Aspen Specialty Insurance v. Utah Local Governments Trust et al

Filing 49

MEMORANDUM DECISION AND ORDER granting in part and denying in part 37 Motion for Summary Judgment; granting in part and denying in part 31 Motion for Summary Judgment; denying 38 Motion to Strike; Administratively Closing this Case pending resolution of the Jamison Case. Signed by Judge David Nuffer on 6/4/13 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
ASPEN SPECIALTY INSURANCE
COMPANY,

MEMORANDUM DECISION AND
ORDER GRANTING SUMMARY
JUDGMENT ON DUTY TO DEFEND;
STAYING PROCEEDINGS; AND
DENYING MOTION TO STRIKE

Plaintiff,
v.
UTAH LOCAL GOVERNMENTS TRUST
AND ULGIT MARKETING INC.,

Case No. 2:12-cv-00176 DN
District Judge David Nuffer

Defendant.

Table of Contents
Case Overview ................................................................................................................................ 1
Motion to Strike .............................................................................................................................. 1
Motion for Summary Judgment ...................................................................................................... 2
Issues and Claims in this Case and Motions ....................................................................... 2
Undisputed Facts ................................................................................................................. 3
Construction of Insurance Policies ..................................................................................... 4
Duty to Defend and Duty to Indemnify .............................................................................. 4
Duty to Indemnify Not Ripe for Determination ................................................................. 5
Duty To Defend .............................................................................................................................. 9
Analysis of the Policy ......................................................................................................... 9
Effect of Definition of Claims Expenses .......................................................................... 11
Effect of Exclusions on Duty to Defend ........................................................................... 13
ORDER ......................................................................................................................................... 14

CASE OVERVIEW
This case is a dispute between an insurer and an insured, in which each seeks declaration
of its rights and duties under the insurance agreement. The duty of the insurer to defend a suit in
Utah State court and the duty of the insurer to pay claims in that case are both presented on
opposing motions for summary judgment. This order grants summary judgment, declaring that
the insurer has the duty to defend the state case, and otherwise stays the case until the conclusion
of the state case.
MOTION TO STRIKE
The insurer filed a motion to strike 1 the insured’s cross-motion for summary judgment, 2
because “it was filed well after the dispositive motion deadline. Defendants did not request an
extension or otherwise seek the Court’s permission to file their untimely motion . . . .” 3 The
motion to strike is denied. “Rule 56 expressly declares that ‘the court may . . . grant summary
judgment for a nonmovant . . . or consider summary judgment on its own after identifying for the
parties material facts that may not be genuinely in dispute.’” 4 Failure to take this well-briefed
opportunity to move this case toward resolution would be contrary to the mutual goal of court
and counsel “to secure the just, speedy, and inexpensive determination of every action and
proceeding.” 5

1

Docket no. 38, filed April 15, 2013.

2

[ULGT’s] Cross Motion for Summary Judgment and Supporting Memorandum (Cross Motion 37) at v, docket no.
37, filed April 1, 2013.

3

Id. at 2.

4

Memorandum in Opposition to Aspen’s Motion to Strike Defendants’ Cross Motion for Summary Judgment at 2,
docket no. 40, filed April 24, 3013.
5

Fed. R. Civ. P. 1

1

MOTION FOR SUMMARY JUDGMENT
Issues and Claims in this Case and Motions
Aspen, the insurer, filed this declaratory action, alleging nine causes of action. The
defendants are Utah Local Governments Trust and ULGIT Marketing, Inc. which are collectively
referred to as ULGT.
ULGT claims there is no case or controversy as to Aspen’s first cause of action, relating
to a distinct third party claim (QBE/Unigard Case). 6 That absence of a real issue is dependent on
the current posture of that case. 7 Therefore that cause of action will be dismissed without
prejudice.
The eight other claims relate to a single third party claim (Jamison Counterclaim), and
are at issue. Four causes of action seek a declaration that Aspen’s policy does not require a
defense to the Jamison Counterclaim, and four seek to declare that Aspen has no duty to defend
or indemnify on the Jamison Counterclaim. ULGT’s counterclaim “seeks a declaration from this
Court that Aspen is obligated to provide coverage under the Policy and defense [sic] ULGT with
respect to the [Jamison] counterclaims.” 8
Both parties move for summary judgment on all claims remaining after adjudication of
Aspen’s first cause of action.

