This order addresses National Union Fire Insurance Company's motion for summary judgment regarding its duties to defend and indemnify Redbox Automated Retail in various lawsuits. The court grants in part and denies in part the motion. Specifically, the court finds that National Union has a duty to defend Redbox in the Cain lawsuit, which alleges violations of Michigan's video rental privacy law, but not in the Mehrens lawsuit, which alleges violations of California's credit card receipt law. The court also finds that while National Union may issue reservations of rights and set reasonable rate caps when defending insureds, it must do so reasonably and in good faith.
This document is an opinion and order from a United States District Court case between Siltronic Corporation and various insurance companies including Employers Insurance Company of Wausau regarding insurance coverage and payment of defense costs for environmental claims arising from contamination at the Portland Harbor Superfund site. The court considers Siltronic's motion for partial summary judgment that Wausau has a continuing duty to defend Siltronic under its 1978-79 insurance policy and must reimburse unpaid defense costs. The court provides background on the insurance policies and contamination issues before analyzing the relevant policy provisions and ruling on the motions.
Bad Faith Insurance Law Overview, Oregon Alaska Idaho MontanaSeth Row
This document summarizes bad faith law in the Pacific Northwest states of Oregon, Alaska, Idaho, and Montana. It outlines the requirements to bring a bad faith claim in each state, such as needing a special relationship in Oregon or the claim not being fairly debatable in Idaho. The standard of care expected of insurers is also discussed for each state, for example, acting as an ordinarily prudent insurer would in Oregon. Potential remedies like damages, attorney fees, and estoppel are mentioned for the different states. Contact information is provided for the authors at the end.
This document is an opinion and order from a court case between Ash Grove Cement Company and several insurance companies regarding insurance coverage. It discusses that Ash Grove received a request for information from the EPA under CERCLA regarding a Superfund site, and whether this triggers the insurers' duty to defend. The court provides background on the Superfund site, the insurance policies, and communications between the parties. It will determine whether an EPA information request constitutes a "suit" that triggers the duty to defend under the terms of the insurance policies.
Beneficial Motion to Dismiss Based on SB 814Seth Row
Beneficial moves to dismiss the plaintiffs' amended complaint based on Oregon's recently enacted Senate Bill 814. SB 814 amended ORS 465.480 to eliminate contribution claims against insurers like Beneficial that entered into a good faith settlement with their insured, Zidell, regarding environmental claims related to Zidell's Moody Avenue site. The legislation applies retroactively to this case. Zidell and Beneficial negotiated and reached a settlement in good faith to resolve Zidell's claims for insurance coverage relating to the Moody Avenue site. As a result, under the new law, the court lacks jurisdiction over the plaintiffs' contribution claim against Beneficial regarding that settlement. Therefore, Beneficial argues the amended complaint
Fisker's lawsuit against insurance companykatiefehren
A lawsuit filed by Fisker against insurance company XL for denying its claim when 338 Karmas were lost in Sandy flooding, which had a value of $33 million.
Angela Kaaihue, Motion in Opposition to NECA's Summary Judgement- Hearing Jul...Angela Kaaihue
This document is a memorandum filed by Angela Kaaihue and Yong Fryer in opposition to a motion for summary judgment filed by Newtown Estates Community Association (NECA). It argues that NECA's motion should be denied for several reasons: (1) Petitioners' property is not part of Newtown Estates and is therefore not subject to NECA's rules; (2) there are errors in the property's title and warranty deed regarding its inclusion in Newtown Estates; and (3) Petitioners have developer rights over the property according to the master declaration. The memorandum also notes that the land court has jurisdiction over NECA's claims, as determined in a previous hearing.
This document is an opinion and order from a United States District Court case between Siltronic Corporation and various insurance companies including Employers Insurance Company of Wausau regarding insurance coverage and payment of defense costs for environmental claims arising from contamination at the Portland Harbor Superfund site. The court considers Siltronic's motion for partial summary judgment that Wausau has a continuing duty to defend Siltronic under its 1978-79 insurance policy and must reimburse unpaid defense costs. The court provides background on the insurance policies and contamination issues before analyzing the relevant policy provisions and ruling on the motions.
Bad Faith Insurance Law Overview, Oregon Alaska Idaho MontanaSeth Row
This document summarizes bad faith law in the Pacific Northwest states of Oregon, Alaska, Idaho, and Montana. It outlines the requirements to bring a bad faith claim in each state, such as needing a special relationship in Oregon or the claim not being fairly debatable in Idaho. The standard of care expected of insurers is also discussed for each state, for example, acting as an ordinarily prudent insurer would in Oregon. Potential remedies like damages, attorney fees, and estoppel are mentioned for the different states. Contact information is provided for the authors at the end.
This document is an opinion and order from a court case between Ash Grove Cement Company and several insurance companies regarding insurance coverage. It discusses that Ash Grove received a request for information from the EPA under CERCLA regarding a Superfund site, and whether this triggers the insurers' duty to defend. The court provides background on the Superfund site, the insurance policies, and communications between the parties. It will determine whether an EPA information request constitutes a "suit" that triggers the duty to defend under the terms of the insurance policies.
Beneficial Motion to Dismiss Based on SB 814Seth Row
Beneficial moves to dismiss the plaintiffs' amended complaint based on Oregon's recently enacted Senate Bill 814. SB 814 amended ORS 465.480 to eliminate contribution claims against insurers like Beneficial that entered into a good faith settlement with their insured, Zidell, regarding environmental claims related to Zidell's Moody Avenue site. The legislation applies retroactively to this case. Zidell and Beneficial negotiated and reached a settlement in good faith to resolve Zidell's claims for insurance coverage relating to the Moody Avenue site. As a result, under the new law, the court lacks jurisdiction over the plaintiffs' contribution claim against Beneficial regarding that settlement. Therefore, Beneficial argues the amended complaint
Fisker's lawsuit against insurance companykatiefehren
A lawsuit filed by Fisker against insurance company XL for denying its claim when 338 Karmas were lost in Sandy flooding, which had a value of $33 million.
Angela Kaaihue, Motion in Opposition to NECA's Summary Judgement- Hearing Jul...Angela Kaaihue
This document is a memorandum filed by Angela Kaaihue and Yong Fryer in opposition to a motion for summary judgment filed by Newtown Estates Community Association (NECA). It argues that NECA's motion should be denied for several reasons: (1) Petitioners' property is not part of Newtown Estates and is therefore not subject to NECA's rules; (2) there are errors in the property's title and warranty deed regarding its inclusion in Newtown Estates; and (3) Petitioners have developer rights over the property according to the master declaration. The memorandum also notes that the land court has jurisdiction over NECA's claims, as determined in a previous hearing.
2009 BIOL503 Class 8 Intellectual Property IV Supporting Doc: City of Hope v....Karol Pessin
This document summarizes a Supreme Court of California case between City of Hope National Medical Center and Genentech, Inc. regarding royalties from a 1976 research collaboration agreement. The jury found Genentech breached its fiduciary duty and contract, awarding $300 million in compensatory damages and $200 million in punitive damages. The Supreme Court affirms the compensatory damages but sets aside punitive damages, finding no fiduciary relationship existed. While the contract terms were ambiguous, extrinsic evidence showed the parties did not intend City of Hope's royalty rights to apply to products not using DNA synthesized by City of Hope or to settlement proceeds not involving patent infringement.
This newsletter summarizes recent reinsurance case law developments. The first case discusses an 8th Circuit ruling that an endorsement incorporating a jurisdictional clause superseded an alternative dispute resolution clause. The second case discusses a New Jersey ruling staying litigation in favor of arbitration over an alleged breach involving an offset dispute. The third case discusses an Illinois ruling dismissing an assignee's request for pre-answer security and motion to compel arbitration against a sovereign-owned reinsurer.
The petitioning creditors filed a motion requesting permission to file redacted versions of confidential pleadings and exhibits under seal in bankruptcy proceedings against Allied Systems Holdings, Inc. and Allied Systems, Ltd. The pleadings and exhibits contain confidential commercial information from credit agreements. The motion argues that public disclosure of this confidential information would violate the credit agreements.
This document is a status report from the Claims Administrator of the Deepwater Horizon Economic and Property Damages Settlement Agreement to the United States District Court for the Eastern District of Louisiana. It provides updates on the number of claims submitted and reviewed, the identity verification and review processes, exclusions reviews, accounting support reviews, and quality assurance reviews being conducted. The report aims to inform the Court on the current status of implementing the Settlement Agreement.
This appeal involves post-judgment orders from a legal malpractice case brought by Sulphur Mountain Land and Livestock Co., Malibu Broadbeach L.P., and Pacific Coast Management against Knapp, Petersen & Clarke and several individuals. The trial court granted Sulphur and Malibu's motion for attorney's fees and costs, denied the defendants' motion for fees and motion to tax costs, finding Sulphur and Malibu were the prevailing parties. The defendants appeal, arguing: 1) the trial court failed to properly determine the prevailing party under Civil Code §1717 before considering C.C.P. §998; 2) even if it had, it abused its discretion in finding Sulphur and
King county-superior-court-order-on-rha-v-city-of-seattle-22421Roger Valdez
This order denies the plaintiffs' motion for summary judgment and grants the defendant's cross-motion for summary judgment. It finds that the three Seattle ordinances establishing defenses to eviction due to financial hardship during COVID-19 do not conflict with state law and are therefore not preempted. While the ordinance provision staying late fees is preempted, the rest can be harmonized with state eviction statutes as establishing substantive defenses rather than conflicting with the statutes' procedural framework. Controlling Washington precedent has established that the state eviction laws provide only procedures, not substantive rights, so local governments can permissibly provide additional defenses.
