1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 GOLDEN BEAR MANAGEMENT No. 2:22-cv-02097-JAM-SCR

CORPORATION AND DELTA

10 ADJUSTING COMPANY, 11 Plaintiff, COURT’S TENTATIVE ORDER

RECONSIDERING AND GRANTING

12 v. DEFENDANT’S MOTION FOR SUMMARY

JUDGMENT

13 CERTAIN UNDERWRITERS AT

LLOYD’S LONDON, SUBSCRIBING

14 TO POLICY No. 50006700119, 15 Defendant. 16 17 Following the pretrial conference in this case, the Court, 18 sua sponte, decided to reconsider its previous Order on the 19 parties’ cross-motions for summary judgment, ECF No. 63 20 (“Order”)filed by Golden Bear Management Corp. (“Plaintiff”) and 21 Certain Underwriters at Lloyd’s London (“Defendant”). See 22 Plaintiff’s Mot., ECF No. 43; Defendant’s Mot., ECF No. 48; 23 Plaintiff’s Reply and Opp’n, ECF No. 54; Defendant’s Reply, ECF 24 No. 61. The Court denied both cross-motions in their entirety. 25 Order. Upon further review of these cross-motions and for the 26 following reasons, the Court tentatively GRANTS Defendant’s 27 motion for summary judgment in its entirety. 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 The parties submitted a Joint Pretrial Statement in which 3 they stipulated to the following undisputed facts. See Joint 4 Pretrial Statement, ECF No. 64. Defendant issued a policy (“the 5 Policy”) to Plaintiff, effective December 31, 2019 to December 6 31, 2020. Id. at 3. The Reporting and Notice conditions stated, 7 “As a condition precedent to coverage, if during the Policy 8 Period, an Insured first becomes aware of circumstances from 9 which a Claim may be reasonably anticipated, and if the Insured 10 gives written notice of such circumstances . . . in no event 11 later than sixty (60) days after the end of the Policy Period, 12 then any Claim subsequently arising from such circumstances shall 13 be deemed to have been first made on the date written notice was 14 given to the Insurer.” Id. at 5. The Policy included a choice 15 of law clause that stated it was governed by the laws of New 16 York. Id. 17 Plaintiff agreed to bind, write, and administer insurance 18 policies for North American Capacity Insurance Company (“NAC”). 19 See id. Plaintiff underwrote a policy issued by NAC that covered 20 a bar and nightclub in Miami. Id. at 5-6. On May 25, 2019, one 21 of the bar’s dancers drove drunk and killed three minors. Id. at 22 6. 23 In its original Order, the Court found that there were 24 disputed material facts that “went to the core of each party’s 25 cross-motion.” Order at 2. Upon further review and reflection, 26 the Court now finds that there are two purely legal issues that 27 go to the core of this case and can be decided on summary 28 judgment. 1 II. OPINION 2 A. Legal Standard 3 A district court may reconsider its ruling on a motion for 4 summary judgment before final judgment is entered. United States 5 v. Desert Gold Mining Co., 433 F.2d 713, 715 (9th Cir. 1970). 6 The Ninth Circuit explained, “The law of the case doctrine . . . 7 was designed to further the ‘principle that in order to maintain 8 consistency during the course of a single lawsuit, 9 reconsideration of legal questions previously decided should be 10 avoided.’ While courts are generally urged to adhere to this 11 doctrine, it is ‘not an inexorable command.’ That is, the 12 doctrine ‘is discretionary, not mandatory’ and is in no way ‘a 13 limit on [a court’s] power.’” City of Los Angeles, Harbor Div. 14 v. Santa Monica Baykeeper, 254 F.3d 882, 888 (9th Cir. 2001) 15 (citations omitted). Indeed, “The doctrine simply does not 16 impinge upon a district court’s power to reconsider its own 17 interlocutory order provided that the district court has not been 18 divested of jurisdiction over the order.” Id. In a later case, 19 the Ninth Circuit reiterated, “Just as in Santa Monica Baykeeper, 20 the district court reconsidered its own order, over which its 21 jurisdiction had not yet been divested. Therefore, under the 22 authority of Santa Monica Baykeeper, the district court did not 23 violate the law of the case doctrine.” United States v. Smith, 24 389 F.3d 944, 949 (9th Cir. 2004). 25 “District courts in this circuit have applied Santa Monica 26 Baykeeper and Smith liberally in holding that a district court 27 has authority to review any order prior to final judgment or 28 appeal of the issue to be reviewed.” In re Northrop Grumman 1 Corp. ERISA Litig., No. CV0606213MMMJCX, 2010 WL 11469724, at *16 2 (C.D. Cal. Aug. 12, 2010) (collecting cases). “Reconsideration 3 is appropriate if the district court: (1) is presented with newly 4 discovered evidence, (2) committed clear error or the initial 5 decision was manifestly unjust, or (3) if there is an intervening 6 change in controlling law. Aside from these factors, a district 7 court also has inherent authority to reconsider an interlocutory 8 decision to prevent clear error or prevent manifest injustice.” 9 Gray v. Golden Gate Nat. Recreational Area, 866 F. Supp. 2d 1129, 10 1132 (N.D. Cal. 2011) (internal quotation marks and citations 11 omitted). 