Safeway Inc. v. PDX, Inc. et al
Filing
59
Memorandum Opinion and Order: The Court ORDERS that the deemed motion for summary judgment that was subject to the discussions and rulings during the hearing/conference conducted on the date of the signing of this memorandum opinion and order be, and is hereby granted. (Ordered by Judge John McBryde on 5/29/2015) (trs)
l!.S. O!STHICT COURT
NORTHERN OiSTR!CT Of TEXAS
FILED
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IN THE UNITED STATES DISTRICT rouRT
NORTHERN DISTRICT OF TEXAE
FORT WORTH DIVISION
MAY 2 9 2015
CLERK, U.S. DISTRICT COURT
SAFEWAY INC.,
BY----~~-----
Dcputy
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Plaintiff,
VS.
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PDX, INC.,
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AXIS SURPLUS INSURANCE COMPANY,
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Intervenor.
NO. 4:14-CV-683-A
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Defendant,
and
MEMORANDUM OPINION
and
ORDER
On the date of the signing of this order, the court
conducted a telephone hearing/conference in the above-captioned
action, with counsel for each party on the line, for the purpose
of discussing issues that require resolution before a final
judgment can be entered in this action.
The court considered and made rulings on the defenses of
plaintiff, Safeway, Inc.
("Safeway"), as Safeway defined them on
pages 2 and 3 of the brief it filed May 13, 2015, in support of
Safeway's response to the deemed motion for summary judgment of
intervenor, Axis Surplus Insurance Company ("Axis").
Having
ruled that all of those defenses lack merit, the court then
considered the requests made by defendant, PDX, Inc.
("PDX"), and
Axis in their recent joint filings requesting joint payment to
PDX and Axis by Safeway of the $752,932.33 amount mentioned on
page 25 of the March 31, 2015 memorandum opinion and order in
this action.
PDX and Axis, through their counsel, agreed during
today's hearing/conference that PDX is entitled to recover a
$100,374.24 part of such $752,932.33 amount and that Axis should
receive the $652,558.09 balance of such $752,932.33 total.
The court now realizes that it overlooked in the summary
judgment record as it existed on March 31, 2015, the statement in
the affidavit of Allen Smith that was contained in PDX's appendix
to its motion for summary judgment that as of the date of the
affidavit, February 2, 2015,
"PDX [had] paid attorney's fees and
costs for defense of the California Litigation in the amount of
$100,374.24 by the law firm of Davis Wright Tremaine, LLP," lead
counsel for PDX in the California Litigation, and that "[t]he
amount paid to Davis Wright Tremaine, LLP is the amount of PDX's
retention on its policy of insurance."
App. at 293, , 5.
PDX's Mot. for Summ. J.,
The same information is found in the affidavit
of Allen Smith that was filed May 13, 2015, in support of the
deemed motion for summary judgment as to which the court ruled
today.
Smith Aff. filed May 13, 2015 at 3, , 12.
Thus, the
understanding and agreement expressed between PDX and Axis during
today's hearing/conference simply confirmed what the summary
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judgment record established without dispute.
The wording of the
memorandum opinion and order issued March 31, 2015, is revised to
whatever extent necessary to take into account the revisions
expressed herein concerning the payments related to cost of the
defense of the California Action.
Therefore,
The court ORDERS that the deemed motion for summary judgment
that was subject to the discussions and rulings during the
hearing/conference conducted on the date of the signing of this
memorandum opinion and order be, and is hereby, grantedi
The court further ORDERS that Axis have and recover from
Safeway $652,558.09 of the $752,932.33 amount mentioned in such
March 31, 2015 memorandum opinion and order, and that PDX have
and recover from Safeway the remaining $100,374.24 part of such
$752,932.33 amount, making the total amount PDX is to have and
recover from Safeway $328,664.60.
SIGNED May 29, 2015.
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