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R.W. Hertel Sons, Inc. v. Arch Specialty Ins. Co.

United States District Court, E.D. California, Sacramento Division
Mar 18, 2008
CV 07-1054-LEW-EFB (E.D. Cal. Mar. 18, 2008)

Opinion

CV 07-1054-LEW-EFB.

March 18, 2008


ORDER


Currently before this Court are (1) Plaintiff's Motion for Partial Summary Judgment of Defendant's Duty to Defend; and (2) Defendant's Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Issues. Having considered all papers and arguments, THE COURT NOW FINDS AND RULES AS FOLLOWS:

As a preliminary matter, the Court overrules as moot Defendant's Objections filed in Plaintiff's Motion and in Defendant's Motion because the Court did not rely on the evidence objected to by Defendant.

Moreover, the Court GRANTS Defendant's Request for Judicial Notice as to all documents. Further, the Court GRANTS Plaintiff's Request for Judicial Notice as to both documents.

The doctrine of collateral estoppel does not bar Plaintiff's claims in this action because the issue necessarily decided in the previous suit is not identical to the issue sought to be litigated in this case. In addition, Plaintiff was and is not in privity with a party to the previous suit.

Cevista Inc. v. Arch Specialty Ins. Co., Case No. CV 028128, California Superior Court, County of San Joaquin, Stockton Branch.

Nevertheless, Defendant does not owe a duty to defend Plaintiff in the Figuerrido Action because of three separate and independent reasons: See see also General Star Indem. Co. v. Superior Court 47 Cal. App. 4th 1586 1590-91 McLaughlin v. Nat'l Union Fire Ins. Co. 23 Cal. App. 4th 1132 1152 State Farm Mut. Auto. Ins. Co. v. Longden 197 Cal. App. 3d 226 233 see also Waller v. Truck Ins. Exch. 11 Cal. 4th 1 26

Figuerrido v. Cevista, Inc., et al., Case No. CV 025392, California Superior Court, County of San Joaquin, Stockton Branch.

(1) Defendant does not owe a duty to defend Plaintiff because the clear language of the Policy states that Defendant owes a duty to defend only to a Named Insured, and Plaintiff is not a Named Insured. ( the Policy in Section I: "We have the right and duty to defend you, the Named Insured . . . we have no duty to defend any other insured."); , , (Cal.App.Ct. 1996) (insurance policy language may limit or negate the insurer's duty to defend). Plaintiff is not a "Named Insured" because the Policy defines "Named Insured" as "the person or organization named in Item 1 of the Declarations of this policy," and Plaintiff is not named in the Declarations of the Policy. (2) Defendant does not owe a duty to defend Plaintiff in the Figuerrido Action because there is no potential for coverage. There is no potential for coverage because the Contractors Special Conditions Endorsement has not been satisfied. (3) Defendant does not owe a duty to defend Plaintiff because any possible "potential for liability turns on resolution of a legal question." , , (Cal.App.Ct. 1994) (citing , , (Cal.App.Ct. 1987)); , , (1995).

Accordingly, the Court: DENIES GRANTS

— Plaintiff's Motion for Partial Summary Judgment of Defendant's Duty to Defend; and — Defendant's Motion for Summary Judgment as to all causes of action. IT IS SO ORDERED.


Summaries of

R.W. Hertel Sons, Inc. v. Arch Specialty Ins. Co.

United States District Court, E.D. California, Sacramento Division
Mar 18, 2008
CV 07-1054-LEW-EFB (E.D. Cal. Mar. 18, 2008)
Case details for

R.W. Hertel Sons, Inc. v. Arch Specialty Ins. Co.

Case Details

Full title:R.W. Hertel Sons, Inc., Plaintiff, v. Arch Specialty Ins. Co., Defendant

Court:United States District Court, E.D. California, Sacramento Division

Date published: Mar 18, 2008

Citations

CV 07-1054-LEW-EFB (E.D. Cal. Mar. 18, 2008)