Carolina Casualty Insurance Company v. Ortiz, et al
Filing
175
JUDGMENT dated *3/11/10* in favor of Plaintiff and Counter-Defendant Carolina Casualty Insurance Company. (Hellings, J)
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400 OYSTER POINT BLVD., SUITE 415 SO. SAN FRANCISCO, CALIFORNIA 94080
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION CAROLINA CASUALTY INSURANCE ) ) Case No.: 1:08-CV-00691-LJO-SMS COMPANY, ) ) Plaintiff, ) JUDGMENT IN FAVOR OF PLAINTIFF ) AND COUNTER-DEFENDANT vs. ) CAROLINA CASUALTY INSURANCE ) COMPANY ) ELIZABETH S. ORTIZ, et al. ) ) ) Defendants. ) ) ) ) AND RELATED COUNTERCLAIMS ) ) Following the Order of January 4, 2010 [Doc. 164] on Cross-Motions for Summary Adjudication on the Issue of Insurance Coverage whereby the Court granted the Motion of Plaintiff and Counter-Defendant, CAROLINA CASUALTY INSURANCE COMPANY ("Carolina Casualty"), and denied the Motions of Defendants and Counterclaimants ELIZABETH S. ORTIZ, individually and as Guardian Ad Litem for KASSANDRA N. ORTIZ and ALEXIS J. ORTIZ, minors; KASSANDRA N. ORTIZ and ALEXIS J. ORTIZ, each individually; ESTATE OF JAVIER ORTIZ FUENTES, by and through its Representative ELIZABETH S. ORTIZ (collectively, the "Ortiz Defendants"), and Defendants and Counterclaimants VERONICA DIEGO, individually and as Guardian Ad Litem for JOSE ANTONIO DIEGO and ROBERTO DIEGO-JERONIMO, minors; JOSE ANTONIO DIEGO and ROBERTO DIEGO-JERONIMO, each individually and as Successors in Interest of Aniceto Diego Trujillo, deceased; MARIA GUADALUPE ALFARO VEGA, individually and as Guardian ad Litem for KARINA ALEJANDRA CORTES ALFARO and LUIS GERARDO CORTES ALFARO, minors, each individually and as Successors in Interest of Gerardo Cortes
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[PROPOSED] JUDGMENT IN FAVOR OF PLAINTIFF AND COUNTER-DEFENDANT CAROLINA CASUALTY INSURANCE COMPANY
CHOLAKIAN & ASSOCIATES
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A PROFESSIONAL CORPORATION
LAW OFFICES OF
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400 OYSTER POINT BLVD., SUITE 415 SO. SAN FRANCISCO, CALIFORNIA 94080
Cervantes, a.k.a. Gerardo Cortez, deceased; MARIA IMELDA MERCADO individually and as Guardian Ad Litem for VICKY NAVA, JOESELYN NAVA and STEPHANIE NAVA, minors; VICKY NAVA, JOESELYN NAVA and STEPHANIE NAVA, each individually and as Successors in Interest of Gabino Nava Sanchez a.k.a. Omar Ramirez, deceased; FAVIOLA QUEZADAS DE VELASQUEZ, individually and as Guardian ad Litem for LAURA ALEJANDRA VELASQUEZ QUEZADAS, ALONDRA LIZBETH VELASQUEZ QUEZADAS, JOSE DE JESUS VELASQUEZ-QUEZADA, JOHN VELASQUEZ-QUEZADA, RICHARD VELASQUEZ-QUEZADA and DIEGO EMMAUEL VELASQUEZ-QUEZADA, minors; LAURA ALEJANDRA VELASQUEZ QUEZADAS, ALONDRA LIZBETH VELASQUEZ QUEZADAS, JOSE DE JESUS VELASQUEZ-QUEZADA, JOHN VELASQUEZ-QUEZADA, RICHARD VELASQUEZ-QUEZADA and DIEGO EMMAUEL VELASQUEZ-QUEZADA, each individually and as Successors in Interest of Jose Valasquez Martinez, deceased (collectively, the "Diego Defendants"), and the pretrial conference on February 23, 2010, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED as follows: 1. Judgment is hereby entered upon the Court's Order of January 4, 2010 on Cross
CHOLAKIAN & ASSOCIATES
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A PROFESSIONAL CORPORATION
LAW OFFICES OF
