Continental Casualty Company v. Greater Omaha Packing Company, Inc.

Filing 25

MEMORANDUM AND ORDER that GOPAC's motion to dismiss 16 is granted in part, as set forth in this order. Continental is ordered to show cause, on or before July 7, 2015, why the Court should not dismiss its complaint, as set forth in this order. GOPAC may file a brief in opposition on or before July 21, 2015. Ordered by Judge John M. Gerrard. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CONTINENTAL CASUALTY
COMPANY, an Illinois corporation,
8:14-CV-194
Plaintiff,
vs.

MEMORANDUM AND ORDER

GREATER OMAHA PACKING
COMPANY, INC., a Nebraska
corporation,
Defendant.
This matter is before the Court on the motion to dismiss (filing 16) filed
by defendant Greater Omaha Packing Company ("GOPAC"). For the reasons
discussed below, GOPAC's motion will be granted in part, and Continental
will be ordered to show cause why the remainder of its complaint should not
be dismissed for failure to state a claim and for lack of an issue ripe for
judicial review.
I. BACKGROUND
At all times relevant to this lawsuit, GOPAC was a Nebraska
corporation and supplier of raw beef based in Omaha, Nebraska, and
Continental was an Illinois corporation based in Chicago. Filing 1 at ¶¶ 13–
14, 18. In 2009, Continental was GOPAC's commercial umbrella insurer.
Filing 1 at ¶ 1. Under its policy with GOPAC ("the Policy"), Continental
agreed to defend and indemnify GOPAC against certain claims for "bodily
injury" and "property damage." See filing 1 at ¶¶ 24–30; filing 1-2 at 8, 21–22.
In October 2009, GOPAC was implicated in an E. coli outbreak in New
England, and GOPAC was named in multiple tort lawsuits. Filing 1 at ¶ 2. In
October 2011, Continental assumed GOPAC’s defense from GOPAC’s primary
insurer. Since then, Continental has defended GOPAC in several lawsuits
related to the New England outbreak. To date, Continental spent significant
sums defending GOPAC. Filing 1 at ¶ 3. Continental has also paid
approximately $3.5 million in defense fees, settlements, and prejudgment
interest for GOPAC’s indemnitee, Fairbank Reconstruction Corporation d/b/a
Fairbank Farms ("Fairbank"), a processor and seller of ground beef, after a
federal jury sitting in Maine found that GOPAC delivered raw sirloin trim
contaminated with E. coli to Fairbank. Filing 1 at ¶ 4. Continental (along

