the complaint. 12 B. Markel filed counter-claims against LensCrafters and cross-claims against the other

13 insurers. ERSIC also filed cross-complaints against the other insurers. Westchester filed counter14 claims against LensCrafters and cross-complaints against the other insurers. 15 C. On October 2, 2007, LensCrafters filed a First Amended Complaint, which alleged

16 additional claims for relief. ERSIC filed an answer to the First Amended Complaint. Westchester, 17 U.S. Fire and Markel moved to dismiss the Second and Third Claims for Relief in the First 18 Amended Complaint. On February 8, 2008, Westchester withdrew its motion to dismiss. On 19 February 11, 2008, the Court granted the motions of U.S. Fire and Markel and dismissed the 20 Second and Third Claims for Relief. 21 D. On March 3, 2008, U.S. Fire filed an answer to the amended complaint. On July 31,

22 2008, U.S. Fire filed answers to the cross-complaints of ERSIC and Markel and counter-claims 23 against ERSIC and Markel. 24 E. LensCrafters has reached a settlement with the plaintiffs in Snow. On August 6,

25 2008, the Court hearing the Snow case entered an Order Granting Final Approval of Settlement, 26 Dismissing Action With Prejudice, and Directing Judgment To Be Entered. The Court entered a 27 judgment on the same date. 28 F. Earlier this year, Liberty, ERSIC and Westchester consented to the Snow settlement. 1
STIPULATION AND [PROPOSED] ORDER DISMISSING CERTAIN CLAIMS, COUNTER-CLAIMS AND CROSS-CLAIMS WITHOUT PREJUDICE, CASE NO. C-07-02853 SBA

1 LensCrafters entered into written settlement agreements with those insurers, pursuant to which 2 Liberty and ERSIC agreed to contribute to the Snow settlement fund and Westchester agreed to pay 3 money to LensCrafters. 4 G. On March 20, 2008, this Court granted LensCrafters' motion to dismiss its claims

5 against Liberty, ERSIC and Westchester. The Court dismissed Westchester's claims against 6 LensCrafters and the other insurers on February 26, 2008, and Markel's claims against Westchester 7 on April 24, 2008. ERSIC's claims against Liberty and Westchester were dismissed on April 14, 8 2008. The above dismissals were without prejudice. Due to these dismissals, Westchester is no 9 longer a party to this litigation. 10 H. LensCrafters has now reached a written settlement with Markel, pursuant to which

11 Markel has consented to the Snow settlement and agreed to pay money to LensCrafters, and the 12 parties have released claims against one another. As part of the settlement, LensCrafters has agreed 13 to file a dismissal of its claims against Markel without prejudice, and Markel has agreed to file a 14 dismissal of its counter-claims against LensCrafters without prejudice. When the Snow settlement 15 becomes final, as defined in the Snow settlement agreement, the parties will file dismissals with 16 prejudice. 17 I. As part of the settlement, Markel has assigned to LensCrafters rights that Markel has

18 or may have against U.S. Fire related to the Snow action, including claims for contribution, 19 subrogation and indemnity (the "Assigned Claims"). 20 J. Markel also wishes to dismiss its cross-claims against Liberty, ERSIC and U.S. Fire

21 without prejudice. Markel's dismissal without prejudice of its cross-claims against U.S. Fire is not 22 intended to release the Assigned Claims or in any way impair LensCrafters' right to pursue the 23 Assigned Claims. 24 THEREFORE, LensCrafters, Liberty, ERSIC, Markel and U.S. Fire, by and through their

25 attorneys of record, stipulate that: 26 27 28 1. 2. 3. LensCrafters may dismiss all claims against Markel without prejudice; Markel may dismiss all counter-claims against LensCrafters without prejudice; Markel may dismiss all cross-claims against Liberty, ERSIC and U.S. Fire without 2
STIPULATION AND [PROPOSED] ORDER DISMISSING CERTAIN CLAIMS, COUNTER-CLAIMS AND CROSS-CLAIMS WITHOUT PREJUDICE, CASE NO. C-07-02853 SBA

1 prejudice; and 2 4. The parties agree that the dismissal of Markel's claims against U.S. Fire is not a

3 dismissal of the Assigned Claims. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
STIPULATION AND [PROPOSED] ORDER DISMISSING CERTAIN CLAIMS, COUNTER-CLAIMS AND CROSS-CLAIMS WITHOUT PREJUDICE, CASE NO. C-07-02853 SBA

DATED: September 24, 2008

HELLER EHRMAN LLP By _/s/ Celia M. Jackson_ Celia M. Jackson Attorneys for Plaintiffs LENSCRAFTERS, INC. and EYEXAM OF CALIFORNIA, INC.

DATED: September 24, 2008

WILLOUGHBY, STUART & BENING By _/s/ Alexander F. Stuart_ Alexander F. Stuart Attorneys for Defendant LIBERTY MUTUAL FIRE INSURANCE COMPANY

DATED: September 24, 2008

ROSS, DIXON & BELL, LLP By _/s/ Monique Fuentes_ Monique Fuentes Attorneys for Defendant EXECUTIVE RISK SPECIALTY INSURANCE COMPANY

DATED: September 24, 2008

LONG & LEVIT LLP By _/s/ Chip Cox_ Chip Cox Attorneys for Defendant MARKEL AMERICAN INSURANCE COMPANY

DATED: September 24, 2008

SQUIRE SANDERS & DEMPSEY L.L.P. By _/s/ David A. Gabianelli_ David A. Gabianelli Attorneys for Defendant UNITED STATES FIRE INSURANCE COMPANY

1 2 3 4 5

ORDER Good cause appearing, IT IS HEREBY ORDERED that: 1. 2. 3. LensCrafters' claims against Markel are dismissed without prejudice; Markel's counter-claims against LensCrafters are dismissed without prejudice, and Markel's cross-claims against Liberty, ERSIC and U.S. Fire are dismissed without

6 prejudice. 7 8 DATED: 10/7/08 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4
STIPULATION AND [PROPOSED] ORDER DISMISSING CERTAIN CLAIMS, COUNTER-CLAIMS AND CROSS-CLAIMS WITHOUT PREJUDICE, CASE NO. C-07-02853 SBA

______________________________ UNITED STATES DISTRICT JUDGE