12 Moreover, Federal Rule of Civil Procedure 56(f) provides 13 that the Court may “consider summary judgment on its own after 14 identifying for the parties material facts that may not be 15 genuinely in dispute.” Fed. R. Civ. P. 56. The Supreme Court 16 explained that “district courts are widely acknowledged to 17 possess the power to enter summary judgments sua sponte, so long 18 as the losing party was on notice that she had to come forward 19 with all of her evidence.” Celotex Corp. v. Catrett, 477 U.S. 20 317, 326 (1986). Thus, “A district court may sua sponte grant 21 summary judgment when the losing party has had a full and fair 22 opportunity to ventilate the issues involved in the motion.” 23 Edson v. Valleycare Health Sys., 21 F. App’x 721, 722 (9th Cir. 24 2001) (internal quotation marks and citations omitted). 25 Applying these legal principles to the case at bar, this 26 Court concludes that it may reconsider, sua sponte, its order 27 denying summary judgment. Accord J2 Glob. Commc’ns, Inc. v. 28 Protus IP Sols., No. CV06-00566 DDPAJWX, 2010 WL 1609965, at *3 1 (C.D. Cal. Apr. 20, 2010). Upon reconsideration, the Court 2 determines that its prior order denying summary judgment was 3 clear error. There has not been an entry of final judgment, and 4 Plaintiff, the losing party here, “has had a full and fair 5 opportunity to ventilate the issues” involved in this Order by 6 briefing its motion for summary judgment and opposing Defendant’s 7 cross-motion. See Edson, 21 F. App’x at 722. While it is not 8 required, the Court will give the parties an opportunity to 9 submit supplemental briefs in response to this Tentative Order 10 before it becomes final. 11 Summary judgment is appropriate when the record, read in the 12 light most favorable to the non-moving party, indicates “that 13 there is no genuine dispute as to any material fact and the 14 movant is entitled to judgment as a matter of law.” Fed. R. Civ. 15 P. 56. 16 B. Reconsideration of Summary Judgment 17 1. Whether a Claim Was Made in the Policy Period 18 The Court first addresses whether Plaintiff made a claim 19 during the Policy period, which ran from December 31, 2019 to 20 December 31, 2020. The Policy is governed by New York law. 21 While Plaintiff argues that California law should apply because 22 the dispute concerns contractual performance, Defendant correctly 23 points out that the authorities upon which Plaintiff relies do 24 not support its position. See Plaintiff’s Mot. at 16 n.10; 25 Defendant’s Mot. at 24. When interpreting contracts under New 26 York law, “words should be given the meanings ordinarily ascribed 27 to them and absurd results should be avoided . . . the meaning of 28 particular language found in insurance policies should be 1 examined in light of the business purposes sought to be achieved 2 by the parties and the plain meaning of the words chosen by them 3 to effect those purposes.” Newmont Mines Ltd. v. Hanover Ins. 4 Co., 784 F.2d 127, 135 (2d Cir. 1986). By the plain meaning of 5 the contract provision at issue here, Plaintiff must show that it 6 first became aware of circumstances from which a claim may be 7 reasonably anticipated during the Policy period. 8 On December 23, 2020—during the Policy period—Plaintiff 9 provided Defendant a notice of potential claim arising from 10 allegations of bad faith, which stemmed from the incident in 11 Miami. See Joint Pretrial Statement at 6. Plaintiff states that 12 it did not reasonably anticipate a claim “at any time prior to” 13 December 23, 2020, because it “believed it handled” the claims 14 appropriately. See Plaintiff’s Reply at 14. But on August 5, 15 2019—sixteen months before Plaintiff provided notice and four 16 months before the Policy even started—Plaintiff received a letter 17 from the law firm representing the parents of a deceased minor 18 from the incident in Miami that demanded Plaintiff’s client 19 tender its policy limits within twenty-one (21) days, or the law 20 firm would file “a lawsuit for wrongful death against your 21 insured and pursuing all damages allowed under the law.” See 22 Letter, ECF No. 53-2 at ECF Header p. 44. Then, on August 21, 23 2019, Plaintiff received an email from the same law firm stating, 24 “Failing to tender your policy limits despite the overwhelming 25 evidence and public knowledge is clearly bad faith.” See Email, 26 ECF No. 53-1 at ECF Header p. 182. The email continued, “In 27 light of your denial of our policy limit demand you have forced 28 the [victim’s] family to file a lawsuit.” Id. Plaintiff does 1 not dispute these facts. See Plaintiff’s Response to Defendant’s 2 Statement of Undisputed Facts 157 and 158, ECF No. 55. 3 Defendant argues that these documents establish that 4 Plaintiff “first became aware of the bad faith allegations in 5 August 2019” and thus cannot make a claim under the Policy. See 6 Defendant’s Reply at 9. Plaintiff counters that it did not 7 reasonably anticipate a claim in August 2019 because it believed 8 it handled the claims properly. See Plaintiff’s Reply at 14. 