State of wash case mandatory arbitration clause in an insurance contract wa...Umesh Heendeniya
This case involves a dispute over whether arbitration clauses in two insurance policies issued by James River Insurance Company to the Washington State Department of Transportation (WSDOT) are enforceable. The trial court denied James River's motion to compel arbitration, finding the clauses violated state statutes prohibiting agreements that deprive state courts of jurisdiction over actions against insurers. The Supreme Court of Washington affirms, finding that the statutes are intended to protect the right to bring an original action in state court and that binding arbitration deprives courts of jurisdiction to consider the substance of disputes.
Studio 417 inc. v. the cincinnati insuranceBolinLawGroup
This order denies the defendant insurance company's motion to dismiss. The plaintiffs, who are businesses that own restaurants and hair salons, filed a lawsuit against their insurance provider seeking coverage for losses they incurred when the businesses were forced to close due to the COVID-19 pandemic. The defendant argued that the insurance policies required "physical loss or damage" and that COVID-19 does not cause such physical alterations. However, the court found that the policies do not define "physical loss" and its plain meaning could include loss of use, which the plaintiffs allegedly experienced when they were prohibited from operating their businesses. Therefore, the plaintiffs adequately stated claims under the various coverage provisions of the policies, and the defendant's motion to dismiss was denied.
This document is the defendants' closing argument in response to the plaintiffs' closing argument regarding trust documents presented in a real estate dispute. It argues that the plaintiffs' claims of fraudulent conduct by the defendant are unsupported and illogical. It asserts that the trust documents in question have no relevance to the legal issues being tried, which involve the interpretation of purchase and sale agreements for two properties. The defendant argues that the plaintiffs have presented no valid legal basis to rescind the agreements and that the evidence shows the plaintiffs were unable to complete the purchase for financial reasons.
This document summarizes a court case between First American Title Insurance Company, Winnebago County Title Company, and TCF Bank regarding a mortgage on a property owned by Patricia Bartholomew. TCF Bank held the first mortgage on the property as a revolving line of credit. Winnebago acted as an agent in a second mortgage taken out by Bartholomew. Winnebago paid off the TCF Bank mortgage but TCF did not release its lien. Bartholomew then took out more funds through the revolving credit and defaulted. The court found that TCF Bank was not legally required to release the lien until the revolving credit was cancelled by Bartholomew. However
This order denies the plaintiffs' motion for a preliminary injunction on their facial constitutional challenges to Article 19 of the Revised Ordinances of Honolulu. The order finds that: (1) Article 19 is a reasonable time, place, and manner restriction that is content-neutral and narrowly tailored to serve the significant government interest of maintaining public areas; (2) Plaintiffs are not likely to succeed on their claim that Article 19 is overly broad in violation of the First Amendment; and (3) Plaintiffs have failed to establish all the required elements for a preliminary injunction, including likelihood of success on the merits of their claims. Therefore, the court denies the plaintiffs' motion for a preliminary injunction based on their facial challenges to Article 19.
Motion to amend judgment points & authorities- signedjamesmaredmond
This document is a motion to amend a judgment to add additional judgment debtors. It describes an underlying malpractice judgment against Stephen Gaggero for over $2 million. It details Gaggero's estate plan from 1997 whereby he transferred over $35 million in personal assets to various trusts, corporations, limited partnerships and limited liability companies. The motion argues that these entities should be added as judgment debtors as they are alter egos of Gaggero. It provides background on the entities and trusts, describes Gaggero's continued control over the assets, and argues the separate existence of the entities should be disregarded as they were created to shield Gaggero's assets from creditors like the judgment creditors in this case. The
091007 Complaint D E 2 10 07 09 Draft Finaljsanchelima
This document is an amended complaint filed in bankruptcy court by Maison Grande Condominium Association against Dorten Inc. and Robert L. Siegel as trustee. The complaint seeks to avoid any security interests or liens claimed by the defendants in the association's assets. It also seeks a determination that a purported 99-year lease and any security interests or liens granted under the lease are invalid. The association states that the lease and any security interests were not properly perfected and seeks to reject the lease in bankruptcy.
Mock answer and counterclaim of Ms. Geiger who allegedly rear-ended the plaintiff on I-540 by following too closely but alleges that the collision was the result of the plaintiff's proximate negligence.
This document discusses various issues relating to statutes of limitations (SOLs) and notice provisions in insurance and reinsurance contracts. It provides an overview of SOL rules and accrual dates for direct insurance policies and reinsurance contracts. It also discusses how SOL defenses are addressed in reinsurance arbitrations and ways SOLs may be avoided, such as through tolling agreements. The document further examines issues around exhaustion of underlying limits for excess policies and notice requirements in reinsurance contracts.
Express working capital llc v Starving Students IncM P
Synopsis
Background: Buyer of corporation's future credit card receivables brought action against seller-corporation and its owner, alleging breach of contract, promissory estoppel, fraud, and fraudulent inducement. Defendants asserted usury defense and counterclaim. Parties cross-moved for summary judgment.
SC Judgement - Appointment Of Third ArbitratorFlame Of Truth
The SC judgement by Justice S S Nijjar in the matter between Reliance Industries Ltd and others versus Union of India, arbitration petition filed by Reliance for appointment of the third and the presiding arbitrator.
D'Agostino v Federal Ins Co , 969 F. Supp. 2d 116 (D. Mass. 2013)Richard Goren
1) The parties engaged in settlement negotiations but did not reach an enforceable agreement because while D'Agostino offered $1.15 million for a release, Federal responded with a release containing additional material terms like confidentiality requirements, which were not accepted.
2) The court denied Federal's motions to enforce the alleged settlement agreement and for protective orders, finding no agreement was formed.
3) The court also denied requests for sanctions from both parties, finding neither party's actions warranted sanctions.
BANK OF AMERICA FORECLOSURE, ANSWER, AFFIRMATIVE DEFENSES, COUNTERCLAIMlauren tratar
This document is an amended answer, affirmative defenses, and counterclaim filed by homeowners (Owners) in response to a foreclosure complaint brought by BAC Home Loans Servicing, LP (BAC). The Owners admit some basic facts about the mortgage but deny that BAC has the right to foreclose. They assert affirmative defenses that BAC lacks standing because the note was securitized and sold to investors prior to the alleged default. The Owners claim this means the real parties in interest are the investors, not BAC, and BAC cannot prove it has authority to foreclose. Exhibits are provided purportedly showing the loan was part of a mortgage backed securities trust.
This case involves a dispute over insurance proceeds from an automobile accident settlement. Plaintiff Glenn Cody received $25,000 from the insurer of the at-fault driver, but had over $29,500 in medical expenses. Defendant MILA paid $17,632.18 of Plaintiff's medical expenses and asserts an equitable lien over the settlement funds. Plaintiff disputes the validity of MILA's lien. Plaintiff was also insured by Defendant Farm Bureau, which provided $25,000 in UM coverage, but disputes its applicability. The Court must determine the validity of MILA's lien to then address potential liability of Farm Bureau.
This document is a report and recommendation from a magistrate judge regarding a motion to dismiss for lack of personal jurisdiction filed by the defendant, Info Directions, Inc. The plaintiff, Transverse LLC, alleges that Info Directions interfered with its contract and misappropriated its trade secrets related to billing software. The magistrate judge provides background on the parties and claims, summarizes the legal standards for personal jurisdiction, and will make a recommendation to the district court judge on the motion to dismiss.
2009 BIOL503 Class 8 Intellectual Property IV Supporting Doc: City of Hope v....Karol Pessin
This document summarizes a Supreme Court of California case between City of Hope National Medical Center and Genentech, Inc. regarding royalties from a 1976 research collaboration agreement. The jury found Genentech breached its fiduciary duty and contract, awarding $300 million in compensatory damages and $200 million in punitive damages. The Supreme Court affirms the compensatory damages but sets aside punitive damages, finding no fiduciary relationship existed. While the contract terms were ambiguous, extrinsic evidence showed the parties did not intend City of Hope's royalty rights to apply to products not using DNA synthesized by City of Hope or to settlement proceeds not involving patent infringement.
This newsletter summarizes recent reinsurance case law developments. The first case discusses an 8th Circuit ruling that an endorsement incorporating a jurisdictional clause superseded an alternative dispute resolution clause. The second case discusses a New Jersey ruling staying litigation in favor of arbitration over an alleged breach involving an offset dispute. The third case discusses an Illinois ruling dismissing an assignee's request for pre-answer security and motion to compel arbitration against a sovereign-owned reinsurer.
The petitioning creditors filed a motion requesting permission to file redacted versions of confidential pleadings and exhibits under seal in bankruptcy proceedings against Allied Systems Holdings, Inc. and Allied Systems, Ltd. The pleadings and exhibits contain confidential commercial information from credit agreements. The motion argues that public disclosure of this confidential information would violate the credit agreements.
