Liberty Mutual Insurance Group v. Panelized Structures, Inc.

Filing 89

ORDER that Liberty Mutuals motion to dismiss the counterclaims 77 is GRANTED. Signed by Judge James C. Mahan on 12/13/11. (Copies have been distributed pursuant to the NEF - ECS)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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LIBERTY MUTUAL INSURANCE
GROUP,

2:10-CV-1951 JCM (PAL)

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Plaintiff,

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v.

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PANELIZED STRUCTURES, INC., et
al.,

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Defendants.

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ORDER

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Presently before the court is plaintiff and counterdefendant, Liberty Mutual Insurance

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Group’s (“Liberty Mutual”) motion to dismiss counterclaims for failure to state a claim not barred

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by the statute of limitations. (Doc. #77). Defendant and counterclaimant Panelized Structures, Inc.

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(“PSI”) has filed an opposition (doc. #81), to which Liberty Mutual has replied (doc. #84).

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Liberty Mutual argues that the counterclaims are subject to a four year statute of limitations.

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Furthermore, Liberty Mutual contends, PSI was made aware of its causes of action against Liberty

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Mutual by (at the latest) February 2006, when Liberty Mutual commenced the subrogation action

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in state court. Nevertheless, PSI waited until February 2011, five years after its claims accrued, to

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file the counterclaim. Accordingly, Liberty Mutual urges the court to dismiss the counterclaims as

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time barred.

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PSI’s opposition does not dispute the application of a four year statute of limitations. Instead,

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it seemingly argues that its causes of action arise from Liberty Mutual’s alleged breaches of the duty

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James C. Mahan
U.S. District Judge

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to defend its insured. Any causes of action arising as a result of the failure to defend, PSI argues,

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do not accrue until a final judgment has been entered against the insured. Regardless of the merits

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of this argument, PSI’s allegations regarding a breach of the duty to defend have been stricken from

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the counterclaim. See Doc. #67.

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In light of the record before it, this court agrees with Liberty Mutual that the counterclaims
are time barred.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Liberty Mutual’s motion

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to dismiss the counterclaims (doc. #77) be, and the same hereby is, GRANTED.
DATED December 13, 2011.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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