with another insurer of GOPAC) has also indemnified GOPAC for
settlements in four tort lawsuits, which together total $1.95 million. Filing 1
at ¶ 5. Continental alleges that substantial defense fees are still being
incurred in that case, and additional, substantial indemnity obligations are
likely to be incurred going forward. Filing 1 at ¶ 6.
In this case, Continental seeks a declaration regarding its duty to
defend and indemnify GOPAC in a lawsuit filed against GOPAC by Fairbank
in the United States District Court for the Western District of New York (the
"New York suit"). Filing 1-1; see also Fairbank v. GOPAC, case no. 1:13-CV907, filing 1 (W.D.N.Y. 2013). In the New York suit, Fairbank alleges that by
supplying E. coli-contaminated beef, GOPAC violated a "Product Guarantee"
GOPAC provided to Fairbank. Filing 1 at ¶ 18; filing 1-1 at ¶¶ 14–18.
Fairbank's complaint asserts multiple theories of recovery: breach of contract,
breach of express warranty, and breach of the implied warranties of
merchantability and fitness for a particular purpose. Filing 1-1 at 8–12.
Fairbank seeks a declaration that GOPAC breached the Product Guarantee
and is liable for Fairbank's resulting damages, including Fairbank's recall
costs; lost profits; lost enterprise value; and recall-related attorney fees, costs,
and expenses. Filing 1 at ¶ 20; filing 1-1 at 6–8. Continental is currently
defending GOPAC in the New York suit under a full reservation of rights.
Filing 1 at ¶ 9.
II. STANDARD OF REVIEW
A. Rule 12(b)(6)
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a
complaint must contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). A claim has facial plausibility when the plaintiff pleads factual
content that allows the Court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. Id. While the Court must
accept as true all facts pleaded by the nonmoving party and grant all
reasonable inferences from the pleadings in favor of the nonmoving party,
Gallagher v. City of Clayton, 699 F.3d 1013, 1016 (8th Cir. 2012), a pleading
that offers labels and conclusions or a formulaic recitation of the elements of
a cause of action will not do. Iqbal, 556 U.S. at 678. Determining whether a
complaint states a plausible claim for relief requires the Court to draw on its
judicial experience and common sense. Id. at 679.
B. Rule 12(b)(1)
A motion pursuant to Fed. R. Civ. P. 12(b)(1) challenges whether the
court has subject matter jurisdiction. The party asserting subject matter
jurisdiction bears the burden of proof. Great Rivers Habitat Alliance v.
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FEMA, 615 F.3d 985, 988 (8th Cir. 2010). Rule 12(b)(1) motions can be
decided in three ways: at the pleading stage, like a Rule 12(b)(6) motion; on
undisputed facts, like a summary judgment motion; and on disputed facts.
Jessie v. Potter, 516 F.3d 709, 712 (8th Cir. 2008).
III. ANALYSIS
Continental contends that it should not be required to insure GOPAC's
business dealings, and that the damages sought in the New York suit are
beyond the scope of the Policy. Continental seeks a declaration that it has no
obligation (under the Policy or otherwise) to indemnify or defend GOPAC in
connection with the claims alleged in the New York suit. Filing 1 at 7. The
Policy contains a "Contractual Liability" exclusion, which Continental has
pleaded, apparently as the basis for its assertion of non-coverage. See filing 1
at ¶¶ 29–31.
In response, GOPAC filed the pending motion to dismiss. GOPAC's
motion attacks Continental's complaint in two steps. GOPAC first asserts
that the complaint, as well as certain materials which it contends are
embraced by the pleadings under Fed. R. Civ. P. 12(d), demonstrate as a
matter of law that Continental has a duty to defend GOPAC in the New York
suit. According to GOPAC, Fairbank's claims are for property damage and
are covered by the Policy, and do not fall within the Contractual Liability
exclusion. Thus, GOPAC argues that Continental does have a duty to defend
it in the New York suit and its request for a declaration to the contrary must
be dismissed under Fed. R. Civ. P. 12(b)(6) for failure to state a claim.
GOPAC then contends that the remainder of Continental's complaint—a
request for a declaration regarding its duty to indemnify—is not ripe for
review. So, GOPAC argues, the remainder of Continental's complaint should
be dismissed for lack of subject matter jurisdiction under Fed. R. Civ. P.
12(b)(1).1
The Court finds that at least some portion of the New York suit
presents a claim for property damage within the meaning of the Policy. The
Court further finds that the Contractual Liability exclusion does not apply to
at least some portions of the New York suit. Continental asserts that other
exclusions may apply, but it has not identified them. Thus, the Court will
dismiss Continental's request for a declaration that it owes no duty to defend,
GOPAC has actually phrased its Rule 12(b)(1) argument more broadly, asserting that the
complaint as a whole is not ripe. But Continental's claim regarding its duty to defend is
ripe. GOPAC has been sued and Continental has been called upon to provide a defense,
which it has done under a reservation of rights. See, e.g., Scottsdale Ins. Co. v. Universal
Crop Prot. Alliance, LLC, 620 F.3d 926, 933–34 (8th Cir. 2010); Aetna Cas. and Sur. Co. v.
Gen. Dynamics Corp., 968 F.2d 707, 711 (8th Cir. 1992). It remains to be seen whether
Continental's duty-to-indemnify claim is ripe.
1