This document is a status report from the Claims Administrator of the Deepwater Horizon Economic and Property Damages Settlement Agreement to the United States District Court for the Eastern District of Louisiana. It provides updates on the number of claims submitted and reviewed, the identity verification and review processes, exclusions reviews, accounting support reviews, and quality assurance reviews being conducted. The report aims to inform the Court on the current status of implementing the Settlement Agreement.
This appeal involves post-judgment orders from a legal malpractice case brought by Sulphur Mountain Land and Livestock Co., Malibu Broadbeach L.P., and Pacific Coast Management against Knapp, Petersen & Clarke and several individuals. The trial court granted Sulphur and Malibu's motion for attorney's fees and costs, denied the defendants' motion for fees and motion to tax costs, finding Sulphur and Malibu were the prevailing parties. The defendants appeal, arguing: 1) the trial court failed to properly determine the prevailing party under Civil Code §1717 before considering C.C.P. §998; 2) even if it had, it abused its discretion in finding Sulphur and
King county-superior-court-order-on-rha-v-city-of-seattle-22421Roger Valdez
This order denies the plaintiffs' motion for summary judgment and grants the defendant's cross-motion for summary judgment. It finds that the three Seattle ordinances establishing defenses to eviction due to financial hardship during COVID-19 do not conflict with state law and are therefore not preempted. While the ordinance provision staying late fees is preempted, the rest can be harmonized with state eviction statutes as establishing substantive defenses rather than conflicting with the statutes' procedural framework. Controlling Washington precedent has established that the state eviction laws provide only procedures, not substantive rights, so local governments can permissibly provide additional defenses.
State of wash case mandatory arbitration clause in an insurance contract wa...Umesh Heendeniya
This case involves a dispute over whether arbitration clauses in two insurance policies issued by James River Insurance Company to the Washington State Department of Transportation (WSDOT) are enforceable. The trial court denied James River's motion to compel arbitration, finding the clauses violated state statutes prohibiting agreements that deprive state courts of jurisdiction over actions against insurers. The Supreme Court of Washington affirms, finding that the statutes are intended to protect the right to bring an original action in state court and that binding arbitration deprives courts of jurisdiction to consider the substance of disputes.
Studio 417 inc. v. the cincinnati insuranceBolinLawGroup
This order denies the defendant insurance company's motion to dismiss. The plaintiffs, who are businesses that own restaurants and hair salons, filed a lawsuit against their insurance provider seeking coverage for losses they incurred when the businesses were forced to close due to the COVID-19 pandemic. The defendant argued that the insurance policies required "physical loss or damage" and that COVID-19 does not cause such physical alterations. However, the court found that the policies do not define "physical loss" and its plain meaning could include loss of use, which the plaintiffs allegedly experienced when they were prohibited from operating their businesses. Therefore, the plaintiffs adequately stated claims under the various coverage provisions of the policies, and the defendant's motion to dismiss was denied.
This document is the defendants' closing argument in response to the plaintiffs' closing argument regarding trust documents presented in a real estate dispute. It argues that the plaintiffs' claims of fraudulent conduct by the defendant are unsupported and illogical. It asserts that the trust documents in question have no relevance to the legal issues being tried, which involve the interpretation of purchase and sale agreements for two properties. The defendant argues that the plaintiffs have presented no valid legal basis to rescind the agreements and that the evidence shows the plaintiffs were unable to complete the purchase for financial reasons.
This document summarizes a court case between First American Title Insurance Company, Winnebago County Title Company, and TCF Bank regarding a mortgage on a property owned by Patricia Bartholomew. TCF Bank held the first mortgage on the property as a revolving line of credit. Winnebago acted as an agent in a second mortgage taken out by Bartholomew. Winnebago paid off the TCF Bank mortgage but TCF did not release its lien. Bartholomew then took out more funds through the revolving credit and defaulted. The court found that TCF Bank was not legally required to release the lien until the revolving credit was cancelled by Bartholomew. However
This order denies the plaintiffs' motion for a preliminary injunction on their facial constitutional challenges to Article 19 of the Revised Ordinances of Honolulu. The order finds that: (1) Article 19 is a reasonable time, place, and manner restriction that is content-neutral and narrowly tailored to serve the significant government interest of maintaining public areas; (2) Plaintiffs are not likely to succeed on their claim that Article 19 is overly broad in violation of the First Amendment; and (3) Plaintiffs have failed to establish all the required elements for a preliminary injunction, including likelihood of success on the merits of their claims. Therefore, the court denies the plaintiffs' motion for a preliminary injunction based on their facial challenges to Article 19.
Motion to amend judgment points & authorities- signedjamesmaredmond
This document is a motion to amend a judgment to add additional judgment debtors. It describes an underlying malpractice judgment against Stephen Gaggero for over $2 million. It details Gaggero's estate plan from 1997 whereby he transferred over $35 million in personal assets to various trusts, corporations, limited partnerships and limited liability companies. The motion argues that these entities should be added as judgment debtors as they are alter egos of Gaggero. It provides background on the entities and trusts, describes Gaggero's continued control over the assets, and argues the separate existence of the entities should be disregarded as they were created to shield Gaggero's assets from creditors like the judgment creditors in this case. The
091007 Complaint D E 2 10 07 09 Draft Finaljsanchelima
This document is an amended complaint filed in bankruptcy court by Maison Grande Condominium Association against Dorten Inc. and Robert L. Siegel as trustee. The complaint seeks to avoid any security interests or liens claimed by the defendants in the association's assets. It also seeks a determination that a purported 99-year lease and any security interests or liens granted under the lease are invalid. The association states that the lease and any security interests were not properly perfected and seeks to reject the lease in bankruptcy.
Mock answer and counterclaim of Ms. Geiger who allegedly rear-ended the plaintiff on I-540 by following too closely but alleges that the collision was the result of the plaintiff's proximate negligence.
This document discusses various issues relating to statutes of limitations (SOLs) and notice provisions in insurance and reinsurance contracts. It provides an overview of SOL rules and accrual dates for direct insurance policies and reinsurance contracts. It also discusses how SOL defenses are addressed in reinsurance arbitrations and ways SOLs may be avoided, such as through tolling agreements. The document further examines issues around exhaustion of underlying limits for excess policies and notice requirements in reinsurance contracts.
Express working capital llc v Starving Students IncM P
Synopsis
Background: Buyer of corporation's future credit card receivables brought action against seller-corporation and its owner, alleging breach of contract, promissory estoppel, fraud, and fraudulent inducement. Defendants asserted usury defense and counterclaim. Parties cross-moved for summary judgment.
SC Judgement - Appointment Of Third ArbitratorFlame Of Truth
The SC judgement by Justice S S Nijjar in the matter between Reliance Industries Ltd and others versus Union of India, arbitration petition filed by Reliance for appointment of the third and the presiding arbitrator.
D'Agostino v Federal Ins Co , 969 F. Supp. 2d 116 (D. Mass. 2013)Richard Goren
1) The parties engaged in settlement negotiations but did not reach an enforceable agreement because while D'Agostino offered $1.15 million for a release, Federal responded with a release containing additional material terms like confidentiality requirements, which were not accepted.
2) The court denied Federal's motions to enforce the alleged settlement agreement and for protective orders, finding no agreement was formed.
3) The court also denied requests for sanctions from both parties, finding neither party's actions warranted sanctions.
BANK OF AMERICA FORECLOSURE, ANSWER, AFFIRMATIVE DEFENSES, COUNTERCLAIMlauren tratar
This document is an amended answer, affirmative defenses, and counterclaim filed by homeowners (Owners) in response to a foreclosure complaint brought by BAC Home Loans Servicing, LP (BAC). The Owners admit some basic facts about the mortgage but deny that BAC has the right to foreclose. They assert affirmative defenses that BAC lacks standing because the note was securitized and sold to investors prior to the alleged default. The Owners claim this means the real parties in interest are the investors, not BAC, and BAC cannot prove it has authority to foreclose. Exhibits are provided purportedly showing the loan was part of a mortgage backed securities trust.
This case involves a dispute over insurance proceeds from an automobile accident settlement. Plaintiff Glenn Cody received $25,000 from the insurer of the at-fault driver, but had over $29,500 in medical expenses. Defendant MILA paid $17,632.18 of Plaintiff's medical expenses and asserts an equitable lien over the settlement funds. Plaintiff disputes the validity of MILA's lien. Plaintiff was also insured by Defendant Farm Bureau, which provided $25,000 in UM coverage, but disputes its applicability. The Court must determine the validity of MILA's lien to then address potential liability of Farm Bureau.
This document is a report and recommendation from a magistrate judge regarding a motion to dismiss for lack of personal jurisdiction filed by the defendant, Info Directions, Inc. The plaintiff, Transverse LLC, alleges that Info Directions interfered with its contract and misappropriated its trade secrets related to billing software. The magistrate judge provides background on the parties and claims, summarizes the legal standards for personal jurisdiction, and will make a recommendation to the district court judge on the motion to dismiss.
This document is a letter from Plaintiffs' counsel opposing a motion to dismiss from Defendant Unigestion Holding. The letter argues that the complaint provides sufficient details about Unigestion's involvement in an alleged conspiracy to illegally impose fees on phone calls and money transfers to Haiti in violation of antitrust laws. The letter cites evidence from a New York Times article and videos showing an agreement was made between Unigestion and other defendants to fix prices. The letter also argues the complaint meets pleading standards and that dismissal would be improper at this stage.
