M&C Holdings Delaware Partnership v. Great American Insurance Company

• Court: District Court, S.D. Ohio
• Decided: February 18, 2022
• Docket: 1:20-cv-00121
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION M&C HOLDINGS DELAWARE Case No. 1:20-cv-00121-SJD-KLL PARTNERSHIP, et al., Judge Susan J. Dlott Plaintiffs, Magistrate Judge Karen L. Litkovitz Vv. STIPULATION FOR UNCONDITIONAL GREAT AMERICAN INSURANCE DISMISSAL OF ALL REMAINING COMPANY, CLAIMS, ORDER AND FINAL JUDGMENT Defendant.

Plaintiffs, M&C HOLDINGS DELAWARE PARTNERSHIP, M&C HOTEL INTERESTS, INC., M&C MANAGEMENT SERVICES (USA), INC., CDL HOTELS (USA), INC. and RHM-88, LLC (collectively, “Plaintiffs”), by and through their counsel, Fox, Swibel, Levin & Carroll, LLP and The Law Office of Bryce A. Lenox, Esq. LLC, and the Defendant Great American Insurance Company (“Defendant”), by and through its counsel, The Dratch Law Firm, P.C. and Flagel & Papakirk LLC, hereby stipulate to entry of Final Judgment in favor of the Plaintiffs as follows: WHEREAS, on February 8, 2021, the Court granted Plaintiffs’ motion for partial summary judgment on the issue of liability as to Count I (Breach of Contract) and Count III (Declaratory Judgment) of Plaintiffs’ Complaint against Defendant with respect to a certain crime protection insurance policy (the “Policy”) that is the subject of this action [Dkt. 48 (“MSJ Order”)|; WHEREAS, the parties have informed the Court that they have stipulated to entry of judgment in favor of Plaintiffs in the amount of $1,704,359.00 in connection with Count I (Breach of Contract);

WHEREAS, the February 8, 2021 order observed that issues of fact remained as to Count II (Bad Faith Denial of Coverage) of Plaintiffs’ Complaint and Defendant’s affirmative defenses based on a two-year contractual limitations clause contained in the Policy; WHEREAS, pursuant to a scttlement agreement, Plaintiffs have finally and forever released and/or waived Count II of their Complaint; WHEREAS, pursuant to a settlement agreement, Defendant has finally and forever released and/or waived its affirmative defenses based upon the two-year contractual limitations clause contained in the Policy and any other defenses unrelated to the issue of coverage; specifically Defendants’ First, Fourth, Fifth, Eighth, Ninth, Tenth and Eleventh Affirmative Defenses; WHEREAS, the Parties agree, and the Court finds, that the above-referenced stipulations, releases and/or waivers have climinated all issucs of fact and law remaining before this Court; WHEREAS, Great American continues to unequivocally reserve its right to appeal the MSJ Order, but consents to the form of this judgment for the purpose of accclcrating appellate review of such MSJ Order, which has effectively resolved all remaining issues in this litigation. See Raceway Props., Inc. v. Emprise Corp., 613 F.2d 656, 657 (6th Cir. 1980) and Innovation Ventures, LLC v. Custom Nutrition Laboratories, LLC, 912 F.3d 316 (6th Cir. 2018); WHEREAS, the Court has been further informed that, as part of their settlement, Plaintiffs and Defendant have agreed that Count II (Bad Faith Denial of Coverage) of the Complaint shall be dismissed with prejudice and that Defendant’s affirmative defenses that implicate the two-ycar contractual limitation clause and/or do not implicate the Court’s grant of partial summary judgment in favor of Plaintiffs (First, Fourth, Fifth, Eighth, Ninth, Tenth and Eleventh Affirmative Defenses) shall be dismissed with prejudice, and both Plaintiffs and Defendant further agree that these claims

or issues will not be reinstated or presented for adjudication in the instant action (whether following an appellate court’s remand or mandate, or otherwise); WHEREAS, if the MSJ Order is affirmed, there will be no dispute on the issue of damages on Counts | and III in light of the parties’ settlement agreement; WHEREAS, the Court has determined that, in light of the dismissals as set forth in the immediately preceding paragraphs, there are no further issues to be adjudicated and final judgment should be entered, in order to vest the Sixth Circuit Court of Appeals with appellate jurisdiction to review the MSJ Order establishing liability against Great American on Count I and Count III of the Complaint. NOW THEREFORE, IT IS HEREBY ORDERED, ADJUDICATED, AND DECREED AS FOLLOWS: l. Judgment is hereby entered in favor of the Plaintiffs and against Defendant in the amount of $1,704,359.00 in connection with Count I and Count III of Plaintiffs’ Complaint; 2. Count Il (Bad Faith Denial of Coverage) of Plaintiffs’ Complaint is hereby dismissed with prejudice; 3 Defendants’ First, Fourth, Fifth, Eighth, Ninth, Tenth and Eleventh Affirmative Defenses are hereby dismissed with prejudice; and 4, Each party shall bear its ownosts. ALA $s Meets ) Susan J, Dlott, U.SID.J. Agreed and So Stipulated: /s/_ Daniel A. Dorfman /s/_ James Papakirk = Attorney for Plaintiffs Attorney for Defendant Daniel A. Dorfman (admitted pro hac vice) James Papakirk (0063862) David J. Ogles (admitted pro hac vice) Hallie S. Borellis (0076510)

FOX SWIBEL LEVIN & CARROLL LLP Flagel & Papakirk LLC 200 W. Madison Street, Suite 3000 50 E-Business Way, Suite 410 Chicago, IL 60606 Cincinnati, OH 45241 ddorfman@foxswibel.com Phone: 513-984-8111 dogles@foxswibel.com Fax: 513-984-8118 jpapakirk@fp-legal.com Bryce A. Lenox hborellis@fp-legal.com THE LAW OFFICE OF BRYCE A. LENOX, ESQ. LLC and 3825 Edwards Road, Suite 103 Cincinnati, OH 45209 Stephen N. Dratch (admitted pro hac vice) bryce@brycelenoxlaw.com Daniel Lebersfeld (admitted pro hac vice) The Dratch Law Firm, P.C. Counsel for Millennium Plaintiffs 354 Eisenhower Pkwy. Livingston, NJ 07039 Phone: 973-992-3700 Fax: 973-994-0139 sdratch@njcounsel.com dlebersfeld@gmail.com Counsel for Defendant Great American Insurance Company