6

“The first claim [in the Third Amended Complaint] seeks a declaration that Aspen is not obligated to indemnify
ULGT with respect to the Unigard/QBE lawsuit – a proposition ULGT does not contest.” Cross Motion 37 at v.
See Third Amended Complaint for Declaratory Judgment at 9, docket no. 30, filed December 14, 2012.

7

Cross Motion 37 at vi.

8

Answer to Third Amended Complaint and Counterclaim of Utah Local Governments Trust at 9, ¶ 6, docket no. 34,
filed March 8, 2013.

2

Undisputed Facts
The following factual statements from ULGT’s motion for summary judgment are not
disputed. 9
1.

ULGT is a Utah public agency insurance mutual.

2.

ULGT obtained a “Trustees Errors & Omissions Liability Insurance” Policy from

Aspen. The Policy names ULGT (both Utah Local Governments Trust and ULGIT Marketing) as
insureds. A copy of the Policy is docket entry 2-4 in this case, filed February 13, 2012.
3.

ULGT currently is the plaintiff in a lawsuit against Don Jamison, which is

pending in the Third Judicial District Court for the State of Utah (Jamison Case). Jamison
previously was an insurance agent for Unigard Insurance Company (Unigard). In the Jamison
Case, ULGT alleges Jamison improperly received millions of dollars that properly belong to
ULGT.
4.

Jamison responded to ULGT’s claims by, among other things, filing a

counterclaim complaint (Jamison Counterclaim). A copy of the Jamison Counterclaim is docket
entry 22-4 in this case, filed October 1, 2012. The Jamison Counterclaim asserts five causes of
action and are titled: (1) Breach of Contract; (2) Breach of the Covenant of Good Faith and Fair
Dealing; (3) Intentional and Negligent Infliction of Emotional Distress; (4) Punitive Damages;
and (5) Attorneys Fees and Litigation Expenses. ULGT tendered the defense of the Jamison
Counterclaim to Aspen, which Aspen accepted subject to a reservation of rights. Aspen then
filed this declaratory judgment action, seeking to establish it has no defense or indemnity
obligations with respect to the Jamison Counterclaim.

9

Plaintiff Aspen Specialty Insurance Company’s Opposition to Defendants’ Cross-Motion for Summary Judgment
(Aspen Opposition 41) at 3-5, docket no. 41, filed May 2, 2013. Some of the text of these statements has been
deleted because it is not material, and some text has been altered to resolve technical points of dispute. References
to documents in the record have been added.

3

5.

The Jamison Case is pending, and judgment has not been rendered on any of the

Jamison Counterclaims.
Construction of Insurance Policies
“An insurance policy is merely a contract between the insured and the insurer and is
construed pursuant to the same rules applied to ordinary contracts.” 10 But insurance policies will
be “construed liberally in favor of the insured and their beneficiaries so as to promote and not
defeat the purposes of insurance.” 11 “[P]rovisions that limit or exclude coverage should be
strictly construed against the insurer.” 12
Utah courts give the language in insurance policies its plain meaning. 13 The wording is
given the meaning it has for laypersons in daily usage. 14
“[T]he terms of insurance contracts . . . should be read as a whole, in an attempt to
harmonize and give effect to all of the contract provisions.” 15 But, “if an insurance contract has
inconsistent provisions, one which can be construed against coverage and one which can be
construed in favor of coverage, the contract should be construed in favor of coverage.” 16
Duty to Defend and Duty to Indemnify
Like most insurance agreements, the policy in this case includes a duty to defend, and a
duty to indemnity. “An insurer’s duty to defend a lawsuit against its insured is both separate and

10

Alf v. State Farm Fire and Cas. Co., 850 P.2d 1272, 1274 (Utah 1993).

11

USF&G v. Sandt, 854 P.2d 519, 521 (Utah 1993)(quoting Richards v. Standard Acc. Ins., Co., 200 P. 1017, 1020
(Utah 1921)).

12

USF&G v. Sandt, 854 P.2d at 523.

13

Marriott v. Pac. Nat’l Life Assurance Co., 467 P.2d 981, 983 (Utah 1970).

14

Fuller v. Director of Finance, 694 P.2d 1045, 1046-47 (Utah 1985).

15

Nielsen v O’Reilly, 848 P.2d 664, 665 (Utah 1992).

16

USF&G, 854 P.2d at 523.