This document is a memorandum in support of a motion in limine regarding the effect of Senate Bill 814 on the parties' agreement concerning defense counsel. It argues that SB 814's independent counsel provisions do not apply in this case for two reasons: 1) The insurance policies give Continental the right to control the defense, triggering the savings clause in SB 814, and 2) The parties previously agreed that Bingham would serve as defense counsel within the traditional tripartite relationship, not as independent counsel, so applying SB 814 would contradict this existing agreement. The memorandum also contends that even if SB 814 did apply, it does not allow Schnitzer to select counsel or pay out-of-forum rates that exceed what is
Federal Judge Rules Against Small Haulers in Waste Management DisputeThis Is Reno
Reno's small waste haulers were dealt a blow this week in their ongoing dispute against the City of Reno and Waste Management. Green Solutions Recycling filed suit against the city and Reno Disposal (Waste Management) over the city's enforcement of its franchise agreement with Waste Management.
This document is an objection filed by the United States Trustee to motions filed by Petitioning Creditors and Alleged Debtors to seal certain documents filed with the court. The U.S. Trustee does not oppose sealing documents pending a ruling on whether the bankruptcy cases will proceed, but argues that any sealing should end if the court finds cause to open bankruptcy cases, as the information would then become public. The U.S. Trustee asserts that bankruptcy law favors public disclosure of information relevant to creditors and parties in interest.
This letter requests a pre-motion conference regarding an anticipated motion to dismiss an amended complaint filed against Digicel Haiti. It summarizes that the amended complaint should be dismissed for failing to meet pleading standards under FRCP 8(a), 9(b), and 12(b)(6), and based on the act-of-state doctrine and forum non conveniens. Specifically, the letter argues that the amended complaint does not provide a short, plain statement of claims, engages in impermissible group pleading, lacks specific allegations of fraud, and requires invalidating acts of the Haitian government.
Doc1037 robert oneil paul ballard_todd hickman_seeking approval_settlement & ...malp2009
This document is a Trustee's Motion to Approve Compromise and Settlement with Defendants Robert O'Neal, Paul Ballard and Todd Hickman in an Adversary proceeding. The Trustee is seeking the court's approval of a settlement agreement between the Trustee and the Defendants that would allow portions of the Defendants' claims against the Debtor's estate and resolve all claims between the parties. Key terms of the settlement include allowing 75% of O'Neal's claim, 60% of Ballard's claim, and 60% of Hickman's claim. The Trustee believes the settlement is in the best interest of the estate to avoid costly and uncertain litigation.
2 of 2 DOCUMENTSJ. TAIKWOK YUNG WEBADVISO, Plaintiff-Appel.docxeugeniadean34240
2 of 2 DOCUMENTS
J. TAIKWOK YUNG WEBADVISO, Plaintiff-Appellant, -v.- BANK OF AMERICA
CORP., MERRILL LYNCH, Defendants-Appellees.
Nos. 10-292-cv (L), 10-1307-cv (Con)
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
448 Fed. Appx. 95; 2011 U.S. App. LEXIS 21648
October 26, 2011, Decided
NOTICE: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE
CITATION TO UNPUBLISHED OPINIONS.
SUBSEQUENT HISTORY: Motion denied by Yung v. Bank of Am. Corp., 132 S. Ct. 1878, 182 L. Ed. 2d 641, 2012
U.S. LEXIS 2657 (U.S., 2012)
Related proceeding at Web-Adviso v. Trump, 2013 U.S. Dist. LEXIS 28174 (E.D.N.Y., Feb. 28, 2013)
PRIOR HISTORY: [**1]
Appeal from a judgment of the United States District Court for the Southern District of New York (Denny Chin,
Judge).
Webadviso v. Bank of Am. Corp., 2010 U.S. Dist. LEXIS 13206 (S.D.N.Y., Feb. 16, 2010)
CASE SUMMARY:
PROCEDURAL POSTURE: Plaintiff internet businessman appealed from the U.S. District Court for the Southern
District of New York an order granting summary judgment to defendant bank and investment company on plaintiff's
petition for a declaratory judgment and on defendants' counter-claim for violation of the Anticybersquatting Consumer
Protection Act (ACPA), 15 U.S.C.S. § 1125(d).
OVERVIEW: The district court granted summary judgment sua sponte. After entering an order to show cause, the
district court granted plaintiff a full and fair opportunity to be heard. By plaintiff's own admission, he sought to acquire
high value domain names and park them with domain parking service providers to generate pay-per-click revenue. By
doing so, plaintiff ran afoul of the ACPA, for whether or not he had any intention of selling the domain names to
appellees, he clearly had the intention to profit from the goodwill associated with the trademarks that comprised the
domain names. Plaintiff's own self-description made clear that he registered the domain names in bad faith and thereby
violated the ACPA. Thus, no genuine issue of material fact prevented the district court from granting summary
judgment to defendants on their ACPA counter-claim.
OUTCOME: The court affirmed the judgment of the district court.
CORE TERMS: domain, registrant's, trademark, summary judgment, bad faith, site, registration, sua sponte,
distinctive, registered, consumers, material fact, fair use, bona fide, accessible, goodwill, tarnish, genuine issue, fair
opportunity, prior conduct, safe harbor, cybersquatting, counter-claim, pay-per-click, confusingly, sponsorship,
affiliation, endorsement, disparage, offering
Page 1
LexisNexis(R) Headnotes
Civil Procedure > Summary Judgment > Appellate Review > Standards of Review
[HN1] An appellate court reviews a district court's decision to grant summary judgment sua sponte to the movants de
novo.
Civil Procedure > Summary Judgment > Standards > Appropriateness
Civil Procedure > Summary Judgment > Standards > Genuine Disputes
Civil Procedure > Summary Judgment > Sta.
The judge dismissed the appellants' application to set aside a default judgment entered against them for failing to file their defence on time. The judge found that the appellants did not provide a good explanation for the delay as required. The appellants appealed, arguing that: (1) the judge applied the wrong legal test in assessing the reasons for delay; (2) the evidence disclosed a good reason for the delay; and (3) the judge failed to properly consider their extension of time application. The Court of Appeal dismissed the appeal, finding that the judge applied the correct legal test and his decision was unimpeachable.
This document is a bench ruling from a bankruptcy judge on a motion to compel arbitration related to a debtor's cash collateral motion. The judge analyzes applicable case law and determines that:
1) Whether a debtor has authority to use cash collateral is fundamentally a bankruptcy issue, not a contractual dispute.
2) The parties did not agree to arbitrate issues relating to a debtor's rights under the Bankruptcy Code, as those rights were created by Congress and differ from pre-bankruptcy contractual rights.
3) Therefore, the motion to compel arbitration of the debtor's cash collateral motion is denied, as use of cash collateral is a core bankruptcy issue not subject to the arbitration agreement.
The document summarizes two cases where courts recognized a promissory estoppel claim against an employer - Roberts v. Geosource Drilling Services, Inc. and Hernandez v. UPS Supply Chain Solutions, Inc. In Roberts, the employee quit his job and prepared to work for Geosource in reliance on oral promises and a written contract, but Geosource rescinded the job offer. In Hernandez, the employee had actually moved from Illinois to Texas based on a job promise. Both courts found promissory estoppel claims based on the employees' detrimental reliance on the employers' promises.
Fall 2010 open memo assignment no doubt v. activision right of publicity cali...Lyn Goering
This document is a court order granting the plaintiff's application to remand a case back to state court from federal court. The plaintiff had filed a complaint against the defendant in state court for claims related to the use of the plaintiff's likeness in a video game. The defendant removed the case to federal court, arguing the claims were preempted by federal copyright law. The court analyzed the relevant legal standards for removal and copyright preemption. Applying a two-part test, the court determined the plaintiff's claims were not preempted as they involved misappropriation of the plaintiff's name and likeness beyond what was agreed to, rather than contesting the defendant's copyright. The court therefore granted the application to remand the case back to
Pollard PLLC represents 7 real estate brokers and their new company KD Premier Realty against their former employer, Properties of the Villages. In the attached document, the Magistrate Judge has recommended that Plaintiff's Motion for Preliminary Injunction be denied. The case is pending in the United States District Court for the Middle District of Florida. The Firm can be reached at 954-332-2380.
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336 N.W.2d 134, *; 1983 N.D. LEXIS 302, **;
36 U.C.C. Rep. Serv. (Callaghan) 649
The General Fixture and Supply, Inc. (hereinafter General Fixture), appealed from a district court decision in a declaratory judgment 1 action in which the district court determined that First Bank of North Dakota (NA) Minot (hereinafter First Bank) had a purchase money security interest in equipment superior to General Fixture's purchase money security interest in the same equipment and ordered $30,000.00 in proceeds from the sale of that equipment held by Thet Mah and Associates, Inc. (hereinafter Thet Mah), to be paid to First Bank.
[**2] First Bank, through its senior vice-president, Robert Turner, sent a letter dated 14 January 1980 to Dan Schmaltz, president of Dakota Square Restaurants, Inc. (hereinafter Dakota Square), putting into writing a loan request (offer of loan commitment) by Dakota Square for a loan to equip a restaurant and lounge in the Dakota Square Mall at Minot, North Dakota. The letter referred to a total projected capital cost of $310,000.00, with $120,000.00 of that total for equipment, furniture, small wares, uniforms, and supplies. Dakota Square, through Dan Schmaltz, accepted the loan commitment on 22 January 1980.
