JAYNES CORPORATION, a New Mexico Corporation doing business in Nevada, Plaintiff,
AMERICAN SAFETY INDEMNITY COMPANY, licensed to do business in the State of Nevada; NEVADA CONTRACTORS INSURANCE COMPANY, INC., licensed to do business in the State of Nevada; and DOES 1-10, inclusive, Defendants.
Pamela A. McKay (SBN 7812) McKAY LAW FIRM, Chtd. Attorneys for Appellant/Defendant AMERICAN SAFETY INDEMNITY COMPANY
NICHOLAS M. WIECZOREK (SBN 6170) MORRIS POLICH & PURDY LLP Attorneys for Appellee/Plaintiff JAYNES CORPORATION
STIPULATED MOTION TO STRIKE AND VACATE ORDER (DOC. # 57) PURSUANT TO CONDITIONAL SETTLEMENT BETWEEN JAYNES CORPORATION AND AMERICAN SAFETY INDEMNITY COMPANY
Defendant/Appellant AMERICAN SAFETY INDEMNITY COMPANY (ASIC), by and through its attorney of record, the McKay Law Firm, Chtd., and Plaintiff/Appellee JAYNES CORPORATION (Jaynes), by and through its attorney of record, Morris Polich & Purdy LLP, hereby submit a Stipulated Motion to Strike and Vacate the Order (Doc. #57) on the parties’ Cross-Motions for Summary Judgment (Doc. #29 and 38.)
I. PROCEDURAL BACKGROUND
On May 24, 2010, Jaynes filed a complaint against ASIC and Nevada Contractors Insurance Company (NCIC) in this court, wherein Jaynes sought declaratory relief and damages for an alleged breach of contract claim. (Doc. # 1.)
After being served with the summons and complaint, ASIC answered the complaint. (Doc. # 17.)
Jaynes alleged it qualifies as an additional insured to the commercial general liability policies ASIC issued to its named insured. The parties filed Cross-Motions for Summary Judgment regarding the issue of a duty to defend. (Doc. # 29 and 38.)
On December 26, 2012, the Court issued an Order granting Jaynes’ Motion, and denying ASIC’s Motion. (Doc. #57.)
Thereafter, Jaynes filed a second motion for summary judgment regarding the amount of damages. (Doc. # 59.) The Court denied the second motion. (Doc. # 77.)
On April 1, 2014, the Court conducted a bench trial, and thereafter issued a Bench Order. (Doc. # 135.) On April 28, 2014, the court entered a judgment pursuant to the Bench Order. (Doc. #136.)
On May 23, 2014, AISC filed a Notice of Appeal. (Doc. #145.) Pursuant to the 9thCircuit’s Mediation Program, the parties participated in a mediation wherein they conditionally resolved the dispute on appeal.
The proposed settlement is subject to the Court granting this stipulated Motion to Strike and Vacate the Order on the parties’ Cross-Motions for Summary Judgment (Doc. # 57), which forms part of the issues on appeal. If this stipulated Motion is not granted, the appeal will be reinstated.
On November 20, 2014, the parties filed a stipulated motion to voluntarily dismiss the appeal without prejudice subject to reinstatement. (Doc. #158.)
On November 26, 2014, the 9th Circuit Court of Appeals issued an Order and Mandate to Dismiss the Appeal without Prejudice subject to Reinstatement for the purpose of the parties filing a stipulated Motion to Strike and Vacate the Order (Doc. # 57) on the parties’ Cross-Motions for Summary Judgment in ...