Motions for Summary Adjudication on the Issue of Insurance Coverage. [Doc. 164.] Insurance coverage was not afforded under Carolina Casualty's policy numbered CTP 3398 30 to A&A Transport Company, Inc. ("A&A Transport") as an additional insured for the claims and action against A&A Transport and its employee Jose Pimental Rodriguez for the injuries and damages arising out of the accident on August 10, 2005. 2. moot. 3. The remaining counts and claims of the Ortiz Defendants and the Diego The adjudication on insurance coverage renders the remaining counts and claims
Defendants are parasitic in nature and dependent on a finding of coverage. These counts and claims are not viable absent the establishment of coverage. 4. Carolina Casualty's alternate Claim for Reformation is moot in light of the
Court's adjudication that insurance coverage was not afforded under Carolina Casualty's policy numbered CTP 3398 30 to A&A Transport as an additional insured for the claims and action
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[PROPOSED] JUDGMENT IN FAVOR OF PLAINTIFF AND COUNTER-DEFENDANT CAROLINA CASUALTY INSURANCE COMPANY
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400 OYSTER POINT BLVD., SUITE 415 SO. SAN FRANCISCO, CALIFORNIA 94080
against A&A Transport and its employee Jose Pimental Rodriguez for the injuries and damages arising out of the accident on August 10, 2005. 5. Therefore, pursuant to the authority of Portsmouth Square, Inc. v. Shareholders
Protective Committee, 770 F.2d 866, 869 (9th Cir. 1985), and Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986), and the waiver by all parties of notice of the Court's intention to consider granting summary judgment at the pretrial conference, IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Summary Judgment is entered sua sponte in favor of Carolina Casualty, and against the Ortiz Defendants and the Diego Defendants, as to the entire action. 6. In the event that this Court's adjudication on insurance coverage is reversed on
appeal, each of the remaining counts and claims, i.e., the Ortiz and Diego Defendants' Claim for Breach of the Implied Covenant of Good Faith and Fair Dealing and Claim for Negligent Misrepresentation, and Carolina Casualty's alternate Claim for Reformation, shall be resuscitated.
CHOLAKIAN & ASSOCIATES
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A PROFESSIONAL CORPORATION
LAW OFFICES OF
DATED: March 11, 2010_ _____/s/ Lawrence J. O'Neill______ Hon. Lawrence J. O'Neill United States District Judge
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Case No.: 1:08-CV-00691-LJO-S
[PROPOSED] JUDGMENT IN FAVOR OF PLAINTIFF AND COUNTER-DEFENDANT CAROLINA CASUALTY INSURANCE COMPANY
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400 OYSTER POINT BLVD., SUITE 415 SO. SAN FRANCISCO, CALIFORNIA 94080
Approved as to form: Dated: 3/05/10 CHOLAKIAN & ASSOCIATES A Professional Corporation By: /s/ Vivian L. Lerche (as authorized on 3/5/10) Kevin K. Cholakian Vivian L. Lerche Attorneys for Plaintiff and Counter-Defendant CAROLINA CASUALTY INSURANCE COMPANY Dated: 3/05/10 LANG, RICHERT & PATCH
CHOLAKIAN & ASSOCIATES
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A PROFESSIONAL CORPORATION
By: /s/ David T. Richards (as authorized on 3/5/10) Robert L. Patch, II David T. Richards Attorneys for Defendants and Counterclaimants THE ORTIZ DEFENDANTS Dated: 3/05/10 PEREZ, WILLIAMS & MEDINA
LAW OFFICES OF
By: /s/ Robert Gray Williams (as authorized on 3/5/10) Robert Gray Williams Attorneys for Defendants and Counterclaimants DIEGO, ALFARO, NAVA AND VELASQUEZ DEFENDANTS
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Case No.: 1:08-CV-00691-LJO-S
[PROPOSED] JUDGMENT IN FAVOR OF PLAINTIFF AND COUNTER-DEFENDANT CAROLINA CASUALTY INSURANCE COMPANY
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