On 7 March 1980 First Bank advanced the sum of $25,000.00 to Dakota Square pursuant to the commitment letter, and Dakota Square executed a security agreement in favor of First Bank covering all of Dakota Square's equipment, supplies, furniture, and fixtures described in an attached list. A financing statement was filed on 12 March 1980 with the Ward County Register of Deeds and the Secretary of State. The financing statement provided that it covered the following collateral:
"All inventory wherever located, now existing or hereafter acquired, and all accounts and contract [**3] rights now existing or hereafter acquired. All equipment, supplies, furniture and fixtures now owned or hereafter acquired."
On 28 May 1980 Dakota Square entered into a contract for sale and security agreement with General Fixture for the purchase by Dakota Square of certain restaurant equipment for a total cost of $87,292.25. General Fixture filed a financing statement covering the equipment on 23 June 1980.
General Fixture, through its credit manager Jim Butts, sent First Bank a request, dated 5 June 1980, to fill out a "form letter for commitment of funds" for Dakota Square. First Bank, through Turner, replied on 12 June 1980 that it did not have information from Dakota Square regarding the dollar amount of the purchases from General Fixture. The reply also stated that First Bank had consented to a dollar-amount [*137] loan for all phases of the restaurant -- including equipment.
On 17 July 1980 General Fixture delivered the equipment to Dakota Square, and Schmaltz wrote First Bank a letter authorizing First Bank to specifically hold $45,000.00 in funds committed to Dakota Square for direct payment to General Fixture after sa.
SDFL - Order Dismissing Various Claims - Jurisdiction - Trade SecretsPollard PLLC
The Plaintiff filed a 20 count lawsuit alleging, among other counts, theft of trade secrets, unjust enrichment, breach of fiduciary duty, trademark infringement, violations of the Computer Fraud Abuse Act and more.
This is the classic shock and awe, everything and the kitchen sink approach to litigation.
In this instance, that approach backfired spectacularly. The Court dismissed 17 of the counts on jurisdictional grounds -- holding they cannot be refiled in federal court but must be pursued, if at all, in state court.
The court also dismissed one count with prejudice. Denied the motion to dismiss with respect to one count. And granted leave to amend on one count--- but warned plaintiff and its counsel to mind Rule 11 if they decide to amend.
Think twice before you file a 20 count complaint in federal court where you are literally throwing everything at the wall and hoping something sticks.
First Natl Acceptance Co. v. City of Utica_12-cv-01622-0[1]James Evans
This case concerns the demolition of an apartment building owned by John Gosnell in Utica, New York. First National Acceptance Company held a mortgage on the property. The City of Utica inspected the building and issued notices of violations to Gosnell, but did not notify First National or follow certain statutory procedures. First National claims the demolition violated its due process rights. The court will determine if issues of material fact exist regarding whether Utica followed applicable laws in declaring the building unsafe and ordering its demolition.
Similar to National union v. redbox order on msj august 7 2014 wd wa (20)
This document establishes rules for interpreting business property insurance policies in Oregon relating to business interruption claims from events like pandemics. It prohibits certain insurer conduct like failing to timely investigate or pay claims. Insureds can sue for actual damages if insurers violate these rules. The act takes effect immediately.
PPT for ABA SAC 2018 of ICLC Tucson Conference 2018Seth Row
The document discusses the benefits of exercise for mental health. Regular physical activity can help reduce anxiety and depression and improve mood and cognitive functioning. Exercise causes chemical changes in the brain that may help protect against mental illness and improve symptoms.
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Judge Mosman avoided directly ruling on the application of SB 814 to the defense costs being sought by Schnitzer, instead holding that Schnitzer was judicially estopped from arguing that its defense counsel was "independent counsel" subject to SB 814.
Judge Stewart - Siltronic Order on Allocation of Environmental Response Costs...Seth Row
Judge Stewart's order goes behind the labels applied to various environmental response costs, to the purpose for which the work was done, to determine for insurance purposes whether a cost was "defense" or "indemnity."
1) The attorney, Seth Row, wrote a letter to Senator Shields to express concerns about bill HB 4051, which would allow insurers to provide policy documents via website rather than paper copies. 2) Row believes the bill lacks important protections for policyholders by not ensuring they consent to electronic delivery or have a choice in delivery method. 3) The bill's 10-year retention period for policy documents is also insufficient, as insurance claims often arise decades after a policy is issued, placing policyholders at a disadvantage in "lost policy" disputes.
The Ninth Circuit Court of Appeals ruled that a letter from the EPA under section 104(e) of CERCLA, requesting information from a landowner at a Superfund site, constitutes a "suit" and therefore triggers an insurer's duty to defend. This decision, along with previous trial court rulings in Oregon, establishes that insurers must defend policyholders who receive such information request letters. The court's interpretation of Oregon's environmental insurance claims statute, the OECAA, broadened the definition of "suit" and rejected arguments that the statute impaired contracts. This ruling may impact many involved at the Portland Harbor Superfund Site and other contaminated sites in Oregon.
Multi care health system v. lexington ins. co.Seth Row
This document is a memorandum from a United States Court of Appeals summarizing a case between Multicare Health System and Lexington Insurance Company. The court dismissed Multicare's claims against Lexington with prejudice, finding that Lexington did not have a duty to disclose the self-insured retention amount on the certificate of insurance provided to Multicare. The certificate stated the insurance policy limits but not the retention amount. The court determined that Lexington and USI did not make any affirmative misrepresentations, and they did not have a fiduciary or other special relationship that would create a duty to disclose the retention amount to Multicare. Therefore, Multicare failed to state a claim for misrepresentation or other causes of action.
Anderson Bros v. Travelers 9th Cir Decision August 30 2013Seth Row
This document summarizes an appeals court case regarding whether an insurer had a duty to defend its insured. The insured received two letters from the EPA identifying it as potentially responsible for environmental contamination at a Superfund site. The insurer refused to defend, arguing the letters were not "suits." The court affirmed the lower court's ruling that the letters triggered the duty to defend under the policy. Both letters alleged facts that could establish the insured's liability under CERCLA and Oregon law considers such letters a "suit" in the context of comprehensive general liability policies.
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This document is a court opinion and order regarding various motions for summary judgment in an insurance coverage dispute. The judge adopts the findings and recommendation of the magistrate judge, who recommended granting in part and denying in part several motions for summary judgment. Specifically, the judge agrees that Glacier failed to properly assert a claim for bad faith breach of contract. The judge also finds that Glacier breached its duty to cooperate under the insurance policies by confessing judgment in a related case without notice to the insurers.
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This document proposes amendments to A-Engrossed Senate Bill 414. The amendments modify sections of ORS 731.256 and ORS 746.230 related to unfair claim settlement practices. Key changes include prohibiting insurers from committing unfair claim settlement practices, allowing private actions for violations, and setting standards for prompt claims investigation and settlement when liability is clear. The amendments would go into effect on January 1, 2014.
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IHL provisions call for requisite study to assess their capacity to deal with emerging means and methods of warfare.
Member states of the UN should promote negotiations on a new international treaty to ban and regulate lethal automatic weapon systems together with use of artificial intelligence in armed conflicts.
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Anti-Money Laundering (AML): What It Is, Its History, and How It Works
What Is Anti-Money Laundering (AML)?
Anti-money laundering is an international web of laws, regulations, and procedures aimed at uncovering money that has been disguised as legitimate income. For centuries, governments and law enforcement agencies have tried to fight crime by following the money. In modern times, that comes down to anti-money laundering (AML) laws and activities.
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TEXTO: JEREMIAS 38:19-20
INTRODUCCION
En el texto que hemos leído vemos el momento de angustia que el rey Sedequias tenía cuando Jerusalén estaba rodeada por el ejército babilonio.
En ese momento de angustia la respuesta del profeta Jeremías fue: oye la voz de Jehová y te ira bien y vivirás.
Quizás este día nos sentimos preocupados por las situaciones que estamos enfrentando o nos sentimos llenos de incertidumbre por aquellos proyectos de nuestra vida que estamos por iniciar, por esas metas que nos hemos propuesto alcanzar este año.
Que nos dice la voz de Dios este dia a cada uno de nosotros: FILIPENSES 4:13 “Todo lo puedo en Cristo que me fortalece”
Tenemos que escuchar la voz de nuestro Dios por sobre cualquier voz en nuestra vida,
I)DEBEMOS ESCUCHAR LA VOZ DE DIOS POR SOBRE LA VOZ DE LA EXPERIENCIA (LUCAS 5:4-6)
La voz de la experiencia es una autoridad, eso es real, pues la experiencia es el conocimiento aprendido por haber realizado algo, por haberlo vivido o sufrido, la experiencia es importante, pero por sobre la autoridad de la experiencia esta la voz de Dios.
La voz de la experiencia decía que si no habían pescado nada toda la noche era inútil tirar la red en la mañana, pero Pedro confi
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This Act shall be known as the "Safe Spaces Act".
National union v. redbox order on msj august 7 2014 wd wa
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ORDER
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THE HONORABLE JOHN C. COUGHENOUR
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA,
Plaintiff,
v.
COINSTAR, INC., et al.,
Defendants.
CASE NO. C13-1014-JCC
ORDER
This matter comes before the Court on Plaintiff‘s motion for summary judgment. (Dkt.