4

distinct from the insurer’s duty to indemnify its insured for liability that is imposed against the
insured after trial.” 17 These two duties are thus different in time and in scope.
The duty to defend is assessed when a claim is asserted against the insured, but the duty
to indemnify is determined only when the true scope of the insured’s liability has been
adjudicated or agreed. 18 The time gap permits the insured a defense when a claim is asserted, but
reserves all issues on payment by the insurer until the nature of the claim is decided.
“[A]n insurer’s duty to defend is broader than its duty to indemnify.” 19 “When there are
covered and non-covered claims in the same lawsuit, the insurer is obligated to provide a defense
to the entire suit . . . .” 20 “[A]n insurer may have a duty to defend an insured even if . . . the
insurer is ultimately not liable to indemnify the insured.” 21
Duty to Indemnify Not Ripe for Determination
Because the duty to defend arises when the claim or suit initiates, a declaration of that
duty is appropriate earlier than a declaration of the duty to indemnify or pay. The duty to
indemnify can only be determined after final adjudication of the merits of the allegedly insured
claim. “The duty to indemnify relates to liability actually imposed on the insured for claims
falling within the scope of coverage.” 22 For this reason, cases seeking declaratory relief often
adjudicate first the duty to defend and defer consideration of the duty to indemnify. “Put simply,
‘[a] declaratory judgment action to determine an insurer’s duty to indemnify its insured, brought
prior to a determination of the insured’s liability, is premature since the question to be
17

14 Couch on Insurance. § 200:3

18

Id.

19

Sharon Steel Corp. v. Aetna Cas. & Sur. Co., 931 P.2d 127, 133 (Utah 1997)

20

Benjamin v. Amica Mut. Ins. Co., 140 P.3d 1210, 1216 (Utah 2006)(citations and alteration omitted).

21

Fire Ins. Exch. v. Estate of Therkelsen, 27 P.3d 555, 560 (Utah 2001).

22

Mount Vernon Fire Ins. Co. v. Okmulgee Inn Venture, LLC, 451 Fed.Appx. 745, 749 (10th Cir. 2011)(emphasis
added).

5

determined is not ripe for adjudication.’” 23 “[T]he duty to indemnify must await resolution of
the underlying suits.” 24
Illustrating the breadth of the duty to defend and the need to defer the determination of
indemnification, Harbin v Assurance Co. of America 25 held that an insurer had a duty to defend a
case, even though the “state court action judgment . . . sought [recovery] for injuries resulting
from an intentional assault” while “[t]he policy impose[d] no liability on the insurer for such
injuries.” 26 “[T]he claim may ultimately be established to be within policy coverage. While at
the moment we cannot conceive of an unintentional assault, the possibility remains that a
judgment may ultimately be entered in the state action imposing liability on the basis of
unintentional conduct of the insured.” 27 “Intent is to be determined . . . by the finder of the facts
in the lawsuit brought by the claimant of the injuries.” 28 “[R]ecovery may be had on grounds not
asserted in the complaint. The possibility that recovery in the state court action may be within
the policy coverage cannot be ignored.” 29
Aspen cites a case 30 setting out the framework for a court’s discretionary decision to
grant or refuse (or defer) declaratory relief. “[T]he district court is not obliged to entertain every
justiciable declaratory claim brought before it. The Supreme Court has long made clear that the

23

United Nat’l Ins. Co. v. Dunbar & Sullivan Dredging Co., 953 F.2d 334, 338 (7th Cir. 1992)(quoting Maryland
Cas. Co. v. Chicago & Northwestern Transp. Co., 466 N.E.2d 1091, 1095–96 (1984)).
24

United Nat’l Ins. Co,. 953 F.3d at 338.

25

308 F.2d 748 (10th Cir. 1962).

26

Id. at 750.

27

Id.

28

Id. at 749-50.

29

Id. at 750.

30

State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979 (10th Cir. 1994)

6

Declaratory Judgment Act ‘gave the federal courts competence to make a declaration of rights; it
did not impose a duty to do so.’” 31 The case sets forth factors district courts should consider.
•

Will a declaration of rights, under the circumstances, serve to clarify or settle legal
relations in issue?

•

Will it settle the controversy?

•

Is the declaratory remedy being used merely for the purpose of procedural fencing or
to provide an arena for a race to res judicata?

•

Will use of a declaratory action increase friction between federal and state courts and
improperly encroach upon state jurisdiction?

