Opinion
Case No.: 2:10-cv-00623-GMN-NJK Case No.: 2:10-cv-01298-GMN-NJK
03-11-2013
OLIN CORPORATION and PIONEER AMERICAS LLC d/b/a OLIN CHLOR ALKALI PRODUCTS, Plaintiffs, v. CONTINENTAL CASUALTY COMPANY, FACTORY MUTUAL INSURANCE COMPANY, ZURICH AMERICAN INSURANCE COMPANY, NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA, and ACE AMERICAN INSURANCE COMPANY, Defendants.
OLIN CORPORATION and PIONEER AMERICAS LLC By: Sara Tonnies Horton One of Their Attorneys Steve Morris, Bar No. 1543 Akke Levin, Bar No. 9102 MORRIS PETERSON and Craig C. Martin (admitted pro hac vice) Mathew J. Thomas (admitted pro hac vice) Sara Tonnies Horton (admitted pro hac vice) JENNER & BLOCK LLP Attorneys for Plaintiffs CONTINENTAL CASUALTY COMPANY, By: Megan E. Ritenour One of its Attorneys Peter E. Kanaris ( Pro Hac Vice ) David E. Heiss (Pro Hac Vice ) Megan E. Ritenour ( Pro Hac Vice ) Fisher Kanaris, P.C. Jonquil Urdaz
MORRIS PETERSON
Steve Morris, Bar No. 1543
Email: sm@morrislawgroup.com
Akke Levin, Bar No. 9102
Email: al@morrislawgroup.com
900 Bank of America Plaza
300 South Fourth Street
Las Vegas, Nevada 89101
Telephone: (702) 474-9400
Facsimile: (702) 474-9422
Attorneys for Plaintiffs
JOINT STIPULATION AND
ORDER REGARDING DISMISSAL OF
CERTAIN CLAIMS AND ENTRY OF
JUDGMENT CONSISTENT WITH JURY
VERDICT
WHEREAS, Olin Corporation and Pioneer Americas, LLC d/b/a Olin Chlor Alkali Products (collectively "Olin") filed one of the above-captioned lawsuits, Olin Corp. v. Continental Casualty Co. et al., Case No. 2:10-cv-00623 ("Olin's Action"), in which Olin asserted, among other things, claims against the Continental Casualty Company ("Continental") for:
i) Count I, Breach of Contract;Continental, among other things, raised an affirmative defense that Olin failed to cooperate under the terms of the Policy ("Affirmative Defense IV");
ii) Count II, Breach of the Duty of Good Faith and Fair Dealing
iii) Count III, Violation of Nevada Revised Statutes § 686A.310
iv) Count IV, Declaratory Judgment - Right to Recover Under Continental Casualty's Boiler and Machinery Policy ("Policy").
WHEREAS, Continental filed a lawsuit captioned Continental Casualty Co. v. Olin Corporation, which was initially filed in the United States District Court for the District of Missouri and transferred to this Court and assigned Case No. 2:10-cv-01298 ("Continental's Action"), in which Continental asserted, among other things, claims against Olin for:
i) Count I, Declaratory Judgment - Coverage;
ii) Count II, Declaratory Judgment - Cooperation Clause;
WHEREAS, on January 26, 2013, the parties entered into a confidential partial settlement agreement, pursuant to which they agreed, among other things, to dismiss with prejudice, pursuant to Fed. R. Civ. P. 41(a)(1)(A), Counts II and III and Affirmative Defense IV in Olin's Action, and Count II of Continental's Action.
WHEREAS, a jury trial was held on the remaining claims in these consolidated actions from January 29, 2013 to February 8, 2013, and the jury returned a verdict in favor of Olin, finding "the efficient proximate cause of the damage to the diaphragm cells was...A Covered Cause of Loss as defined in the Policy." See Dkt. 294; Dkt. 297; Dkt. 300;
WHEREAS, the amount of damages to which Olin is entitled is set forth in the Parties' confidential partial settlement agreement, as Olin prevailed at trial, and is above the amount required to confer diversity jurisdiction in this Court. Post-judgment interest shall accrue on the unpaid amount of damages set forth in the Parties' partial settlement agreement, beginning on the date that this Court enters judgment.