No. 37.) Having thoroughly considered the parties‘ briefing and the relevant record, the Court
finds oral argument unnecessary and hereby GRANTS IN PART and DENIES IN PART the
motion for the reasons explained herein.
I. BACKGROUND
This is a declaratory judgment action in which Plaintiff National Union Fire Insurance
Company of Pittsburgh, PA (―National Union‖) originally sought a declaration that it had no
duty to defend or indemnify Defendant Redbox Automated Retail, LLC (―Redbox‖) for the class
action lawsuit captioned Sterk v. Redbox Automated Retail, LLC, Case No. C11-1729 (N.D. Ill.
2011). Defendants asserted several counterclaims against National Union, seeking a declaration
that National Union had a duty to defend or indemnify Redbox in several additional lawsuits,
captioned Cain v. Redbox Automated Retail, LLC, Case No. C12-15014 (E.D. Mich. 2012),
Case 2:13-cv-01014-JCC Document 55 Filed 08/07/14 Page 1 of 14
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ORDER
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Mehrens v. Redbox Automated Retail, LLC, Case No. C11-2936 (C.D. Cal. 2011),1
and Holt v.
Redbox Automated Retail, LLC, Case No. C11-3046 (S.D. Cal. 2011).2
(Dkt. No. 15.)
Redbox is a wholly-owned subsidiary of Defendant Coinstar, Inc.3
(―Coinstar‖), which is
listed as the insured in multiple Commercial General Liability Insurance Policies issued by
National Union. Redbox operates self-service kiosks from which customers can rent movies on
DVDs and Blu-ray discs. Redbox tendered claims to National Union for each of the underlying
lawsuits. National Union agreed to defend them subject to a reservation of rights. However,
Redbox argues that National Union has not been involved in good faith efforts to defend the
lawsuits under its reservations of rights, and that it wrongfully decided to limit the amount it
would spend on attorneys working to defend the lawsuits.
On February 28, 2014, the Court granted partial summary judgment to National Union on
National Union‘s original claim, relating to whether National Union had a duty to defend
Redbox in the Sterk lawsuit. The remaining issues include whether National Union is obligated
to defend Redbox in the Cain and Mehrens suits, and whether National Union improperly limited
the amount it would pay the attorneys defending Redbox in any of the underlying suits.
1. The Policies
National Union issued two Commercial General Liability Insurance policies to Coinstar,
Inc., which owns Redbox. Policy No. 457-30-37 was in effect from September 1, 2009 to
1
The Ninth Circuit affirmed the dismissal of the Mehrens lawsuit on June 6, 2014. See
Sinibaldi v. Redbox Automated Retail, LLC, Case No. C12-55234, 2014 WL 2535471 (9th Cir.
2014). Moreover, it does not appear that Plaintiffs have filed a petition for a rehearing en banc,
and the deadline for such a petition has expired. Nonetheless, the Court will resolve issues
related to coverage in Mehrens, in case some eventuality makes it necessary for Redbox to incur
further expenses in defending the case.
2
Holt has since been dismissed, and the only remaining issue related to that case is
whether National Union has paid the amount it was required to pay to defend the suit under its
reservation of rights.
3
Coinstar is now known as Outerwall, Inc. The Court refers to ―Coinstar‖ in this order
based on the parties‘ briefing and the fact that Coinstar is listed in the relevant insurance policies.
Case 2:13-cv-01014-JCC Document 55 Filed 08/07/14 Page 2 of 14
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ORDER
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September 1, 2010. (Dkt. No. 20, Ex. B.) Policy No. 457-32-92 was in effect from September 1,
2010 to September 1, 2011. (Dkt. No. 20, Ex. C.) Both policies provide coverage for ―personal
injury and advertising injury‖ liability under the Coverage B Agreements. (Dkt. No. 20, Ex. B at
NU 028; Ex. C at NU 104.) As relevant to the instant dispute, the policies provide the following
definition:
14. ―Personal injury and advertising injury‖ means injury, including
consequential ―bodily injury‖, humiliation, mental anguish or shock,
arising out of one or more of the following offenses:
[. . .]
e. Oral or written publication, in any manner, of material that violates
a person‘s right of privacy.
(Dkt. No. 20, Ex. B. at NU 036; Ex. C at NU 112.) The policies also contain numerous
exclusions applicable to Coverage B. Specifically relevant is Exclusion (p), which provides as
follows:
Exclusion – Violation of Statutes in Connection with Sending, Transmitting,
or Communicating Any Material Or Information
This insurance does not apply to any loss, injury, damage, claim, suit, cost or
expense arising out of or resulting from, caused directly or indirectly, in whole or
in part by, any act that violates any statute, ordinance or regulation of any federal,
state or local government, including any amendment of or addition to such laws,
that addresses or applies to the sending, transmitting or communicating of any
material or information, by any means whatsoever.
(Dkt. No. 20, Ex. B. at NU 084; Ex. C at NU 160.)
The Court found that, in Sterk, the plaintiffs‘ claim that Redbox violated the Video
Protection Privacy Act (―VPPA‖) by disclosing personally identifiable information about its
customers, see Lane v. Facebook, Inc., 696 F.3d 811, 822 (9th Cir. 2012), was one that arose out
of an act that violates a statute addressing the sending, transmitting or communicating of any
material or information. The Court found that National Union was not obligated to defend
Redbox in that suit. (See Dkt. No. 25.)
Case 2:13-cv-01014-JCC Document 55 Filed 08/07/14 Page 3 of 14
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ORDER
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2. The Cain Lawsuit
The Cain lawsuit is a class action lawsuit asserting violations of Michigan‘s Video Rental
Privacy Act, which generally forbids entities ―engaged in the business of selling at retail, renting,
or lending books or other written materials, sound recordings, or video recordings‖ from
―disclos[ing] to any person, other than the customer, a record or information concerning the
purchase, lease, rental, or borrowing of those materials by a customer that indicates the identity
of the customer.‖ Mich. Comp. Laws § 445.1712. There are five narrow exceptions to that law.
Mich. Comp. Laws. § 445.1713. The plaintiffs in that case alleged that Redbox violated the
statute by sending customer information to third parties, gathered when a customer rents a
movie, without the customer‘s consent. (Dkt. No. 39, Ex. 1 at 10–13.)
3. The Mehrens Lawsuit
The Mehrens lawsuit is a class action lawsuit asserting violations of California‘s Song-
Beverly Credit Card Act, codified at Cal. Civ. Code § 1747.08, which forbids entities that accept
credit cards for the transaction of business from requesting or requiring the cardholder to write,
or provide to the entity to write, any personal identification information on a credit card
transaction form. Cal. Civ. Code § 1747.08(a)(1)–(2). It similarly bars the use of a credit card
form that contains preprinted spaces designated for filling in any personal identification
information of the cardholder. Cal. Civ. Code § 1747.08(a)(3). There are specific exceptions to
those requirements. Cal. Civ. Code § 1747.08(c). ―Personal identification information‖ is
information concerning the cardholder, other than information set forth on the credit card. Cal.
Civ. Code § 1747.08(b). In Mehrens, the plaintiffs argued that when Redbox requested a
customer‘s billing zip code and/or email, it violated of Cal. Civ. Code § 1747.08 because such a
request constituted a request for personal information under the statute. (Dkt. No. 39, Ex. 2 at
18–19.)
//
//
Case 2:13-cv-01014-JCC Document 55 Filed 08/07/14 Page 4 of 14
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ORDER
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4. Communications Regarding Tenders of Claims, Reservations of Rights, and
Attorney Fee Rates
On January 11, 2012, after receiving a tender of claim from Redbox regarding the
Mehrens suit, National Union sent a reservation of rights letter to Redbox. (Dkt. No. 38, Ex. 2.)
In that letter, National Union, ―[a]s a matter of good faith and fair dealing‖ agreed to ―pay for
defense costs incurred by Redbox as of January 6, 2012 with respect to th[at] lawsuit.‖ (Id. at 2–
3.) However, it ―reserve[d] the right to limit payment to only those attorney fees that comport
with [its] defense billing guidelines.‖ (Dkt. No. 38, Ex. 2 at 2 n.3.) The same day, National
Union sent a similar reservation of rights letter to Redbox regarding Redbox‘s tender of claim in
the Sterk suit. (Dkt. No. 38, Ex. 1.) On April 18, 2012, National Union agreed to provide
―provide a defense to Redbox [in Holt] under a complete reservation of rights against the claims
set forth in the class action lawsuit.‖ (Dkt. No. 38, Ex. 3 at 4.) On February 28, 2013, National
Union agreed to ―provide a defense to Redbox [in Cain] subject to a full reservation of rights.‖
(Dkt. No. 38, Ex. 4 at 1.) In each of the letters sent, National Union noted that coverage was
limited under the terms and conditions of the insurance policy. In none of the suits did National
Union retain counsel for Redbox, or indicate that it intended to appoint counsel of its own.
Indeed, in the suits that had not been resolved,4
National Union agreed to the continued retention
of the attorneys previously hired by Redbox.
National Union first alerted Redbox to the rates it would pay attorneys to defend certain
of the above suits on September 5, 2012. It informed Redbox that the rates it would pay to
defend Redbox in Sterk were ―$240 for senior partner, $220 for junior partner, $183 for senior
associate, $173 for junior associate, and $80 for paralegals.‖ (Dkt. No. 41, Ex. 2.) Later, National
Union informed Redbox that the same rates would apply to the defense of the other actions at
issue in this case. (See Dkt. No. 43 at 2–3, ¶ 4.)
