Endurance American Specialty Insurance Company v. Lance-Kashian & Co. et al
Filing
102
JUDGMENT signed by District Judge Lawrence J. O'Neill on 11/16/2011. CASE CLOSED. (Jessen, A)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ENDURANCE AMERICAN
SPECIALTY INSURANCE
COMPANY,
Plaintiff,
CASE NO. CV F 10-1284 LJO DLB
JUDGMENT
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(Docs. 100, 101.)
vs.
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LANCE-KASHIAN & COMPANY,
et al.,
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Defendants.
/
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AND COUNTER-ACTION.
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___________________________________/
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In response to this Court’s November 8, 2011 Summary Judgment Decision (“decision”),
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defendants/counter-complainants1 seek this Court’s determination that the decision did not resolve
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malicious prosecution-sounding claims in connection with dismissal of plaintiff/counter-defendant’s2
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attorney fees and punitive damages claims and bad faith claim to the extent based in tort. The insureds
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point to general allegations in their First Amended Counter-Claim (“FACC”) that Endurance knowingly
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Defendants/counter-complainants are Lance-Kashian & Company, Edward Kashian and Jennifer Schuh
and will be referred to collectively as “insureds.”
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Plaintiff/counter-defendant is Endurance American Specialty Insurance Company and will be referred to
as “Endurance.”
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pursued in this action “baseless” reverse “bad faith,” attorney fees and punitive damages claims to exert
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“financial pressure” on the insureds to “force them to forfeit all or nearly all of their vested rights and
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the benefits owed to them under the Policy” which Endurance had issued to the insureds. The insureds
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further rely on similar allegations to support the FACC’s breach of contract claim.
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Neither the parties’ cross-summary judgment motions nor the decision addressed a malicious
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prosecution-sounding claim based on dismissal of Endurance’s attorney fees and punitive damages
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claims and bad faith claim to the extent based in tort. Dismissal of the Endurance claims was not raised
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because the FACC did not allege a malicious prosecution-sounding claim, which the insureds contend
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remains. Dismissal of the Endurance claims was subsumed in other FACC claims, which the parties and
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decision addressed.
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“[S]ummary judgment cannot be granted on the basis of claims or defenses not pleaded.” 2
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Schwarzer, Tashima & Wagstaffe, Cal. Practice Guide: Federal Civil Procedure Before Trial (2011)
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Summary Judgment, para. 14:27.1, p. 14-10. The decision did not address a malicious prosecution-
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sounding claim because it was not pleaded and was not at issue. As such, the decision correctly
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concluded that “such summary judgment is conclusive effectively on all the parties’ respective claims
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and grounds for summary judgment.”
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On the basis of good cause, this Court ENTERS this final judgment in accordance with the
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decision to adjudicate conclusively all the parties’ claims and grounds for summary judgment. The clerk
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is directed to close this action.
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IT IS SO ORDERED.
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Dated:
66h44d
November 16, 2011
/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE
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