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insofar as that request is based upon the Contractual Liability exclusion or
the lack of a claim for property damage. And the Court will order Continental
to show cause why its duty-do-defend claim should be not dismissed in its
entirety.
At this time, Continental's duty-to-indemnify claim is similarly
underdeveloped, and the Court is therefore unable to determine if the
remainder of Continental's complaint states a claim for relief or is even ripe
for review. Accordingly, the Court will order Continental to show cause why
the remainder of its complaint should not be dismissed.
A. The Damages Sought in the New York Suit
As noted above, the Policy covers claims against GOPAC for "property
damage." GOPAC contends that, in the New York suit, Fairbank is asserting
claims for property damage which are covered by the Policy. As proof,
GOPAC has submitted two documents from the New York suit: Fairbank's
Rule 26 Initial Disclosures and Fairbank's answers to certain interrogatories.
Filings 18-1 and 18-2.
As a preliminary matter, the Court must determine whether it may
consider these materials. When deciding a motion to dismiss under Rule
12(b)(6), the Court is normally limited to considering the facts alleged in the
complaint. If the Court considers matters outside the pleadings, the motion to
dismiss must be converted to one for summary judgment. Fed. R. Civ. P.
12(d). However, the Court may consider exhibits attached to the complaint
and materials that are necessarily embraced by the pleadings without
converting the motion. Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n.4
(8th Cir. 2003). Documents necessarily embraced by the pleadings include
those whose contents are alleged in a complaint and whose authenticity no
party questions, but which are not physically attached to the pleading.
Ashanti v. City of Golden Valley, 666 F.3d 1148, 1151 (8th Cir. 2012). The
Court may also take notice of public records. Levy v. Ohl, 477 F.3d 988, 991
(8th Cir. 2007).
The pertinent contents of GOPAC's first submission—Fairbank's Rule
26 initial disclosures—are alleged in Continental's complaint and are
necessarily embraced by the pleadings. Continental does not contend
otherwise. Continental does object, however, to GOPAC's second
submission—Fairbank's answers to certain interrogatories. See filing 23 at 7.
These answers are neither embraced by the pleadings nor, when GOPAC first
provided them, were they matters of public record. Although they had been
produced in the New York suit, they had not been filed with that court. Since
then, however, these answers have been filed in the New York suit. Compare
filing 18-2 at 3 with case no. 1:13-cv-907, filing 79-46 at 11 (authenticated at
filing 79-48 at ¶ 47). As public filings in an ongoing lawsuit, these are now
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matters of public record, and properly considered without converting
GOPAC's motion to one for summary judgment. See Levy, 477 F.3d at 991.
In its initial disclosures, Fairbank stated that it is seeking, among
other damages, certain expenses not reimbursed by insurance. Filing 1 at ¶
21. In its answers to GOPAC's interrogatories, Fairbank clarified that this
includes, among other things, $349,620 in expenses for "[h]eld product or
disposal." Filing 18-2 at 3. GOPAC contends that these expenses qualify as
"property damage," which the Policy defines as including, among other
things, "[p]hysical injury to tangible property, including all resulting loss of
use of that property." Filing 1 at ¶ 27 (emphasis supplied).
The Court agrees that expenses incurred for holding and disposing of
tainted beef qualify as expenses resulting from the "loss of use" of that beef.
Continental does not argue otherwise, except to assert that "a more complete
analysis of the policy language and the additional terms and exclusions that
may apply" is needed. Filing 23 at 7. But Continental is presumably familiar
with the terms of its own policies, and this is the time to raise additional
terms and exclusions, which Continental has not done.
The New York suit includes a claim for "property damage" within the
meaning of the Policy. And once a complaint states one claim within the
policy's coverage, the insurer has a duty to accept defense of the entire
lawsuit, even though other claims may fall outside of the policy's coverage.
Babcock & Wilcox Co. v. Parsons Corp., 430 F.2d 531, 537 (8th Cir. 1970)
(applying Nebraska law); Fireman's Fund v. Structural Sys. Tech., Inc., 426
F. Supp. 2d 1009 (D. Neb. 2006).
B. The Contractual Liability Exclusion
As noted above, the Policy contains an exclusion for "Contractual
Liability." As the Court understands it, Continental's argument is that the
Contractual Liability exclusion applies because the New York suit is based
(in part) on GOPAC's Product Guarantee to Fairbank. GOPAC counters that,
by its terms, this exclusion does not apply. Alternatively, GOPAC asserts
that the claims asserted against it in the New York suit fall within several
exceptions to the exclusion, and are thus brought back within the Policy's
coverage.
The Court must first determine which state's law governs its
interpretation of the Policy. The Policy itself contains no choice-of-law clause.
See filing 1-2. Continental asserts that the Policy is governed by Nebraska
law, see filing 23 at n.1, and GOPAC does not contend otherwise. And based
on its own review, the Court agrees that Nebraska law controls.2
A federal court sitting in diversity applies the forum state’s choice of law principles.
American Guar. and Liability Ins. Co. v. U.S. Fidelity & Guar. Co., 668 F.3d 991, 996 (8th
Cir. 2012). When deciding conflict of law issues, the Supreme Court of Nebraska seeks
2