//
4
At the time the letters wre sent, Holt had been dismissed.
Case 2:13-cv-01014-JCC Document 55 Filed 08/07/14 Page 5 of 14
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ORDER
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5. Proceedings in this Court
On May 28, 2014, National Union filed a motion for summary judgment on all
counterclaims, arguing that it has no obligation to defend Redbox in either Cain or Mehrens, and
that it is not obligated to pay attorneys fees in excess of the rates it set. (Dkt. No. 37.) Redbox
responded, (Dkt. No. 47), and National Union replied. (Dkt. No. 49.) Redbox filed a notice of
supplemental authority. (Dkt. No. 50.)
II. DISCUSSION
Under Federal Rule of Civil Procedure 56, the Court must enter summary judgment if the
record shows ―that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.‖ Fed. R. Civ. P. 56(a). In determining whether an issue
of material fact exists, the Court must determine ―whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.‖ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986).
Accordingly, the Court must ―draw all reasonable inferences in favor of the nonmoving party,
and it may not make credibility determinations or weigh the evidence.‖ Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). In Washington, the interpretation of an
insurance policy is a question of law. Pub. Util. Dist. No. 1 v. Int’l Ins. Co., 881 P.2d 1020, 1025
(Wash. 1994) (en banc). Courts construe the terms of an insurance policy in a ―fair, reasonable,
and sensible‖ manner, as ―the average person purchasing insurance‖ would understand them.
Overton v. Consol. Ins. Co., 38 P.3d 322, 325 (Wash. 2002) (quotation marks omitted). If the
policy language is clear and unambiguous, the court must enforce it as written and may not
modify it or create ambiguity where none exists. Int’l Ins. Co., 881 P.2d at 1025.
―The duty to defend generally is determined from the ‗eight corners‘ of the insurance
contract and the underlying complaint.‖ Expedia, Inc. v. Steadfast Ins. Co., Case No. 88673-3,
2014 WL 3199497 at *4 (Wash. July 3, 2014) (en banc). In this case, three separate claims are at
issue: whether the claims raised by the plaintiffs in the Cain lawsuit are within the scope of the
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insurance policies; whether the claims raised by the plaintiffs in the Mehrens lawsuit are within
the scope of the insurance policies; and whether National Union has the unbounded authority to
determine the attorney fee rates it will pay to defend the underlying lawsuits under a reservation
of rights.
A. Cain lawsuit
Under Washington law, the duty to defend is broader than the duty to indemnify. Hayden
v. Mut. of Enumclaw Ins. Co., 1 P.3d 1167, 1171 (Wash. 2000) (en banc). The duty to defend
arises at the time an action is first brought, and is based on the potential for liability. Truck Ins.
Exch. v. VanPort Homes, Inc., 58 P.3d 276, 281 (Wash. 2002) (en banc). ―The duty to defend
‗arises when a complaint against the insured, construed liberally, alleges facts which could, if
proven, impose liability upon the insured within the policy‘s coverage.‘‖ Id. at 281–82 (quoting
Unigard Ins. Co. v. Leven, 983 P.2d 1155, 1160 (Ct. App. Wash. 1999)). Conversely, the duty to
indemnify ―hinges on the insured‘s actual liability to the claimant and actual coverage under the
policy.‖ Hayden, 1 P.3d at 1171. An insurer defending a suit under a reservation of rights ―must
defend until it is clear that the claim is not covered.‖ Am. Best Food, Inc. v. Alea London, Ltd.,
229 P.3d 693, 696 (Wash. 2010) (en banc). See also Kirk v. Mt. Airy Ins. Co., 951 P.2d 1124,
1126 (Wash. 1998) (en banc).
Here, Michigan‘s Video Rental Privacy Act (―VRPA‖), at issue in Cain, is effectively
identical to the federal VPPA at issue in Sterk, and a similar analysis governs, barring coverage.
(See Dkt. No. 25 at 4–8.) In effect, because Michigan‘s Video Rental Privacy Act bars the
disclosure of any ―record[s] or information concerning the purchase, lease, rental, or borrowing‖
of a video recording to any person other than the customer, Mich. Comp. Laws § 445.1712, and
because Exclusion (p) excludes from coverage any loss arising from the violation of a statute that
―addresses or applies to the sending, transmitting or communicating of any material or
information, by any means whatsoever,‖ (Dkt. No. 20, Ex. B. at NU 084; Ex. C at 160),
Exclusion (p), by its terms, excludes coverage for claims arising under the Michigan VRPA. The
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―disclosure‖ of information to any non-customer person under the VRPA is necessarily
encompassed by the terms ―sending, transmitting or communicating any material or information,
by any means whatsoever.‖ Thus, as a matter of contract interpretation, Exclusion (p) precludes
coverage for Redbox‘s alleged breaches of the Michigan VRPA in the Cain lawsuit.
Redbox argues that National Union should be estopped from asserting that the Cain
claims are not covered by the policies. Under Washington law, ―insurers have not only a general
duty of good faith, . . . but also a specific duty to act with reasonable promptness in investigation
and communication with their insureds following a notice of claim and tender of defense.‖ St.
Paul Fire and Marine Ins. Co. v. Onvia, Inc., 196 P.3d 664, 669 (Wash. 2008) (en banc). Thus,
an insurer ―who accepts the duty to defend under a reservation of rights but then performs the
duty in bad faith, is no less liable than the insurer who accepts but later rejects the duty.‖ Safeco
Ins. Co. of Am. V. Butler, 823 P.2d 499, 504–05 (Wash. 1992). ―[W]here an insurer acts in bad
faith in handling a claim under a reservation of rights, the insurer is estopped from denying
coverage.‖ Butler, 823 P.2d at 505. While ―harm is an essential element of an action for an
insurer‘s bad faith handling of a claim under a reservation of rights,‖ there is a rebuttable
―presumption of harm‖ as long as the insured has established bad faith. Butler, 823 P.2d at 506.
Thus, if the insured prevails on the bad faith claim and the insurer fails to rebut the presumption
of harm, ―the insurer is estopped from denying coverage.‖ Id.
As Redbox notes, an insurer accepting a duty to defend under a reservation of rights
―may not desert policyholders and allow them to incur substantial legal costs while waiting for
an indemnity determination.‖ Truck Ins. Exch., 58 P.3d at 282. Redbox contends that National
Union acted in bad faith by accepting the case under a reservation of rights, and then ―failing to
pay any costs for the last 17 months or otherwise provide any other support to Redbox in Cain.‖
(Dkt. No. 47 at 8.) But it was Redbox that asked to appoint its own counsel and then be
reimbursed by National Union. Redbox could have demanded that National Union appoint and
directly pay counsel on its behalf, but Redbox decided instead to hire its own attorney, and be
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reimbursed.
There is no suggestion that National Union has gained any benefit by failing to reimburse
Redbox as promptly as Redbox desires. This is not a case where the insurance company was
alleged to have failed to conduct an investigation, which resulted in lost evidence. See Butler,
823 P.2d at 506. Nor did National Union allegedly attempt to manipulate Redbox‘s lawyers into
giving it information that would help it avoid coverage. Id. Moreover, the evidence submitted
shows that National Union has not abandoned Redbox: National Union has responded to
Redbox‘s correspondence; has agreed to fund—at least partly—the defense regardless of
whether Redbox is actually covered; and has reimbursed Redbox at least partly for the expenses
that Redbox has incurred. National Union‘s failure to reimburse Redbox as quickly as Redbox
would prefer cannot wholly neutralize the evidence that National Union has participated in the
forgoing proceedings and has not abandoned Redbox to its fate. Thus, the late payment of
invoices—the only substantive basis put forward by Redbox for bad faith5
— is not sufficient to
create a genuine issue of material fact as to the existence of bad faith.
Accordingly, the Court finds that there is no genuine issue of material fact as to whether
the defense of Cain is covered by the insurance policy, as well as whether National Union is
estopped from arguing that Cain is not covered by the contract.
B. Mehrens Lawsuit
An insurer‘s ―duty to defend arises at the time an action is first brought, and is based on
the potential for liability.‖ Truck, 58 P.3d at 281. ―The duty to defend generally is determined
from the ‗eight corners‘ of the insurance contract and the underlying complaint.‖ Expedia, Inc. v.
Steadfast Ins. Co., Case No. 88673-3, 2014 WL 3199497 (Wash. July 3, 2014) (en banc). Thus,
5
Redbox argues that in addition to the late payments, National Union failed to ―otherwise
provide any other support to Redbox in Cain.‖ (Dkt. No. 47 at 8.) But as noted above, Redbox
itself decided to select its own attorney and seek reimbursement, as opposed to allowing National
Union to select an attorney on its behalf. In any case, Redbox does not define the ―other support‖
to which it believes it is entitled.
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for the Court to determine the presence or absence of the duty to defend, the Court must look to
the language of the insurance contract, and see whether that language covers the behavior in the
underlying complaint giving rise to the cause of action. Here, for the insurance policies to cover
the Mehrens suit, the underlying injury in Mehrens must consist of a ―personal injury and
advertising injury,‖ defined as any form of injury, humiliation, mental anguish or shock, ―arising
out of‖ the ―[o]ral or written publication, in any manner, of material that violates a person‘s right
of privacy.‖ (Dkt. No. 20, Ex. B. at NU 036; Ex. C at NU 112.)