•

Is there an alternative remedy which is better or more effective? 32

Under these criteria, Aspen’s duty to defend should be determined now, but the
declaration of a duty to indemnify should be reserved. The duty to defend needs to be decided
before the Jamison Case is over. Aspen needs to provide that defense. Proceeding on the duty to
indemnify now would require ULGT/ULGIT to advocate the various theories of Jamison’s
counterclaim in this action while simultaneously resisting those claims in state court. That
would be a strange circumstance. And any decision in this case on the duty to indemnify based
on a simulated understanding of the Jamison outcome could be entirely defeased by
developments in the Jamison Case. Declaratory decision of the duty to pay should not precede
resolution of the many uncertainties ahead in the Jamison litigation. Declaratory decision of the
duty to pay by this court will not end the Jamison Case. Litigation of all the Jamison theories
here would be a wasteful duplication of the state court process. The decision on the duty to
indemnify should be deferred until judgment is entered (or settlement reached) in the Jamison
Case.

31

Id. at 982 (quoting Pub. Affairs Assocs., Inc. v. Rickover, 369 U.S. 111, 112 (1962)).

32

Mhoon, 31 F.3d at 983.

7

None of the other cases on which Aspen relies help Aspen’s position that the duty to
indemnify should be determined now.
•

Maryland Casusalty Co. v. Pacific Coal & Oil Co. 33 holds that a declaratory action
between an insured and insurer while a state court action is pending does state a cause of
action under the Declaratory Judgment Act because there is an actual controversy.

•

American States Insurance Co. v. Kearns 34 decided that a lower court was in error for
dismissing rather than staying a declaratory action while a state action against the insured
was pending. (Notably, that insurer defended the state action while pursuing the federal
declaratory action.)

•

Allendale Mutual Insurance Co. v. Kaiser Engineers 35 permitted a declaratory action
regarding subrogation rights – not coverage – to move forward after judgment in a state
case in favor of the insurer and against the insured, because the statute of limitations on
the insurer’s subrogation claim would likely expire during the state appeal. “The
contingent nature of the right or obligation in controversy will not bar a litigant from
seeking declaratory relief when the circumstances reveal a need for a present
adjudication.” 36 No such circumstances exist here.

•

Seguros Tepeyac, S.A. v. Jernigan 37 affirmed the validity of a declaratory judgment
against the insurer as to future payments yet unmade to a third party who already held a
judgment against the insured.

•

In re: Aramark Sports & Enertainment Services., LLC,38 decided under admiralty law
and the Shipowner’s Liability Act of 1851, 39 held that enforceability of an indemnity and
exculpatory provision in a boat rental contract was ripe for declaratory decision even
though the negligence claims between the owner/lessor and lessee and boat passengers
were not yet resolved. But significantly, the court held the owner/lessor had to “defend
against the claims [of the boat occupants] (and resolve them) before seeking
indemnification from [the boat lessee].” 40
Decision on the duty to indemnify will be reserved until resolution of the Jamison

Counterclaims.
33

312 U.S. 270 (1941).

34

15 F.3d 142 (9th Cir.1994).

35

804 F.2d 592 (10th Cir. 1986).

36

Id. at 594.

37

410 F.2d 718, 729 (5th Cir. 1969).

38

No. 2:09–CV–637–TC, 2012 WL 3776859 (D. Utah Aug. 29, 2012),

39

46 U.S.C. §§ 30501–30512.

40

In re Aramark, 2012 WL 3776859, at *7.

8

DUTY TO DEFEND
Analysis of the Policy
The policy contains:
•

Declaration (two pages);

•

Schedule of Applicable forms (one page);

•

Trustees Errors & Omissions Liability Policy (seven pages, nine major sections);

•

Employment Practices Liability Insurance Coverage Endorsement (three pages, six
major sections, replacing Exclusion E. in the Trustee’s Policy); and

•

Nine endorsements.

The Trustees Errors & Omissions Liability Policy separately states the duty to indemnify and the
duty to defend. The duties are described in two distinct sections.
I. INSURING AGREEMENTS
Trustees Errors and Omissions Liability Policy
The Company will pay on behalf of the Insured loss which the Insured shall become
legally obligated to pay as a result of a Claim first made against the Insured during the
Policy Period or the Extended Reporting Period, if applicable, for a Wrongful Act
which takes place during or prior to the Policy Period.
Provided, however, as a condition precedent to any such coverage under this Insuring
Agreement, the Insured shall report such Claim to the Company as soon as practicable
but in no event later than sixty (60) days after the termination of the Policy Period or
Extended Reporting Period, if applicable.
V. DEFENSE AND SETTLEMENT
The Company shall defend any Claim, even if any of the allegations of the Claim are
groundless, false or fraudulent. The Company shall investigate the Claim and, with
written consent of the Insured, shall settle or compromise any Claim as it deems
appropriate. If the Insured refuses to consent to any settlement or compromise
recommended by the Company and acceptable to the claimant, then the Company’s
liability for the Claim shall not exceed the amount which the Company would have paid
for Damages and Claim Expenses at the time the Claim could have been settled or
compromised. 41

41

Docket no. 2-4, filed February 13, 2012.

