Tower Insurance Company of New York v. Capurro Enterprises, Inc. et al
Filing
73
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE MOTION FOR PARTIAL SUMMARY JUDGMENT 69 (Illston, Susan) (Filed on 8/3/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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TOWER INS. CO. OF NEW YORK,
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Plaintiff,
United States District Court
For the Northern District of California
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No. C 11-03806 SI
ORDER GRANTING PLAINTIFF’S
MOTION FOR LEAVE TO FILE
MOTION FOR PARTIAL SUMMARY
JUDGMENT
v.
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CAPURRO ENTERPRISES INC., et al.,
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Defendants.
___________________________________/
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AND RELATED COUNTERCLAIMS.
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The Court has disposed of the threshold issue of plaintiff-insurer’s duty to defend in this
declaratory insurance action in the two orders of December 15, 2011 and April 2, 2011. See Dkts. 45
and 68. The Court found that plaintiff Tower Insurance Co. (“Tower”) wrongfully denied its insured,
defendant Capurro Enterprises, Inc. (“Capurro”), a defense in an underlying action brought against
Capurro. In the December 15, 2011 Order, the Court also denied Tower’s motion for summary
judgment with respect to Capurro’s counterclaim for breach of the implied covenant of good faith and
fair dealing. The Court held that it is a question for a jury whether or not Tower’s withholding of
benefits was unreasonable, a necessary element of a claim for breach of the implied covenant. See Dkt.
45 at 12-13.
On July 20, 2012, Tower filed a motion requesting leave to file a second motion for partial
summary judgment on the breach of the implied covenant claim. See Dkt. 69. In the attached proposed
motion, Tower argues that it relied on the advice of counsel in denying Capurro’s claim, and therefore,
it cannot be held liable for breach of the implied covenant. See Dkt 69-1 [Proposed Motion].
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The Court GRANTS Tower’s motion for leave to file a motion for partial summary judgment,
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and accepts the proposed motion as filed. Capurro shall file a response no later than August 17, 2012.
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Tower may the file a reply by August 24, 2012. A hearing shall be held on the motions on August 31,
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2012.
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IT IS SO ORDERED.
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Dated: August 3, 2012
United States District Court
For the Northern District of California
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___________________
SUSAN ILLSTON
United States District Judge
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