9 But Plaintiff does not explain what new circumstances developed 10 by December 2020 that made it reasonably anticipate a claim. 11 Instead, Plaintiff broadly asserts that “it became apparent that 12 the plaintiffs would no longer accept NAC’s policy limits 13 because, they believed, those limits had been opened by NAC’s 14 (and thus by GBMC’s) failure to secure the settlement within the 15 policy limits.” See Plaintiff’s Statement of Undisputed Fact 36. 16 However, the evidence provided disproves Plaintiff’s 17 generalization and shows that circumstances remained largely 18 unchanged between August 2019 and December 2020. First, Robert 19 Squire, the defense attorney handling the Miami incident, sent 20 various letters to the attorneys representing the estates of the 21 deceased, offering their clients mediation and the policy limit 22 of $1 million. See Plaintiff’s Index of Evidence, Exh. 13, ECF 23 No. 47-2. Mr. Squire sent identical letters on December 3, 2020 24 and January 29, 2021 offering this settlement, which suggests 25 that he had not heard anything by January 29, 2021 that precluded 26 the possibility of settlement within the policy limits. See id. 27 Plaintiff points to no evidence supporting its assertion that, as 28 of December 2020, the attorneys representing the estates of the 1 deceased would no longer accept the policy limits. Second, 2 Plaintiff states that on December 23, 2020, it “still believed it 3 had handled the claims properly for NAC, but was putting Lloyd’s 4 on notice in an abundance of caution.” See Plaintiff’s Statement 5 of Undisputed Fact 38, ECF No. 45. Finally, on January 5, 2021, 6 Stacey Jackson, Defendant’s General Counsel, wrote, “The insured 7 has not made a claim against us nor has the insured threatened 8 litigation.” See Index of Evidence, Exh. 17. This evidence 9 demonstrates that, as of December 2020, Plaintiff had not become 10 aware of new circumstances that made it more likely to reasonably 11 anticipate a claim than based on the circumstances existing in 12 August 2019. On the contrary, the circumstances remained largely 13 unchanged between August 2019 and December 2020. 14 As such, there is no genuine dispute that Plaintiff did not 15 “first bec[ome] aware of circumstances from which a Claim may be 16 reasonably anticipated” during the Policy period. See Joint 17 Pretrial Statement at 5. If Plaintiff claims that it reasonably 18 anticipated a claim in December 2020, then the August 2019 19 documents show that Plaintiff did not first become aware of those 20 circumstances in December 2020 because Plaintiff was aware of the 21 same circumstances in August 2019 as in December 2020. 22 Alternatively, if as Plaintiff claims, in December 2020 it 23 believed that it handled the claims properly, then it did not 24 reasonably anticipate a claim during the Policy period. In 25 either event, there is no evidence to support Plaintiff’s 26 position that it first became aware of circumstances from which a 27 claim may be reasonably anticipated during the Policy period. 28 This, of course, is “fatal to [the] claim.” See Nat’l Union Fire 1 Ins. Co. v. Talcott, 931 F.2d 166, 168 (1st Cir. 1991). 2 2. Whether Plaintiff Can Obtain Relief Beyond the 3 Policy Limits 4 Separately, the Court considers whether Plaintiff can 5 obtain relief beyond the Policy limits. In the operative 6 complaint, Plaintiff brings a single count for declaratory 7 judgement, asking the Court to indemnify Plaintiff for the 8 amount it agreed to pay NAC “up to the limits of liability of 9 the Policy.” Second Amended Complaint ¶ 49, ECF No. 14. The 10 parties agree that the Policy limits caps liability at $3 11 million. See Joint Pretrial Statement at 18. 12 In its motion for summary judgment, Plaintiff requests—for 13 the first time—that the Court provide it relief for $4.5 14 million, the amount it paid NAC. See Plaintiff’s Mot. at 24-25. 15 Plaintiff argues that Defendant is liable beyond the Policy 16 limits because Defendant breached its duty to settle and thus 17 the implied covenant of good faith and fair dealing. See id. 18 But Plaintiff does not bring a claim for breach of contract or 19 breach of the implied covenant. Instead, its sole claim is for 20 declaratory judgment, and there is no mention in the complaint 21 of any other cause of action. 22 Plaintiff argues it will recover the $4.5 million “[o]ne 23 way or another,” so the Court should provide the sought relief 24 now. See Plaintiff’s Reply at 21. To support its argument, 25 Plaintiff cites 28 U.S.C. Section 2202, which states, “Further 26 necessary or proper relief based on a declaratory judgment or 27 decree may be granted, after reasonable notice and hearing, 28 against any adverse party whose rights have been determined by eee ee IRI IE EI OS IE IED Re