9

Both of these sections use the defined term “Claim” which appears in Section III, Definitions.
III. DEFINITIONS
B. Claim means:
1) a written demand for civil damages or other civil relief that appears reasonably
likely to involve payment under this Policy commenced by the Insured’s receipt of
such demand,
2) civil proceeding commenced by the service of a complaint or similar pleading, or
[sic] 42
The first clause of the “Claim” definition makes reference to coverage under the policy.
The second clause does not.
There is no dispute that the Jamison Counterclaim is a “civil proceeding commenced by
the service of a complaint or similar pleading.” 43 Therefore it appears from the plain language of
the policy that Aspen is obligated to defend the Jamison Counterclaim.
This is an unusual duty to defend provision. In reported cases which quote the duty to
defend clause under consideration, the clauses have some reference to coverage, similar to the
reference contained in the first clause of this policy’s definition of “Claim.” For example, in
Benjamin v Amica Mutual Insurance Co. 44 the clause read:
If a claim is made or a suit is brought against an insured for damages because of bodily
injury ... caused by an occurrence to which coverage applies, [Amica] will:
....
2. Provide a defense at [Amica’s] expense by counsel of [Amica’s] choice, even if the
suit is groundless, false or fraudulent. 45
In Fire Insurance Exchange v. Rosenberg, the clause stated: “At our expense and with attorneys
of our choice, we will defend an insured against any covered claim or suit. 46 The clauses

42

Id.

43

Id.

44

140 P.3d 1210 (Utah 2006).

45

Id. at 1214.

46

930 P.2d 1202, 1203 (Utah Ct. App. 1997).

10

considered in those cases wrap consideration of coverage into the duty to defend. Aspen’s policy
does not.
Because most policy language relates the duty to defend to coverage, cases speak of the
need to compare the policy to the complaint, or even to external facts, if the policy requires that
comparison. “[W]hen the terms of an insurance contract condition the duty to defend upon
allegations contained on the face of the complaint, ‘extrinsic evidence is irrelevant to ...
determin[e] ... whether a duty to defend exists.’” 47 This is sometimes referred to as an “eightcorners” analysis. 48 “On the other hand, when policy terms define the scope of the duty to
defend in reference to something other than the allegations in the complaint, a court may look
beyond the text of the complaint . . . .” 49 This may be necessary if the policy qualifies the duty
to defend by some external fact.
In this policy, the insurer’s duty to defend any “civil proceeding commenced by the
service of a complaint or similar pleading” does not refer to coverage under the policy or to any
external fact. Therefore, under the Aspen policy section establishing a duty to defend, Aspen
must defend the Jamison Counterclaim because ULGIT and ULGT are insured by Aspen.
Effect of Definition of Claims Expenses
Aspen argues that the definition of Claims Expenses in the policy defeases its broad duty
to defend. 50
C. Claims Expenses means that portion of loss consisting of reasonable and necessary
fees (including attorneys’ fees and experts’ fees) and expenses incurred in the defense or

47

Equine Assisted Growth and Learning Ass’n v. Carolina Cas. Ins. Co., 266 P.3d 733, 736 (Utah 2011)(citing and
quoting Fire Insurance Exchange v. Estate of Therkelsen, 27 P.3d 555, 561 (Utah 2001).
48

Equine Assisted Growth, 266 P.3d at 737-38.

49

Id. at 736.

50

Plaintiff Aspen Specialty Insurance Company’s Reply in Support of its Motion for Summary Judgment at 8,
docket no. 39, filed April 18, 2013.

