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

Case 1:07-cv—00640-G|V|S—IV|PT Document 53 Filed 12/16/2005 Page1 of3
KK2/mmt/372357 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. )
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:
l. The supplemental authority cited by plaintiff, Hooters of Augusta, Inc. v.
American Global Insurance Company, No. 04-11077, 2005 U.S. dist. LEXIS 26765 (llth Cir.
Dec. 6, 2005) involves Georgia law rather than Illinois law.
2. The analytical approach employed by the llth Circuit in Hooters of Augusta was
rejected by the Seventh Circuit in American States Insurance Company v. Capital Associates of
Jackson County, 392 F.3d 939, 943 (7th Cir. 2004) and by the Honorable Judge Robert J.
Gettleman in St. Paul F ire and Marine Insurance Company v. Brunswick Cogporation and

Case 1:07-cv—00640-G|V|S—lV|PT Document 53 Filed 12/16/2005 Page 2 of 3
Brunswick Bowling & Billiards Corporation, Case No. 04 C 7751 (United States District Court
for the Northern District of Illinois, November 22, 2005).
3. The instant case also involves several critical defenses that are not addressed in
the Hooters of Augusta decision. For example, the insurers have asserted the following
additional defenses: (a) plaintiff has not asserted a viable cause of action, (b) the Prior
Publication Exclusion bars coverage, (c) the plaintiff has failed to meet its burden of proving that
an offense occurred during the relevant policy period, (d) plaintiffs are not entitled to coverage
for their donations to charity totaling roughly $1 million, and (e) the underlying settlement does
not arise out of an "occurrence".
WHEREFORE, Defendants GREAT NORTHERN INSURANCE COMPANY and
FEDERAL INSURANCE COMPANY, respectfully contend that the case styled Hooter of
Augusta, Inc. v. American Global Insurance Company, No. 04-11077, 2005 U.S. dist. LEXIS
26765 (1 lm Cir. Dec. 6, 2005) 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 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
2

Case 1:07-cv—00640-G|V|S—IV|PT Document 53 Filed 12/16/2005 Page 3 of 3
1<1<2/km/372366 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 December 16, 2005, 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 Gauntlett & Associates
Lisle, IL 60532 18400 Von Karman — Suite 300
Irvine, CA 92612
GREAT NORTHERN INSURANCE COMPANY
By: /s/ Kathy Karaboyas Malamis
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

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