American Hallmark Insurance Company of Texas v. American Family Mutual Insurance Company et al

Filing 44

ORDER: Plaintiff's Motion for Summary Judgment 11 and 23 are denied with leave to refile. Signed on February 11, 2010 by Chief Judge Ann L. Aiken. (cp)

IN THE U N I T E D STATES DISTRICT COURT
F R THE DISTRICT OF OREGON O AMERICAN HALLMARK INSURANCE C M A Y OF TEXAS, O PN a foreign corporation,
-

ORDE
C i v . No.

09-976-

Plaintiff,
VS.

AMERICAN FAMILY M T A UU L INSURANCE COMPANY, a f o r e i g n c o r p o r a t i o n ; and JRP D Y A L RWL ENTERPRISES, I N C . , an Oregon corporation,

Defendants.
AIKEN,
Chief Judge:

P l a i n t i f f moves twice f o r p a r t i a l summary judgment

(do,

11, 23).

Those m o t i o n s a r e d e n i e d with l e a v e t o r e f i l e . plaintiff

Briefly,

alleges that d e f e n d a n t American Fam
f a i l e d t o indemn

Mutual I n s u r a n c e Company ("American F a m i l y " )

an a d d i t i o n a l insured g e n e r a l c o n t r a c t o r i n an underlying a c t i
1

-

ORDER

The underlying lawsuit arose out of a construction site inju suffered by a subcontractor's employee that was allegedly caus wholly or in part by the subcontractor. American Family was the primary insurer for any liability the general contractor, William Popoff, that was due to t negligence of Popoff's subcontractor, defendant JRP Drywa Enterprises, Inc. ( " J R P " )

."uring

construction work, JRP

negligence caused a serious injury to JRPfs onsite superviso Gerardo Herrera. Herrera sued Popoff but American Family deni Plaintiff, Popoff's commercial gener

a duty to indemnify.

liability insurer, then settled the case for $900,000 to prote Popoff against a likely verdict in excess of policy limits. Plaintiff alleges that American Family agreed "by contrac that if plaintiff settled the Herrera case, American Family wou limit its defenses in this coverage lawsuit to the following:
(

the policy's Employer's Liability exclusion precludes coverag and (2) that Or. Rev. Stat. 30.140(1) barred indemnity becau there was no claim in the underlying lawsuit that JRP w negligent. Plaintiff's first summary judgment motion asserts that bo issues are "purely legal determinations" although "some limit additional discovery will be needed to evaluate the exact amou of JRP's fault and therefore [plaintiff] proposes this issue briefed separately." Plaintiff's Memo in Support, p.

Similarly, plaintiff's

second summary judgment motion, a1

against American Family, moves against American Family's Fir

I .

Defendant JRP is not involved in the motions at bar.

2 - ORDER

and Fifth Affirmative Defenses. Plaintiff alleges those defen: breach the Defense Limitation Agreement ("DLA")

.

Plaintiff see

a judgment that the DLA is a binding and enforceable lef agreement that is "clear on its face." (Motion 2). The parties agree that there were discussions between t carriers at the mediation in the underlying case. The parti Plaintiff's Memo, p.

further agree that they reached an arrangement to litigate the dispute in a later case. ends. That, however, is where the agreeme

Unfortunately, the parties failed to reduce to a forma

signed writing their arrangement.

The parties now disagree eo
Americ

as to what the parameters of their agreement were.

Family argues that plaintiff has "gone beyond the arrangeme negotiated at the conclusion of the underlying case." Family's Opposition, p . Americ

1.

Plaintiff is

relying on a

attempting to enforce "its version" of a settlement agreemen American Family argues that plaintiff's lawsuit and motion f summary judgment constitute a "repudiation of the carrier arrangement such that American Family is excused of

a

obligation." American Family's Opposition, p. 4. argue that their version of the arrangement

Both carrie is the on

reasonable one. misconstrued

Both carriers assert that the other carrier h arrangement and breached its provision

the

Moreover, American Family notes that as the parties continue participate in discovery, "there may be a basis for Summa Judgment in its favor," specifically on the basis that plainti breached the agreement between the parties.

I .at p. 1. d

The court notes that discovery is not scheduled to close
3

-

ORDER

this case until May 19, 2010.

Upon review of the record at th

early stage, I find questions of fact as to what the arrangeme actually was between the carriers. Specifically, based on t

record before me, I find both parties' interpretations of t arrangement are reasonable.
I find that genuine questions

fact exist as to the material terms of the agreement between t carriers. Therefore, plaintiff's summary judgment motions (doc 11, 23) are denied with leave to refile. are encouraged to contact the court Finally, the parti
if

interested

participating in a settlement conference.

IT IS SO ORDERED.
Dated this d % y of February 2010.

Ann Aiken United States District Judge

4

-

ORDER