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

Filing 179

STIPULATION AND ORDER DISMISSING CERTAIN CLAIMS WITH PREJUDICE. Signed by Judge ARMSTRONG on 2/17/09. (lrc, COURT STAFF) (Filed on 2/17/2009)

1 2 3 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

RICHARD DENATALE (Bar No. 121416) [e-mail] DARREN S. TESHIMA (Bar No. 238875) [e-mail] ORRICK, HERRINGTON & SUTCLIFFE LLP The Orrick Building 405 Howard Street San Francisco, CA 94105-2669 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs LENSCRAFTERS, INC. and EYEXAM OF CALIFORNIA, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION

LENSCRAFTERS, INC. and EYEXAM OF CALIFORNIA, INC., Plaintiff, v. LIBERTY MUTUAL FIRE INSURANCE COMPANY; EXECUTIVE RISK SPECIALTY INSURANCE COMPANY; UNITED STATES FIRE INSURANCE COMPANY; MARKEL AMERICAN INSURANCE COMPANY and WESTCHESTER FIRE INSURANCE COMPANY, Defendant. AND RELATED COUNTER- AND CROSS- CLAIMS.

Case No. C-07-2853 SBA Assigned to Chief Magistrate Judge James Larson for All Discovery Purposes STIPULATION AND ORDER DISMISSING CERTAIN CLAIMS WITH PREJUDICE

Stipulation and [Proposed] Order Dismissing with Prejudice Certain Claims

1

CASE NO. C-07-2853 SBA

1 2 3 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

The undersigned parties to this action hereby stipulate to the following matters and respectfully request that the Court to enter an order dismissing certain claims with prejudice, as set forth below. A. In this action, Plaintiffs LensCrafters, Inc. and EYEXAM of California,

Inc. (together, "LensCrafters") seek insurance coverage for claims asserted against them in a class action lawsuit entitled Snow, et al. v. LensCrafters, Inc., et al., San Francisco Superior Court Case No. CGC-02-405544 ("Snow"). The Snow action plaintiffs, on behalf of a class of more than one million customers, alleged that LensCrafters violated California's Confidentiality of Medical Information Act ("COMIA") by disclosing private medical information. B. After years of negotiations, LensCrafters reached a settlement with the

plaintiffs in Snow. The Snow settlement became effective on October 11, 2008. Each of the defendant insurers, with the exception of United States Fire Insurance Company ("U.S. Fire"), has consented to the settlement. In connection with the Snow settlement, LensCrafters has signed settlement agreements with each of the defendant insurers, with the exception of U.S. Fire. Specifically, LensCrafters has settled with Liberty Mutual Fire Insurance Company ("Liberty"), Executive Risk Specialty Insurance Company ("ERSIC"), Westchester Fire Insurance Company ("Westchester"), and Markel American Insurance Company ("Markel"). C. Pursuant to these settlement agreements, LensCrafters, Liberty, ERSIC,

Westchester, and Markel agreed to dismiss certain claims against certain parties without prejudice. The Court dismissed these claims without prejudice in orders dated March 19, 2008, April 23, 2008 and October 7, 2008 (Docket Nos. 124, 136, 137, 149). D. The settlement agreements further provided that the parties would file

dismissals with prejudice. Accordingly, LensCrafters, Liberty, ERSIC, Westchester, and Markel now seek to dismiss certain claims against each other with prejudice. E. As part of LensCrafters's settlement with Markel, Markel has assigned to

LensCrafters rights that Markel has or may have against U.S. Fire related to the Snow action, including claims for contribution, subrogation and indemnity (the "Assigned Claims"). The Assigned Claims are unaffected by this stipulation.
Stipulation and [Proposed] Order Dismissing with Prejudice Certain Claims

1

CASE NO. C-07-2853 SBA

1 2 3 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

THEREFORE, LensCrafters, Liberty, ERSIC, Westchester, and Markel, by and through their attorneys of record, stipulate that: 1. 2. 3. 4. 5. 6. LensCrafters may dismiss all claims against Liberty with prejudice; LensCrafters may dismiss all claims against ERSIC with prejudice; LensCrafters may dismiss all claims against Westchester with prejudice; LensCrafters may dismiss all claims against Markel with prejudice. Westchester may dismiss all claims against LensCrafters with prejudice; Markel may dismiss all claims against LensCrafters with prejudice; ORRICK, HERRINGTON & SUTCLIFFE LLP By _/s/ Richard DeNatale__________ _ Richard DeNatale Attorneys for Plaintiffs LENSCRAFTERS, INC. and EYEXAM OF CALIFORNIA, INC. DATED: November 20, 2008 WILLOUGHBY, STUART & BENING By __/s/ Alexander F. Stuart_ _ Alexander F. Stuart Attorneys for Defendant LIBERTY MUTUAL FIRE INSURANCE COMPANY DATED: November 10, 2008 ROSS, DIXON & BELL, LLP By __/s/ Monique Fuentes_____ _ Monique Fuentes Attorneys for Defendant EXECUTIVE RISK SPECIALTY INSURANCE COMPANY DATED: February 11, 2009 LONG & LEVIT LLP By _/s/ Irene Yesowitch_____ _ Irene Yesowitch Attorneys for Defendant MARKEL AMERICAN INSURANCE COMPANY

DATED: November 7, 2008

Stipulation and [Proposed] Order Dismissing with Prejudice Certain Claims

2

CASE NO. C-07-2853 SBA

1 2 3 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

DATED: November 14, 2008

HARRIS, GREEN & DENNISON By _/s/ Robert D. Dennison__ _ Robert D. Dennison Attorneys for Defendant WESTCHESTER FIRE INSURANCE COMPANY

Stipulation and [Proposed] Order Dismissing with Prejudice Certain Claims

3

CASE NO. C-07-2853 SBA

1 2 3 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
Stipulation and [Proposed] Order Dismissing with Prejudice Certain Claims

ORDER Good cause appearing, IT IS HEREBY ORDERED that: 1. 2. 3. 4. 5. 6. LensCrafters's claims against Liberty are dismissed with prejudice; LensCrafters's claims against ERSIC are dismissed with prejudice; LensCrafters's claims against Westchester are dismissed with prejudice; LensCrafters's claims against Markel are dismissed with prejudice; Westchester's claims against LensCrafters are dismissed with prejudice; Markel's claims against LensCrafters are dismissed with prejudice.

DATED: 2/17/09

_______________________________ UNITED STATES DISTRICT JUDGE

4

CASE NO. C-07-2853 SBA