11

appeal of a Claim, but shall not include the wages, salaries, benefits or expenses of the
Insureds.
This definition alone would not exclude the Jamison Counterclaim from the duty to
defend, because it is a “civil proceeding commenced by the service of a complaint or similar
pleading” and thus qualifies as a Claim. Nothing in the duty to defend section or Claim
definition refers to Claims Expenses. But Aspen also bases its argument on the entirely separate
sections of EXCLUSIONS and INSURING AGREEMENTS.
[T]he preamble to Section II, Exclusions, makes clear that the Exclusions may be used to
negate a duty to defend. Specifically, Section II of the Policy states:
The Company is not obligated to [sic] Damages or Claims Expenses for any
Claim based upon, arising out of, directly or indirectly resulting from or in
consequence of, or in any way involving:
[various exclusions are listed]
....
Aspen therefore has no duty to defend and/or pay “Claims Expenses” if any exclusion (or
multiple exclusions) applies to preclude coverage for the claims at issue. 51
Aspen’s fallacy is its attempt to tie the policy exclusions to its duty to pay established in
Section I into the duty to defend established in Section V. Aspen claims “the preamble to
Section II, Exclusions, makes clear that the Exclusions may be used to negate a duty to
defend.” 52 But the preamble to Section II, Exclusions says no such thing. Aspen quotes Section
II, Exclusions (supra) but omits in its quotation the key word “pay.” The preamble actually
reads:
The Company is not obligated to pay Damages or Claims Expenses for any Claim based
upon, arising out of, directly or indirectly resulting from or in consequence of, or in any
way involving:

51

Aspen Opposition 41 at 25.

52

Id.

12

The policy exclusions in Section II apply to the duty to pay established in Section I, and
do not, by the express language of the preamble to Section II, apply to the duty to defend
established in Section V. The question of whether Aspen may not be obligated to indemnify for
Claims Expenses arising out of excluded subject matter will be reserved for later decision, 53 but
Aspen is obligated to defend all Claims.
Effect of Exclusions on Duty to Defend
As has been stated before, most insurance agreements tie the duty to defend to the
coverage of the policy. In this policy, Aspen is only obligated to defend unfiled demands if they
(a) seek civil damages or other civil relief; (b) appear reasonably likely to involve payment under
the policy; and (c) the insured has received the demand. But Aspen’s duty to defend civil
proceedings has no such limitations. And the Exclusions in the policy deal only with the duty to
pay, not the duty to defend. The language in reported cases about the duty to defend depending
on “whether the complaint alleges a risk within the coverage of the policy” 54 assumes that the
policy terms subject the duty to defend to a limitation related to payment coverage. There is no
generalized law outside the terms of insurance agreements limiting the duty to defend to the
terms of payment coverage. The parties’ agreement controls.
Given the broad language of the duty to defend which arises when suit is brought against
the insured, it is not necessary to examine the payment coverage exclusions.

53

Allowing Aspen to repudiate defense of the Jamison Case (as it has done) and then assert it is not obligated to pay
defense expenses incurred by ULGT involves many issues not briefed or ripe.
54

Benjamin, 140 P.3d at 1214 (citations and quotations omitted).

13

ORDER
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that ULGT’s Cross Motion
for Summary Judgment 55 is GRANTED IN PART AND DENIED IN PART and Aspen
Specialty Insurance Company’s Motion for Summary Judgment 56 is GRANTED IN PART AND
DENIED IN PART.
IT IS FURTHER ORDERED that Aspen Specialty Insurance Company has the duty to
defend the Jamison Counterclaim. ULGT is granted summary judgment on its counterclaim that
Aspen must defend “ULGT with respect to the counterclaims Jamison has asserted against
ULGT.” 57 The issue of attorneys’ fees and expenses on this claim is reserved.
IT IS FURTHER ORDERED that Aspen’s first cause of action of the Third Amended
Complaint for declaratory judgment is dismissed without prejudice.
IT IS FURTHER ORDERED that the balance of this case is stayed pending resolution of
the Jamison Case. The parties shall file status reports on the Jamison Case on January 31, April
30, July 31 and October 31 of each year, and within fourteen days of resolution of that case.
This case will be administratively closed pending the resolution of the Jamison Case.

55

Docket no. 37, filed April 1, 2013.

56

Docket no. 31, filed February 28, 2013.

57

Answer to Third Amended Complaint and Counterclaim of Utah Local Governments Trust at 9, ¶ 6, docket no.
34, filed March 8, 2013.

14

IT IS FURTHER ORDERED that trial and related dates are STRICKEN.
IT IS FURTHER ORDERED that Plaintiff’s motion to strike 58 is DENIED.

Signed June 4, 2013.
BY THE COURT

________________________________________
District Judge David Nuffer

58

Docket no. 38, filed April 15, 2013.

15