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An insurance policy is a contract, and the Court will construe it like
any other contract, according to the meaning of the terms that the parties
have used. Am. Family Mut. Ins. Co. v. Wheeler, 842 N.W.2d 100 (Neb. 2014).
When an insurance policy's terms are clear, the Court will give them their
plain and ordinary meaning as a reasonable person in the insured's position
would understand them. Id. If a policy is ambiguous, it will be construed in
favor of the insured. Id.
The Contractual Liability exclusion and its exceptions provide, in
relevant part:
This Insurance does not apply to:
....
"Bodily injury," [or] "property damage" . . . for which [GOPAC] is
obligated to pay damages by reason of the assumption of liability
in a contract or agreement. This exclusion does not apply to
[otherwise-covered] liability . . . .
(1)

That [GOPAC] would have in the absence of the contract or
agreement; or

(2)

Because of "bodily injury" or "property damage" assumed in
a contract or agreement that is an "insured contract,"
provided the "bodily injury" or "property damage" occurs
subsequent to the execution of the contract or agreement.

Filing 1 at ¶ 29; filing 1-2 at 8–9.
An "insured contract" is defined as, among other things:
The part of other contracts or agreements pertaining to
[GOPAC's] business . . . under which [GOPAC] assume[s] the tort
liability to pay damages because of "bodily injury" or "property
damage" to a third person or organization, if the contracts or
agreements are made prior to the "bodily injury" or "property
damage."

guidance from the Restatement (Second) of Conflict of Laws (1971). See Erickson v. U-Haul
Int’l., 767 N.W.2d 765, 772 (Neb. 2009). Under the Restatement, contract issues are
governed by the law of the state with the most significant relationship to the parties or
transaction at issue. Restatement, supra, § 188(a). The Court has reviewed the factors set
forth in § 188 and finds that Nebraska law controls.

