National Union Fire Ins. Co. of Pitt. v. Beta Constr

Full title: NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA and COMMERCE AND…

Court: United States District Court, M.D. Florida, Tampa Division

Date published: Aug 16, 2011

CASE NO: 8:10-cv-1541-T-26TBM (M.D. Fla. Aug. 16, 2011)

Opinion

CASE NO: 8:10-cv-1541-T-26TBM.

August 16, 2011

ORDER

RICHARD LAZZARA, District Judge

Upon due consideration of Defendant Robert C. Pate's Motion to Dismiss or Continue Plaintiffs' Motion for Summary Judgment (Dkt. 54), Defendant Finest Drywall, Inc.'s Motion to Strike Plaintiffs' Motion for Summary Judgment (Dkt. 55), and Plaintiffs' Response (Dkt. 58), the Court finds that the motions should be denied. First, the Defendants did not begin to seek discovery until nine months after the case management and scheduling order had been entered, ¹ and tellingly, one week after Plaintiffs' Motion for Summary Judgment and supporting attachments² had been filed.³ Second, Plaintiffs took the position in the case management and scheduling report that no discovery is necessary in this case, and opposed any discovery, because in this insurance coverage action, "an insurer's duty to defend is determined solely by the Court's comparison of the insurance policies and the allegations in the underlying complaints."⁴ This position, however, did not deny Defendants the opportunity to conduct discovery before Plaintiffs filed their motion for summary judgment. Defendants could have sought to propound discovery or sought to contest Plaintiffs' objections to discovery soon after the parties conferred as required by Rule 26(f), ⁵ which occurred on September 27, 2010, some nine months before the motion for summary judgment was filed.

1 See docket 33, filed October 6, 2010.

2 See docket 47, filed on July 15, 2011. The motion for summary judgment was filed one year after the filing of this action on July 13, 2010. See docket 1, the complaint.

3 See docket 59, motion for protective order citing July 23, 2011 as first date of propounded discovery on page 1.

4 See docket 32, at ¶¶ 2 6.

5 See Fed.R.Civ.P . 26(d)(1) ("A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f)[.]").

Finally, Defendants have failed to show that additional discovery would allow them to rebut Plaintiffs' motion on the issue of choice of law. See Mawulawde v. Board of Regents of the Univ. Sys. of Ga., 2007 WL 2460774, *5 (S.D. Ga. Aug. 24, 2007) (citing Barfield v. Brierton, 883 F.2d 923, 931 (11^th Cir. 1989)). Defendant Pate agrees with Plaintiffs that the Florida Supreme Court "unequivocally reiterated that lex loci contractus is the controlling choice of law doctrine in contract (including insurance policy) cases."⁶ See State Farm Mut. Auto. Ins. Co. v. Roach, 945 So.2d 1160, 1163-64 (Fla. 2006). The lex loci contractus doctrine states that a contract "is governed by the law of the state in which the contract is made, i.e., where the last act necessary to complete the contract is done."Fioretti v. Massachusetts Gen. Life Ins. Co., 53 F.3d 1228, 1235 (11^th Cir. 1995). Applying this test, Defendants have not shown this Court that discovery on the choice-of-law issue would rebut Plaintiff's position on that issue.

6 See docket 53, page 8 (Pate's Memorandum in Opposition).

It is therefore ORDERED AND ADJUDGED as follows:

(1) Defendant Robert C. Pate's Motion to Dismiss or Continue Plaintiffs' Motion for Summary Judgment (Dkt. 54) is DENIED.

(2) Defendant Finest Drywall, Inc.'s Motion to Strike Plaintiffs' Motion for Summary Judgment (Dkt. 55) is DENIED.

(3) Defendants are directed to file their respective responses to Plaintiffs' Motion for Summary Judgment (Dkt. 47) on or before August 31, 2011.

DONE AND ORDERED at Tampa, Florida.