The claim underlying the Mehrens lawsuit is that Redbox ―requested and/or required
[Mehrens] to provide his ZIP code and e-mail address, which [Redbox] recorded as a part of
processing the credit card transaction,‖ and that, as a result, ―[Mehrens] provided personal
identification information to [Redbox] and [Mehrens] is informed and believes [Redbox]
recorded said information in their computer and information systems,‖ in violation of California
Civil Code § 1747.08. (Dkt. No. 39, Ex. 2 at 18, ¶ 75.) That statute prohibits an entity that
accepts credit card charges as payment from requesting or requiring that the cardholder provide
personal identification information when accepting a credit card payment. Cal. Civ. Code §
1747.08(a). Personal identification information is ―information concerning the cardholder, other
than information set forth on the credit card, and including, but not limited to, the cardholder‘s
address and telephone number.‖ Cal. Civ. Code. § 1747.08(b).
The California statute is not concerned with, and does not prohibit, the publication of any
information. See Cal. Civ. Code. § 1747.08(a). Rather, it prohibits an entity from requesting or
requiring personal identification information from the holder of a credit card. Thus, the injury
alleged in Mehrens did arose out of the alleged collection of personal information, rather than its
oral or written publication, as required by the insurance policy. (See Dkt. No. 20, Ex. B. at NU
036; Ex. C at NU 112.)
It is true that, as Redbox points out, the Mehrens complaint also alleges that Redbox used
the ―ZIP codes collected during the checkout process for marketing purposes,‖ (Dkt. No. 39, Ex.
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2 at 10, ¶ 49), ―share[d] their customer personal information databases with outside entities,‖
(Dkt. No. 39, Ex. 2 at 13, ¶ 59), and ―profit[ed] by sending ‗marketing information on behalf of
one of [Redbox‘s] business partners about products or services they provide . . .‘ to its customers
using the personal identification information collected during credit/debit card transactions.‖
(Dkt. No. 39, Ex. 2 at 13, ¶ 60.) However, those allegations are not relevant to the single cause of
action in the Mehrens complaint, which rests solely on allegations that Redbox wrongfully
requested or collected personal information from its customers. (See Dkt. No. 39, Ex. 2 at 18, ¶
75.)
Accordingly, there is no genuine issue of material fact as to whether the injury alleged
arose out of the oral or written publication of any material that violated the right of privacy of the
plaintiffs in the Mehrens suit.
C. Payment of Defense Fees
In Washington, if an insurer accepts defense of an action, with or without a reservation of
rights, ―the insured receives the benefit of a defense until a court declares none is owed.‖ Nat’l
Sur. Corp. v. Immunex Corp., 297 P.3d 688, 693–94 (Wash. 2013). Thus, an insurer ―may be
held responsible for the reasonable defense costs incurred by its insured until [a] trial court
determine[s] [that the insurer] had no duty to defend.‖ Id. at 695. An insurer is released from its
obligation to pay for the defense of an action only ―[a]fter obtaining a declaration of
noncoverage.‖ Id. at 694. Here, Redbox argues that National Union is breaching its duty to
defend6
by unilaterally determining the amount it will pay the attorneys defending Redbox in the
underlying actions, by failing to use reasonable factors to set such limits, and by failing to alert
Redbox to the relevant limits before Redbox incurred defense costs. (Dkt. No. 15 at 9–10, ¶¶ 20–
26.) National Union argues that this claim is invalid for several reasons.
6
Here, at issue is the duty to defend, not the duty to indemnify. These are supported by
the letters sent by National Union accepting defense of the actions under a reservation of rights.
(See Dkt. No. 38, Ex. 1 at 1–2; Dkt. No. 38, Ex. 2 at 3; Dkt. No. 38, Ex. 3 at 2; Dkt. No. 38, Ex.
4 at 1.)
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First, National Union states that because ―National Union has no duty to defend Redbox
in the underlying lawsuits . . . [i]t necessarily follows that any issue regarding the defense of
Redbox would be rendered moot, once it has been determined that the National Union Policies
do not cover the underlying lawsuits.‖ (Dkt. No. 37 at 17.) Thus, National Union argues that
―Redbox‘s counterclaims regarding the defense costs should be dismissed.‖ (Id.) However, under
a reservation of rights, an insurer is responsible for paying all reasonable defense costs incurred
by the insured until a court determines that the insurer has no duty to defend. Immunex, 297 P.3d
at 693–94. Thus, even though the Court now holds that National Union no longer has a duty to
defend Redbox in Cain and Mehrens, and previously held that the same is true for Sterk,
National Union is still responsible for ―all reasonable defense costs incurred,‖ id., up until such a
time as the Court informs it that it no longer has a duty to defend.
Second, National Union argues that the policies grant it unlimited discretion to determine
the amounts it will pay to defend Redbox. Specifically, it argues that the contractual provision
that reserves to National Union ―the right and duty to defend the insured against any ‗suit‘
seeking‖ specified damages and states that National Union ―may, at [its] discretion, investigate
any offense and settle any claim or ‗suit‘ that may result,‖ vests with National Union ―the right to
control the defense including the selection of defense counsel.‖ (Dkt. No. 37 at 18.) Thus,
National Union argues that it has ―the contractual right to control the defense of Redbox in the
underlying lawsuits,‖ and Redbox does not have the right ―to dictate how the defense [is] to be
conducted or how much defense counsel [is] to be paid by the insurer.‖ (Dkt. No. 37 at 20.)
Moreover, National Union notes that the contract specified that Redbox should not, ―except at
the insured‘s own cost, voluntarily make a payment, assume any obligation, or incur any
expense, other than for first aid, without [National Union‘s] consent.‖ (Dkt. No. 37 at 21)
(quoting Dkt. No. 20, Ex. B at NU 33, Ex. C at NU 109.)7
In effect, Redbox appears to be
7
However, in National Union‘s reservation of rights letters, it agreed to allow Redbox to
retain the counsel it had selected, and thus gave consent to Redbox to incur certain expenses that
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arguing that it has the sole power to set the rates it will pay for the defense of a lawsuit, without
any restrictions, and regardless of the unreasonableness of its rates.
A defense under a reservation of rights ―must be a real defense.‖ Immunex, 297 P.3d at
694, and the insurer ―may be held responsible for the reasonable defense costs incurred by its
insured until [a] trial court determine[s] [that the insurer] had no duty to defend.‖ Id. at 695.
Thus, barring a contract term to the contrary, National Union does not have unbounded
discretion to unilaterally limit the rates it will pay. Here, there were no provisions in the policy
that explicitly limited the rates National Union would pay. It is true that generally insureds may
not ―freely conduct their own litigation and then seek reimbursement‖ where the policy obligates
the insurer only to ―defend through counsel of its own choosing.‖ Griffin v. Allstate Ins. Co., 29
P.3d 777, 782 (Ct. App. Wash. 2001). But here, National Union explicitly ―agree[d] to [the
attorneys‘] continued retention as Redbox‘s defense counsel.‖ (See Dkt. No. 38, Ex. 1 at 1–2;
Dkt. No. 38, Ex. 3 at 2; Dkt. No. 38, Ex. 4 at 1.) In doing so, it relinquished its right to choose an
attorney to defend the underlying suits. And while National Union did say that the rates it would
pay were limited by the terms and conditions of the insurance policies, no attorney fee rates were
set out in the policies. Nor did National Union alert Redbox to the relevant attorney fee rates in
its reservation of rights letters. In the absence of a policy provision limiting the rates National
Union agreed to pay, it is responsible for the reasonable defense costs incurred by its insured.
Finally, while National Union does not primarily rely on arguments related to the
reasonableness of the various fee rates, the Court declines to grant summary judgment on such a
basis. The reasonableness of the rates of the attorneys hired by Redbox to defend the underlying
suits—as well as the reasonableness of National Union‘s attorney fee rates—is a question of fact
it agreed to reimburse. It argues, however, that its consent was limited when it said that it would
only pay rates consistent with the rates it typically paid to its panel counsel, and that the
attorneys selected by Redbox would be obligated to comply with AIG‘s litigation guidelines.
(Dkt. No. 37 at 22.)
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that should not be decided on a motion for summary judgment.
There is a genuine issue of material fact as to whether National Union was allowed to
limit the rates paid to attorneys to defend the underlying suits to $240 for senior partners, $220
for junior partners, $183 for senior associates, $173 for junior associates, and $80 for paralegals.
The Court declines to grant summary judgment on Redbox‘s claim regarding the inadequacy of
the rates that National Union agreed to pay for the defense of the underlying actions.
III. CONCLUSION
For the foregoing reasons, National Union‘s motion for summary judgment (Dkt. No. 37)
is GRANTED IN PART and DENIED IN PART. The Court GRANTS summary judgment to
National Union as to Redbox‘s declaratory judgment claims regarding coverage under the Cain
and Mehrens lawsuits, and DENIES summary judgment as to whether it is allowed to
unilaterally set the fee rates for the attorneys hired by Redbox to defend the various lawsuits.
DATED this 7th day of August 2014.
AJohn C. Coughenour
UNITED STATES DISTRICT JUDGE
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