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Tort liability means liability that would be imposed by law in the
absence of contracts or agreements.
Filing 1 at ¶ 30; filing 1-2 at 18.
For the Contractual Liability exclusion to apply, GOPAC's potential
liability to Fairbank must have arisen "by reason of the assumption of
liability in a contract or agreement." Filing 1 at ¶ 29; filing 1-2 at 8–9. This
language—and the Contractual Liability exclusion, exceptions and all—is
standard language found in many commercial general liability (CGL) policies.
See Am. Family Mut. Ins. Co. v. Am. Girl, Inc., 673 N.W.2d 65, 74, 79 (Wis.
2004).
"'The key to understanding this exclusion . . . is the concept of liability
assumed.'" Id. at 80 (quoting 2 Rowland H. Long, The Law of Liability
Insurance § 10.05[2], 10–56, 10–57 (2002)); see also Fisher v. Am. Family
Mut. Ins. Co., 579 N.W.2d 599, 603 (N.D. 1998).
"Although, arguably, a person or entity assumes liability (that is,
a duty of performance, the breach of which will give rise to
liability) whenever one enters into a binding contract, in the CGL
policy and other liability policies an 'assumed' liability is
generally understood and interpreted by the courts to mean the
liability of a third party, which liability one 'assumes' in the
sense that one agrees to indemnify or hold the other person
harmless."
Am. Girl, 673 N.W.2d at 80 (quoting 21 Eric Mills Holmes, Holmes'
Appelman on Insurance § 132.3, 36-37 (2d ed. 2000)).
The term "assumption" must be interpreted to add something to the
phrase "assumption of liability in a contract or agreement." If the phrase is
read to apply to all liabilities sounding in contract, the term "assumption" is
rendered superfluous. Id. at 80–81. Thus, the majority of courts have
concluded that this exclusion applies only where the insured has
contractually assumed the liability of a third party, as in an indemnification
or hold harmless agreement. See, e.g., Ferrell v. West Bend Mut. Ins. Co., 393
F.3d 786, 795 (8th Cir. 2005) (applying Wisconsin law and following Am.
Girl); Owners Ins. Co. v. Ala. Powersport Auction, LLC, No. 5:14-cv-147, 2015
WL 3439126, at *10–13 (N.D. Ala. May 28, 2015); Goodyear Tire & Rubber
Co. v. Dynamic Air, Inc., No. 02-1218, 2004 WL 2501196, at *4–5 (D. Minn.
Nov. 4, 2004); Desert Mountain Props. Ltd. P'ship v. Liberty Mut. Fire Ins.
Co., 236 P.3d 421, 431–32 (Ariz. Ct. App. 2010); Broadmoor Anderson v. Nat'l
Union Fire Ins. Co. of La., 912 So. 2d 400, 407 (La. Ct. App. 2005); Travelers
Prop. Cas. Co. of America v. Peaker Servs., Inc., 855 N.W.2d 523, 528–34
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(Mich. Ct. App. 2014); Fischer, 579 N.W.2d at 602–04; Gibbs M. Smith, Inc. v.
U.S. Fid. & Guar. Co., 949 P.2d 337, 341–42 (Utah 1997); see also, Olympic,
Inc. v. Providence Wash. Ins. Co. of Alaska, 648 P.2d 1008, 1010–11 (Alaska
1982); USM Corp. v. First State Ins. Co. 652 N.E.2d 613, 615–16 (Mass.
1995); cf. Day v. Toman, 266 F.3d 831, 835 (8th Cir. 2001); but see Gilbert
Tex. Const., L.P. v. Underwriters at Lloyd's London, 327 S.W.3d 118, 124–133
(Tex. 2010). Conversely, the exclusion does not operate to exclude coverage
for any and all liabilities to which the insured is exposed under the terms of
the contracts it makes generally. Am. Girl, 673 N.W.2d at 81.
The majority interpretation is reasonable in light of the fact that all
business transactions are entered into according to some sort of agreement or
understanding. Gibbs, 949 P.2d at 342. If the exclusion were interpreted
otherwise, so as to exclude all liability associated with a contract by the
insured, then CGL policies would be severely limited in their coverage. Id.
The majority interpretation also accords with the generally-recognized
understanding of the term "assumption," which is defined as "[t]he act of
taking (esp. someone else's debt or other obligation) for or on oneself." Black's
Law Dictionary 143 (9th ed. 2009) (emphasis supplied).
In the Product Guarantee, GOPAC agreed to
indemnify and hold harmless . . . [Fairbank] . . . from all claims,
damages, causes of action, suits, proceedings, judgments,
charges, losses, costs, liabilities, and expenses . . . arising from
any products (raw materials) as delivered to [Fairbank] by
[GOPAC], that do not comply with the provisions of [Fairbank's]
Raw Material Specifications or that are caused by the
negligence . . . of GOPAC . . . .
Filing 1 at ¶ 18; filing 1-1 at ¶ 14 & p. 16. At first glance, it would seem that
Fairbank's claims arise out of an assumption of liability by GOPAC.
However, in the New York suit, Fairbank is not seeking indemnity
from GOPAC for Fairbank's own conduct. In other words, Fairbank is not
asking GOPAC to assume Fairbank's liability to third parties, such as the
persons who were injured by consuming tainted beef and who have brought
tort suits against Fairbank. See filing 1-1 at ¶¶ 1–4. Rather, Fairbank asserts
that GOPAC is contractually liable under the Product Guarantee for the
recall costs, lost profits, and recall-related attorney fees, costs, and expenses
that Fairbank incurred as a result of the tainted beef. See, e.g., filing 1-1 at
¶¶ 5, 37, 39, 46, 53. Thus, Fairbank's claims are for "damages . . . arising
from" GOPAC's own alleged negligence or the alleged failure of GOPAC's
products to comply with certain specifications. Fairbank seeks to hold

