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Nova Cas. Co. v. Waserstein

United States District Court for the Southern District of Florida, Miami Division

March 24, 2006, Decided

CASE NO. 04-20755-CIV-JORDAN

Opinion

 [*1328] ORDER ON MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT

Nova Casualty Company moves for summary judgment on Count I of its second amended complaint for declaratory relief, and Richard Waserstein's and 1108 Concourse, L.C.'s ("1108") affirmative defenses.  [**2]  Mr. Waserstein and 1108 filed a cross-motion for summary judgment on Count I, and oppose Nova's motion for summary judgment only as to their affirmative defense of promissory estoppel. For the following reasons, Nova's motion for summary judgment [D.E. 78] is GRANTED IN PART. It is GRANTED as to Count I, and DENIED as to the affirmative defense of promissory estoppel. Mr. Waserstein's and 1108's cross-motion for summary judgment [D.E. 87] is DENIED.

Nova also moves for summary judgment on 1108's and Mr. Waserstein's affirmative defenses of failure to state a claim and lack of subject matter jurisdiction. 1108 and Mr. Waserstein do not oppose Nova's motion in this regard. Therefore, Nova's motion for summary judgment on the affirmative defenses of failure to state a claim and lack of subject-matter jurisdiction [D.E. 78] is GRANTED.

The only other count in Nova's complaint, Count II, seeks a declaration that it has no duty to indemnify Mr. Waserstein in connection with the battery claim in the underlying state court suit. Nova concedes that Count II is moot because the battery claim against Mr. Waserstein was dismissed in the underlying state court suit. See Nova's Motion [**3]  for Summary Judgment ("Sum. J. Mot.") at 2. I interpret this as a voluntary dismissal of Count II in Nova's second amended complaint, see Rule 41(a)(2), and thus, Count II is DISMISSED WITHOUT PREJUDICE.

I. FACTS

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424 F. Supp. 2d 1325 *; 2006 U.S. Dist. LEXIS 17743 **; 19 Fla. L. Weekly Fed. D 429

NOVA CASUALTY COMPANY, Plaintiff vs. RICHARD WASERSTEIN, et al., Defendants

Prior History: Nova Cas. Co. v. Waserstein, 2005 U.S. Dist. LEXIS 45882 (S.D. Fla., Sept. 1, 2005)

CORE TERMS

insurer, contaminants, coverage, summary judgment, pollutant, pollution exclusion, irritant, renovations, organisms, estoppel defense, complaints, microbial, estoppel, solid, chemicals, causes, duty to defend, no duty, DICTIONARY, bacteria, parties, ejusdem generis, plain language, indemnify, summary judgment motion, affirmative defense, insurance contract, underlying suit, cross-motion, ambiguous

Civil Procedure, Judgments, Summary Judgment, Evidentiary Considerations, Supporting Materials, General Overview, Entitlement as Matter of Law, Materiality of Facts, Evidentiary Considerations, Absence of Essential Element, Burdens of Proof, Nonmovant Persuasion & Proof, Federal & State Interrelationships, Choice of Law, Forum & Place, Insurance Law, Business Insurance, Commercial General Liability Insurance, Duty to Defend, Indemnification, Claim, Contract & Practice Issues, Policy Interpretation, Plain Language, Ambiguous Terms, Unambiguous Terms, Coverage Favored, Exclusions, Contracts Law, Contract Interpretation, Exclusions, Pollution, Business & Corporate Compliance, Contract Formation, Consideration, Promissory Estoppel, Estoppel & Waiver, Equitable Estoppel, Detrimental Reliance, Business & Corporate Law, Agency Relationships, Establishment