Navigators Insurance Company v. Thompson Builders, Inc. et al

Filing 38

ORDER Requiring Further Briefing re 28 Motion for Summary Judgment. Signed by Judge Jeffrey T. Miller on 4/17/2012.(knb)

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JM

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 11-CV-381 JM

NAVIGATORS INSURANCE COMPANY,
Plaintiff,

ORDER REQUIRING FURTHER
BRIEFING

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vs.
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Docket No. 28
THOMPSON BUIILDERS, INC., and DOES 1
through 20, inclusive.
Defendants.
On February 17, 2012, Plaintiff Navigators Insurance Company (“Navigators”) filed a

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motion for summary judgment against Thompson Builders, Inc. (“TBI”). A hearing was held on

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April 9, 2012. Pursuant to this order, the parties shall submit supplemental briefs of no more

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than five pages on or before April 25, 2012.

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TBI’s opposition asserts that Navigators’ argument concerning the insurance policy’s

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limitation to coverage of work on residential buildings is improper because it was not raised in

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the complaint. It is true that a party should be allowed to recover even if it has not identified the

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correct basis for a claim at the outset, “provided always that a late shift in the thrust of the case

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will not prejudice the other party in maintaining his defense upon the merits.” Mir v. Fosburg,

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646 F.2d 342, 347 (9th Cir. 1980) (quoting Wright & Miller, Fed. Prac. & Proc. § 1219 at 145).

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The parties’ briefs have not adequately addressed this issue. Navigators states that “TBI has had

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notice of this argument” and that “there is no possible prejudice that could have been suffered by

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TBI,” but fails to explain the basis for its position. Nav. Reply Brief at 8. The issue was not

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reached at the hearing, and TBI has not had an opportunity to respond to the question of whether

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lack of notice of Navigators’ theory created prejudice during discovery or otherwise. The parties

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are directed to address this issue in their supplemental briefs.

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IT IS SO ORDERED.

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DATED: April 17, 2012

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______________________________
______________________________
______ _____________________
Jeffrey T. Miller
Jeff e
Jeffrey T Miller
ler
United States District Judge
United
n
District

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