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GOPAC liable for GOPAC's own conduct, and is not asking GOPAC to
assume liability for Fairbank's conduct. Thus, the exclusion does not apply.
Alternatively, the Court finds that an exception to the exclusion applies
to at least some of the claims asserted by Fairbank. The exclusion contains
an exception for liability that GOPAC "would have in the absence of the
contract or agreement." Filing 1 at ¶ 29; filing 1-2 at 8–9. Fairbank's
complaint asserts multiple theories of recovery: not only claims for breach of
contract and express warranty, but also for the breach of the implied
warranties of merchantability and fitness for a particular purpose. Those
implied warranties attached independent of the Product Guarantee, and thus
would have arisen "in the absence of the contract." See USM Corp., 652
N.E.2d at 616.
The Court does not read this exception as applying only to liability
arising in the absence of any contract. From the use of the phrase "the
contract" immediately following the exclusion, it is clear that the exception is
referring to the contract in the exclusion, i.e., one in which the insured has
assumed the liability of another. Compare this language to the definition of
"tort liability" in the "insured contract" section—"liability that would be
imposed by law in the absence of contracts or agreements." The latter
provision demonstrates that the drafters of the Policy knew how refer to
liability in the absence of any contracts.
In sum, the exclusion does not apply, and if it does, an exception to the
exclusion does apply, to at least a portion of the claims asserted in the New
York suit. And if one of the claims is covered, the duty to defend is triggered
as to the whole suit.3 See, Babcock & Wilcox, 430 F.2d at 537. Thus, to the
extent that Continental seeks a declaration of non-coverage based on the
Contractual Liability exclusion, that request fails to state a claim for relief.
To be clear: the Court is not holding that Continental does have a duty to
defend. GOPAC has moved to dismiss Continental's request for a declaration
of non-coverage, and that is the scope of the Court's holding. If GOPAC
desires an affirmative declaration of coverage, it will need to come forward
with evidence that establishes such coverage.
C. Ripeness of the Remainder of Continental's Complaint
GOPAC contends that Continental's request for a declaration regarding
its duty to indemnify is not ripe for review. Until it becomes legally obligated
to pay something in the New York suit, GOPAC argues, any duty to

Continental asserts that its claim relating to its duty to defend should not be dismissed
because GOPAC has attacked only the Contractual Liability exclusion, and other exclusions
may apply. But Continental has not explained what those exclusions might be—it has only
pleaded the Contractual Liability exclusion, and has not raised any others.
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indemnify is contingent upon facts and circumstances which are uncertain
and yet to be determined.
The ripeness doctrine flows both from Article III's "cases" and
"controversies" limitation and also from prudential considerations. Pub.
Water Supply Dist. No. 10 of Cass Cnty., Mo. v. City of Peculiar, Mo., 345 F.3d
570, 572 (8th Cir. 2003). The ripeness inquiry requires examination of both
the fitness of the issues for judicial decision and the hardship to the parties of
withholding court consideration. Id. at 572–73. The ripeness doctrine
prevents the Court, through avoidance of premature adjudication, from
entangling itself in abstract disagreements. Abbott Labs. v. Gardner, 387
U.S. 136, 148 (1967).
Continental has not explained the basis for its claim that it lacks a
duty to indemnify. Thus, the Court cannot determine if the claim is ripe or
not.4 If Continental's claim presents a question of law, based upon the
language of the Policy, then it may be ripe for review. See, e.g., Capitol
Indem. Corp. v. Miles, 978 F.2d 437, 438 (8th Cir. 1992). In contrast, if
Continental's claim requires consideration of unresolved factual disputes also
at issue in the New York suit, it may not be ripe. See, e.g., Atl. Cas. Ins. Co. v.
Value Waterproofing, Inc., 918 F. Supp. 2d 243, 261 (S.D.N.Y. 2013). In that
case, the Court might also be less inclined to exercise its discretion under the
Declaratory Judgment Act. See, e.g., Med. Assur. Co., Inc. v. Hellman, 610
F.3d 371, 379 (7th Cir. 2010); Aetna Cas. and Sur. Co. v. Jefferson Trust and
Sav. Bank of Peoria, 993 F.2d 1364, 1366 (8th Cir. 1993).
Therefore, the Court will order Continental to show cause why its dutyto-defend claim should not be dismissed in its entirety for failure to state a
claim. And the Court will order Continental to show cause why the remainder
of its complaint should not be dismissed for failure to state a claim and lack
of ripeness. Accordingly,
IT IS ORDERED:
1.

GOPAC's motion to dismiss (filing 16) is granted in part, as
set forth above.

2.

Continental is ordered to show cause, on or before July 7,
2015, why the Court should not dismiss its complaint, as
set forth above. GOPAC may file a brief in opposition on or
before July 21, 2015.

Continental has also sought a declaration of the parties' rights and obligations under the
Policy, including the limits of Continental's duty to defend and indemnify in the New York
suit. This issue is likewise too undeveloped for the Court to evaluate its merits or ripeness.
4

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Dated this 22nd day of June, 2015.
BY THE COURT:

John M. Gerrard
United States District Judge

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