Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case 1:07-cv—00640-G|V|S—lV|PT Document 58 Filed 03/13/2006 Paget of2
DJC/mmm/378773 2246-42-75-681
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NEW CENTURY MORTGAGE )
CORP., )
) Case No.: 05 C 2370
Plaintiff, )
) Judge Coar
v. )
)
GREAT NORTHERN INSURANCE )
COMPANY, FEDERAL INSURANCE )
COMPANY, )
)
Defendants. )
GREAT NORTHERN INSURANCE COMPANY’S AND FEDERAL INSURANCE COMPANY’S
RESPONSE TO PLAINTIFF’S MOTION TO FILE SUPPLEMENTAL AUTHORITY
NOW COME the Defendants, GREAT NORTHERN INSURANCE COMPANY ("Great
Northern") and FEDERAL INSURANCE COMPANY ("Federal") by and through their attorneys,
TRESSLER, SODERSTROM, MALONEY & PRIESS, and in Response to Plaintiffs Motion to File
Supplemental Authority In Opposition to Defendants’ Motion for Summary Judgment and in Support of
its Motion for Summary Judgment, state as follows:
1. The supplemental authority cited by plaintiff, Nutmeg Ins. Co. v. Employers Ins. of
Wausau, 2006 WL 453235 (N .D. Tex. 2006), involves Texas law rather than Illinois law.
2. The analytical approach employed by the trial court in Nutmeg was rejected by the
Seventh Circuit in American States Insurance Company v. Capital Associates of Jackson Coungg, 392
F.3d 939, 943 (7°h Cir. 2004) and by the Honorable Judge Robert J. Gettleman in St. Paul Fire and Marine
Insurance Company v. Brunswick Cogporation and Brunswick Bowling & Billiards Copporation, Case
No. 04 C 7751 (United States District Court for the Northem District of Illinois, November 22, 2005).
3. The Nutmeg case is distinguishable from the instant case in that it involved only an
alleged breach of the duty to defend, whereas the Plaintiff in the instant case has not alleged such a

Case 1:07-cv—00640-G|V|S—lV|PT Document 58 Filed 03/13/2006 Page 2 of 2
breach. As the duty to defend is governed by a different standard than the alleged duties at issue in the
instant case, the Nutmeg court’s analysis has no relevance to this case.
4. The instant case also involves several critical defenses that are not addressed in the
Nutmeg decision. For example, the insurers have asserted the following additional defenses: (a) plaintiff
has not asserted a viable cause of action, (b) the plaintiff has failed to meet its burden of proving that an
offense occurred during the relevant policy period, (c) plaintiffs are not entitled to coverage for their
donations to charity totaling roughly $1 million, and (d) the underlying settlement does not arise out of an
"occurrence".
5. Finally, Defendants note that the Nutmeg court’s analysis of the Prior Publication
Exclusion, even in the context of the duty to defend, is inconsistent with the Seventh Circuit’s treatment
ofthe exclusion. Taco Bell Corp. v. Continental Cas. C0., 388 F.3d 1069, 1073 (7th Cir. 2004)(explaining
that the prior publication exclusion would have barred coverage if the advertisement broadcast prior to the
policy period was identical to the advertisement broadcast during the policy period).
WHEREFORE, Defendants GREAT NORTHERN INSURANCE COMPANY and FEDERAL
INSURANCE COMPANY, respectfully contend that the case styled Nutmeg Ins. Co. v. Employers Ins.
of Wausau, 2006 WL 453235 (N .D. Tex. 2006) does not provide persuasive authority regarding
resolution of the motions currently pending before this Court.
GREAT NORTHERN INSURANCE
COMPANY AND FEDERAL INSURANCE
COMPANY
By: s/Daniel J Cunningham
One of Their Attomeys
Daniel J. Cunningham
Kathy Karaboyas Malamis
TRESSLER, SODERSTROM, MALONEY & PRIESS
Sears Tower, 22nd Floor
233 South Wacker Drive
Chicago, Illinois 60606-6399
(312) 627-4000
2

Case 1:O7—cv-00640-GIVIS-IVIPT Document 58-2 Filed 03/13/2006 Page 1 of 1
nic/mma/378793 2246-42-75-681
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NEW CENTURY MORTGAGE ) Case No.: 05 C 2370
CORP., )
) Judge: Coar
Plaintiff, )
)
v. )
)
GREAT NORTHERN INSURANCE )
COMPANY, FEDERAL )
INSURANCE COMPANY, )
)
Defendants. )
)
CERTIFICATE OF SERVICE
I hereby certify that on March 13, 2006, I electronically filed Defendants, Great Northern
Insurance Company’s and Federal Insurance Company’s Response to Plaintiffs Motion to File
Supplemental Authority with the Clerk of the Court using CM/ECF System which will send
notification of such filing(s) to the following:
Bart T. Murphy David A. Gauntlett
Wildman, Harrold, Allen & Dixon Eric R. Little
2300 Cabot Drive — Suite 455 Gaunt1ett& Associates
Lisle, IL 60532 18400 Von Karman — Suite 300
Irvine, CA 92612
GREAT NORTHERN INSURANCE COMPANY
By: /s/ Daniel J Cunningham
One of Its Attorneys
Daniel J. Cunningham
Kathy Karaboyas Malamis
TRESSLER, SODERSTROM, MALONEY & PRIESS
Sears Tower, 22nd Floor
233 South Wacker Drive
Chicago, Illinois 60606-6399
(312) 627-4000

Case 1:07-cv-00640-GMS-MPT

Document 58

Filed 03/13/2006

Page 1 of 2

Case 1:07-cv-00640-GMS-MPT

Document 58

Filed 03/13/2006

Page 2 of 2

Case 1:07-cv-00640-GMS-MPT

Document 58-2

Filed 03/13/2006

Page 1 of 1