Second Walnut Creek Mutual v. Travelers Property Casualty Company of America et al

Filing 23

ORDER re 21 granting STIPULATION Granting Defendants' Motion to Dismiss for Failure to State A Claim Upon Which Relief Can Be Granted. Signed by Judge Claudia Wilken on 12/5/08. (scc, COURT STAFF) (Filed on 12/5/2008)

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Ronald F. Remmel (#87628) [e-mail] Lenell Topol McCallum (#84024) [e-mail] NEWTON REMMEL A Professional Corporation 1451 Grant Road, P.O. Box 1059 Mountain View, CA 94042 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant FEDERAL INSURANCE COMPANY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION

SECOND WALNUT CREEK MUTUAL, Plaintiff, vs. TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, FEDERAL INSURANCE COMPANY and DOES 1 through 20, inclusive, Defendants.

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Case No.: CV08-2874 CW ORDER GRANTING DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED (RULE 12(b)(6)) Hearing Date: Time: Courtroom: November 6, 2008 2:00 p.m. 2

The Court has considered the motion of Defendants Travelers Property Casualty
Company of America and Federal Insurance Company to dismiss the complaint of plaintiff Second Walnut Creek Mutual, pursuant to Federal Rule of Civil Procedure 12(b)(6), along with the stipulation executed by plaintiff and defendants granting the motion to dismiss. Upon having considered the written arguments of defendants and the stipulation of all parties granting the motion to dismiss, and good cause appearing, the Court rules and orders as follows: 1. Defendants' motion to dismiss plaintiff's Complaint for Breach of Contract, Breach of Implied Covenant Of Good Faith And Fair Dealing, Declaratory
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS -

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Relief And Punitive Damages, with prejudice, is granted on the grounds that the complaint fails to state a claim upon which relief can be granted. Defendants' denial of the costs incurred by plaintiff to repair the underground portion of the plumbing system was proper because those costs are excluded under the involved insurance policy, which is attached to the Complaint, and there has been no breach of contract as a matter of law. Furthermore, since the denial of coverage was proper, the facts do not support a claim for breach of the covenant of good faith and fair dealing or punitive damages as a matter of law. 12/5/08 DATED: ________________

_______________________________________ CLAUDIA WILKEN JUDGE OF THE UNITED STATES DISTRICT COURT

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS -

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