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Zurich Ins. Co. v. Smart & Final

United States District Court for the Central District of California

March 4, 1998, Decided ; March 5, 1998, Filed; March 6, 1998, Entered

Case No. CV 97-6100-RC



This matter was heard before Magistrate Judge Rosalyn M. Chapman on March 4, 1998. The plaintiff/counterdefendant Zurich Insurance Company was represented by Craig D. Aronson, attorney-at-law.  [**2]  Defendants/counterclaimants Smart & Final, et. al., were represented by Dennett F. Kouri and Becky J. Belke, attorneys-at-law.


On October 31, 1997, plaintiff/counterdefendant Zurich Insurance Company filed a motion to dismiss defendant Smart & Final, Inc.'s and Smart & Final Stores Corporation's (collectively "Smart & Final") counterclaim for failure to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6). Essentially, Zurich argues that the counterclaim fails to state a claim upon which relief can be granted since there is no coverage or potential for coverage under the policy issued by it to Smart & Final applicable to an underlying state court legal action filed against Smart & Final by defendant Richard L. Michener ("Michener action"). Counterclaimant Smart & Final filed an opposition to the motion to dismiss the counterclaim on November 10, 1997. On November 17, 1997, Zurich filed a reply memorandum in which it acknowledges that since it has already filed  [*981]  an answer to the counterclaim, the motion to dismiss under Fed. R. Civ. P. 12(b)(6) may be "technically untimely" and instead should be treated as a motion for a judgment on [**3]  the pleadings under Fed. R. Civ. P. 12(c). Reply, at 18:7-19-15.

On November 17, 1997, defendant Smart & Final filed a motion for summary adjudication of its breach of contract claim based on Zurich's breach of the duty to defend, with supporting memorandum of points and authorities and declaration of Susan Miller. On November 24, 1997, plaintiff Zurich filed its opposition to the motion for summary adjudication, with supporting exhibits, and a statement of genuine issues in opposition. On December 1, 1997, Smart & Final filed its reply to the opposition to the motion for summary adjudication.

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996 F. Supp. 979 *; 1998 U.S. Dist. LEXIS 10679 **

ZURICH INSURANCE COMPANY, a Swiss corporation, Plaintiff, vs. SMART & FINAL INC., a Delaware corporation; SMART & FINAL STORES CORPORATION, a California corporation; DARRYL DINSON, an individual; FRANK SAID, an individual; RICHARD L. MICHENER, an individual; and LEXINGTON INSURANCE COMPANY, a Delaware corporation, Defendants. SMART & FINAL INC. and SMART & FINAL STORES CORPORATION, Counterclaimants, vs. ZURICH INSURANCE COMPANY, Counterdefendant.

Disposition:  [**1]  Counterdefendant Zurich Insurance Company's motion for judgment on the pleadings (counterclaim) under Fed. R. Civ. P. 12(c) DENIED. Counterclaimant Smart & Final Inc.'s and Smart & Final Stores Corporation's motion for summary adjudication of its breach of contract claim GRANTED as to Zurich Insurance Company's duty to defend.


Counterclaim, coverage, imprisonment, employment-related, ambiguous, conspicuous, termination, omissions, arrest, settlement, genuine, motel

Civil Procedure, Summary Judgment, Entitlement as Matter of Law, Genuine Disputes, Motions for Summary Judgment, General Overview, Legal Entitlement, Materiality of Facts, Supporting Materials, Discovery Materials, Trials, Judgment as Matter of Law, Burdens of Proof, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Pleading & Practice, Pleadings, Rule Application & Interpretation, Judgments, Pretrial Judgments, Judgment on Pleadings, Preliminary Considerations, Federal & State Interrelationships, Erie Doctrine, Insurance Law, Liability & Performance Standards, Good Faith & Fair Dealing, Duty to Defend, Commercial General Liability Insurance, Obligations of Parties, Business Insurance, Coverage, Triggers, Contracts Law, Defenses, Ambiguities & Mistakes, Policy Interpretation, Reasonable Expectations, Contract Interpretation, Intent, Claim, Contract & Practice Issues, Ambiguous Terms, Construction Against Insurers, Unambiguous Terms, Ordinary & Usual Meanings, Technical Constructions & Meanings, Ambiguities & Contra Proferentem, Coverage Favored, Contract Conditions & Provisions, Exclusions, Plain Language