United States Fidelity and Guaranty Company v. San Diego Unified Port District et al

Filing 68

ORDER granting 67 Joint Motion to Dismiss Defendant Traylor Bros., Inc. dba Traylor Pacific. Defendant Traylor Pacific is dismissed w/o prejudice from this action. Traylor and USF&G shall bear their own attys' fees costs through the date of this Order. Signed by Judge Irma E. Gonzalez on 11/13/2009. (jah) (jrl).

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
UNITED STATES FIDELITY AND GUARANTY COMPANY, a Maryland corporation, Plaintiff, vs. SAN DIEGO UNIFIED PORT DISTRICT, a California public corporation; TRAYLOR BROTHERS, INC., an Indiana corporation doing business as TRAYLOR PACIFIC; ANCHOR ENVIRONMENTAL, LLC., a Washington limited liability company; GREENWICH INSURANCE COMPANY, a Delaware corporation, Defendant. Based upon the joint motion to dismiss submitted by Plaintiff UNITED STATES FIDELITY AND GUARANTY COMPANY ("USF&G") and Defendant TRAYLOR BROS., INC., doing business as TRAYLOR PACIFIC ("TRAYLOR PACIFIC"), and good cause appearing, the Court HEREBY ORDERS: CASE NO. 09-CV-0872-IEG (POR) ORDER GRANTING JOINT MOTION TO DISMISS DEFENDANT TRAYLOR BROS., INC. [Doc. No. 67]

1.

The joint motion to dismiss referenced above is GRANTED;

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action, with TRAYLOR and USF&G each bearing their own attorneys' fees and costs through the date of this Order;

3.

Notwithstanding TRAYLOR PACIFIC's dismissal, pursuant to TRAYLOR

PACIFIC'S stipulation in the Joint Motion (Doc. No. 67), TRAYLOR PACIFIC shall be bound by any final judgment entered in this action, including but not limited to, whether USF&G has any duty to defend and/or to indemnify with respect to the action entitled Traylor Bros., Inc. v. San Diego Unified Port District, United States District Court for the Southern District of California, Case no. 08-CV-01019-L (JMA) (hereinafter "Underlying Action"), and whether TRAYLOR PACIFIC has any rights or remedies to seek policy benefits against USF&G, including in any direct action against USF&G pursuant to California Insurance Code section 11580(b)(2);

4.

TRAYLOR PACIFIC is decreed to have waived any right to allege or contend that its

dismissal was improper or that any final judgment entered in this action is not binding on TRAYLOR PACIFIC on the grounds that TRAYLOR PACIFIC is, or ever was, a necessary, indispensable or proper party whom USF&G was required or permitted to join, including under Rules 19 or 20 of the Federal Rules of Civil Procedure. USF&G is decreed to have waived any right to allege or contend, that TRAYLOR PACIFIC's dismissal was improper or that any final judgment entered in this action is not binding on USF&G, including on the grounds that TRAYLOR PACIFIC is, or ever was, a necessary, indispensable or proper party whom USF&G was required or permitted to join, including under Rules 19 or 20 of the Federal Rules of Civil Procedure.

5.

Nothing in this Order is intended or shall be construed to be a decree, judgment, finding

or other determination as to: a) the fault, liability or occurrence of damages as to any party in either this action or the Underlying Action; b) the availability of any coverage, defense or indemnity obligations arising out of the Underlying Action as to any insured or party to this action or the Underlying Action; or c) the availability of any right or remedy to enforce such coverage, defense or indemnity obligations, including a direct action against USF&G under California Insurance Code -2-

09cv0872

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section 11580(b)(2).

IT IS SO ORDERED.

DATED: November 13, 2009 IRMA E. GONZALEZ, Chief Judge United States District Court

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