Scottsdale Insurance Company v. Advent, Inc. et al

Filing 17

ORDER GRANTING PETITION FOR APPOINTMENT OF GUARDIAN AD LITEM by Judge Patricia V. Trumbull granting 11 Motion to Appoint Guardian Ad Litem ad Litem. (pvtlc2, COURT STAFF) (Filed on 7/1/2010)

Scottsdale Insurance Company v. Advent, Inc. et al

Doc. 17

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 Sherry Lynn Kielty petitions to be appointed guardian ad litem for her brother, defendant Jerry Kielty, in the above-captioned action. Jerry Kielty was rendered mentally and physically disabled as a result of significant injuries he incurred at a construction site on or about August 22, 2008. He has filed certain claims related to those injuries in state court. ("underlying action"). And Sherry Lynn Kielty has been appointed as guardian ad litem for Jerry Kielty in the underlying action. Pursuant to Civ. L.R. 7-1(b), the petition is taken under submission and the hearing scheduled to be held on July 27, 2010 is vacated. Having reviewed the papers and considered the arguments of counsel, SCOTTSDALE INSURANCE COMPANY,) ) Plaintiff, ) v. ) ) ADVENT, INC., ET AL., ) ) Defendants. ) ___________________________________ ) Case No.: C 10-01342 PVT ORDER GRANTING PETITION FOR APPOINTMENT OF GUARDIAN AD LITEM [Docket No. 11] UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

ORDER, page 1
Dockets.Justia.com

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IT IS HEREBY ORDERED that Sherry Lynn Kielty's petition is granted.1 Rule 17(c) states: The following representatives may sue or defend on behalf of a minor or an incompetent person: (A) (B) (C) (D) a general guardian; a committee; a conservator; or a like fiduciary.

Fed. R. Civ. P. 17. See, e.g., Estate of Ricardo Escobedo, et al. v. City of Redwood City, et al., 2006 WL 571354 *7 (N.D. Cal.). Jerry Kielty fell approximately 20 feet in a stairway shaft at a construction site located in Milpitas, California. Complaint for Declaratory Relief at 6. ("Complaint"). He sustained serious and significant injuries. "Jerry is mentally and physically disabled following an August 22, 2008 traumatic injury to his body, including, inter alia, injuries to his brain and spinal cord; Jerry's disabilities include substantial limitations to his cognitive abilities, including, inter alia, trouble with executive functions, severe impairment of verbal fluency, difficulty sustaining attention, and deficits in short-term and long term memory." Petition at 2. Sherry Kielty has been appointed the guardian ad litem for Jerry Kielty in the underlying action. Id. He has no other guardian or conservator of his estate. Petition at 2. Moreover, Jerry Kielty is represented by the San Jose law firm, McManis Faulker. Petition at 1. In the above-captioned action, plaintiff Scottsdale Insurance Company has sought declaratory relief regarding, inter alia, the scope of its (and other insurers') duties to defend and indemnify other insureds in the underlying action. ("Scottsdale"). Scottsdale insured a subcontractor named Pacific Structures, which performed certain structural concrete work at the construction site. Here, Sherry Kielty is guardian ad litem for her brother in the underlying action and she consents to her appointment in the above-captioned action. She does not appear to have any conflict of interest and does not appear to have a stake in the claims. Moreover, no objections have

The holding of this court is limited to the facts and particular circumstances underlying the present petition. ORDER, page 2

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been made regarding her proposed appointment and ability to represent her brother's best interests. "[T]he Court's discretion allows[s] for the appointment of a different guardian if any doubts exist regarding the guardian ad litem's intentions or qualifications." Estate of Ricardo Escobedo, et al. v. City of Redwood City, et al., supra, 2006 WL 571354 at *7. Accordingly, Sherry Kielty is appointed guardian ad litem for her brother, Jerry Kielty, who is named as a defendant in the above-captioned action. IT IS SO ORDERED. Dated: July 1, 2010 PATRICIA V. TRUMBULL United States Magistrate Judge

ORDER, page 3