Free Motion to Dismiss Counts/Claims - District Court of Arizona - Arizona

1 2 3 4 5

Donald L. Myles, Jr., Bar #007464 Neil Singh, Bar #021327 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 (602) 263-1743 [email protected] [email protected] Attorneys for Defendant

6 UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 SWA Painting, Inc. 9 Plaintiff, 10 v. 11 12 13 Defendants. 14 15 16 17 18 19 20 21 22 23 24 25 26 The parties, Plaintiff SWA Painting, Inc. and Defendant Golden Eagle Insurance Company, respectfully stipulate and request this Court to enter its order in accordance with an agreement reached by the parties as described below. MEMO RANDUM OF POINTS AND AUTHORITIES This is a state court action removed to federal court arising out of a dispute over insurance coverage and allegations of bad faith. After considering motions for summary judgment and conducting an evidentiary hearing, this Court has ruled that, inter alia, (1) Defendant does provide coverage for Plaintiff's claims against Defendant's insured; and (2) the stipulated judgment of $500,000 obtained by Plaintiff against the insured is a valid Damron judgment that is not subject to challenge by Defendant through a reasonableness hearing. The remaining substantive issues are whether Defendant committed bad faith, and whether Defendant's actions or omissions warrant the imposition of punitive damages. Case 2:03-cv-02364-DGC Document 135 Filed 12/16/2005 Page 1 of 3 Golden Eagle Insurance Corporation; Does 1-100; XYZ Corporations 1-100; Black and White Business Entities 1-100, PARTIES' STIPULATED MOTION RE CASE MANAGEMENT No. CIV-03-2364-PHX-DGC

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 . . . . . . . . .

Defendant wishes to appeal the findings of this Court to the Ninth Circuit Court of Appeals. Plaintiff wishes to resolve the appellate issues as quickly as possible. To meet these objectives, both parties find it within their mutual interests to dismiss, without prejudice, Plaintiff's claims against Defendant for bad faith and for punitive damages. In exchange, Defendant is willing to waive any statute of limitations defenses to these claims. Plaintiff will retain the option to refile these claims after the resolution of Defendant's appeal, should it appear prudent to so at that time. Without waiving any rights, Plaintiff notifies the Court that it is highly unlikely that Plaintiff will exercise the option of refiling these claims. The parties agree that Plaintiff may then file for entry of judgment against Defendant and any appropriate motions, including amounts Plaintiff believes it is entitled to for attorney fees, interest, and other costs. Defendant will then have the right to file an objection or objections to Plaintiff's form of judgment and amounts sought in attorney fees, interest and other costs, in accordance with the federal rules of civil procedure and District of Arizona Local Rule 58.1. Accordingly, the parties jointly request the Court to dismiss Plaintiff's claims for bad faith and punitive damages against Golden Eagle without prejudice. The parties further request the Court to issue an order providing that Plaintiff shall file a form of judgment within 10 days from the date this motion is granted.

2 Case 2:03-cv-02364-DGC Document 135 Filed 12/16/2005 Page 2 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

RESPECTFULLY SUBMITTED this 16th day of December, 2005. JONES, SKELTON & HOCHULI, P.L.C.

By s/Neil Singh Donald L. Myles, Jr. Neil Singh 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendant BROENING OBERG WOODS WILSON & CASS By s/Michael J. Ryan Carrie Smith, Esq. Michael J. Ryan, Esq. 1630 South Stapley, Suite 210 Mesa, Arizona 85204 Attorneys for Plaintiff PARTIES' STIPULATED MOTION RE CASE MANAGEM ENT electronically filed/served this 16 th day of December, 2005, to: ALL PARTIES ON ELECTRONIC SERVICE LIST /s/: Mica Milano

18 19 20 21 22 23 24 25 26
1565777_1

3 Document 135 Filed 12/16/2005 Page 3 of 3

Case 2:03-cv-02364-DGC