WHEREAS, all issues and claims are preserved for appeal and none are waived.
THEREFORE, pursuant to Fed. R. Civ. P. 54 and 58, the Parties respectfully request that the Court enter Final Judgment on the claims tried to the Jury, including Counts I and IV of Olin's Action and Count I of Continental's Action, as proposed in the attached Judgment.
Respectfully submitted,
OLIN CORPORATION and PIONEER
AMERICAS LLC
By: Sara Tonnies Horton
One of Their Attorneys
Steve Morris, Bar No. 1543
Akke Levin, Bar No. 9102
MORRIS PETERSON
and
Craig C. Martin (admitted pro hac vice)
Mathew J. Thomas (admitted pro hac vice)
Sara Tonnies Horton (admitted pro hac vice)
JENNER & BLOCK LLP
Attorneys for Plaintiffs
CONTINENTAL CASUALTY COMPANY,
By: Megan E. Ritenour
One of its Attorneys
Peter E. Kanaris (Pro Hac Vice)
David E. Heiss (Pro Hac Vice)
Megan E. Ritenour (Pro Hac Vice)
Fisher Kanaris, P.C.
Jonquil Urdaz MORRIS PETERSON
Steve Morris, Bar No. 1543
Email: sm@morrislawgroup.com
Akke Levin, Bar No. 9102
Email: al@morrislawgroup.com
900 Bank of America Plaza
300 South Fourth Street
Las Vegas, Nevada 89101
Telephone: (702) 474-9400
Facsimile: (702) 474-9422
Attorneys for Plaintiffs
OLIN CORPORATION and PIONEER AMERICAS LLC d/b/a OLIN CHLOR ALKALI PRODUCTS, Plaintiffs,
v.
CONTINENTAL CASUALTY COMPANY, FACTORY MUTUAL INSURANCE COMPANY,
ZURICH AMERICAN INSURANCE COMPANY, NATIONAL UNION FIRE INSURANCE COMPANY
OF PITTSBURGH, PENNSYLVANIA, and ACE AMERICAN INSURANCE COMPANY, Defendants.
Case No.: 2:10-cv-00623-GMN-NJK
Case No.: 2:10-cv-01298-GMN-NJK
FINAL JUDGMENT
With respect to the above-captioned consolidated actions, Olin Corp. v. Continental Casualty Co. et al., Case No. 2:10-cv-00623 ("Olin's Action"), and Continental Casualty Co. v. Olin Corporation, Case No. 2:10-cv-01298 ("Continental's Action"), this Court, having been advised of the parties' confidential partial settlement agreement, and having certain claims come before the Court and tried to a jury, hereby makes the following adjudications:
IT IS ORDERED AND ADJUDGED that, pursuant to Fed. R. Civ. P. 41(a)(1)(A) and the Parties' confidential partial settlement agreement, Counts II and III and Affirmative Defense IV in Olin's Action, and Count II of Continental's Action, are dismissed with prejudice, with each party to bear its own costs and fees in connection with those Counts.
IT IS FURTHER ORDERED AND ADJUDGED that, pursuant to Fed. R. Civ. P. 54 and 58 and consistent with the Jury's answer of the Special Verdict Form, see Dkt. Nos. 294, 297 and 300, Final Judgment is entered in favor of the Plaintiffs, Olin Corporation and Pioneer Americas d/b/a Olin Chlor Alkali Products, and against Defendant Continental Casualty Company, on all remaining claims in the consolidated actions, including Counts I and IV of Olin's Action and Count I of Continental's Action. Plaintiffs shall recover from the Defendant the amount to which the parties stipulated and agreed pursuant to their confidential partial settlement agreement dated January 26, 2013.
IT IS SO ORDERED this 11th day of March, 2013.
______________
Gloria M. Navarro
United States District Judge