1 such judgment.” 28 U.S.C. § 2202. The only Ninth Circuit case 2 Plaintiff cites does not support its position because it states 3 that Section 2202 “permits additional hearings after a court 4 grants declaratory relief.” Nautilus Ins. Co. v. Access Med., 5 | LLC, No. 17-16265, 2021 WL 3485911, at *2 (9th Cir. Aug. 9, 6 | 2021) (emphasis added). As Defendant points out, “it would be 7 utterly improper to enter any damages order or judgment” at this 8 time because no declaratory relief has been granted in this 9 case. See Defendant’s Reply at 13. If Plaintiff eventually 10 obtains default judgment, then it may bring a motion pursuant to 11 Section 2202. Until then, the operative complaint is clear that 12 it can only obtain relief up to the Policy limits. 13 Til. ORDER 14 For the reasons set forth above, the Court tentatively 15 GRANTS Defendant’s motion for summary judgment. The parties may 16 submit supplemental briefs in response to this Tentative Order. 17 Plaintiff shall file its opening brief within five (5) days of 18 this Tentative Order. Defendant shall file its response to 19 Plaintiff’s brief within five (5) days thereafter. Plaintiff 20 shall file its reply to Defendant’s brief within five (5) days 21 thereafter. Each brief shall not exceed ten (10) pages. 22 IT IS SO ORDERED. 23 Dated: February 10, 2025 24 cp,

JOHN A. MENDEZ

26 SENIOR UNITED*STATES DISTRICT JUDGE 27 28 10