McManus v. American States Insurance

201 F.R.D. 493, 2000 U.S. Dist. LEXIS 21492, 2000 WL 33363194
CourtDistrict Court, C.D. California
DecidedOctober 11, 2000
DocketNo. SA CV 00-712 DOC(ANX)
StatusPublished
Cited by2 cases

This text of 201 F.R.D. 493 (McManus v. American States Insurance) is published on Counsel Stack Legal Research, covering District Court, C.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McManus v. American States Insurance, 201 F.R.D. 493, 2000 U.S. Dist. LEXIS 21492, 2000 WL 33363194 (C.D. Cal. 2000).

Opinion

ORDER DENYING DEFENDANT’S MOTION TO SET ASIDE ENTRY OF DEFAULT

CARTER, District Judge.

Defendant American States Insurance Co. moves the Court to set aside the default entered against it on August 21, 2000 for failure to plead responsively within 20 days. Plaintiffs Wally McManus and Wally’s Fence & Iron, Inc. oppose the Motion. The Court deems this matter appropriate for decision [495]*495without oral argument. See Fed.R.Civ.P. 78; Local Rule 7.11. Accordingly, the hearing set for October 16, 2000 at 8:30 a.m. is hereby removed from the Court’s calendar. After consideration of the moving, opposing, and replying papers, the Court DENIES the Motion.

I.

BACKGROUND

Defendant American States Insurance Co. (“ASI”) issued an insurance policy to Plaintiffs Wally McManus and Wally’s Fence & Iron, Inc. The policy provided that ASI would defend Plaintiffs in any suits arising out of covered occurrences. In the fall of 1999, William J. Cavanaugh, an individual, sued McManus in the Superior Court of California for the County of Los Angeles in a case styled William J. Cavanaugh v. Walter McManus, No. VC030261 (“the Cavanaugh suit”). The complaint in the Cavanaugh suit, served on McManus on October 13, 1999, alleged breach of a partnership agreement between McManus and Cavanaugh and sought contribution and an accounting. It also alleged conversion of partnership property and assets, including advertising materials, and interference with prospective business advantage and contractual relations. The complaint was later amended to name Wally’s Fence & Iron as an additional defendant.1

On January 25, 2000, McManus and Wally’s Fence & Iron, Inc. (hereinafter collectively referred to as “McManus”) tendered defense of the Cavanaugh suit to ASI. Tender was made via a letter from counsel for McManus to ASI. On February 3, 2000, James E. Boles, a claims adjuster for ASI, wrote back, stating:

I have reviewed the complaint and determined that it will be necessary to conduct a coverage investigation. There are questions as to when was the the [sic] occurrence, what exact damages are being alleged, and other issues that must be resolved prior to us confirming coverage. With the information presented we are unable to confirm our [sic] deny coverage or defense in this matter at this time.

Compl., Ex. D.

On February 14, 2000, McManus’s counsel responded to this letter by sending ASI a letter and also some documents in Mc-Manus’s possession that McManus felt related to the Cavanaugh suit. Principally, the letter put forth McManus’s position that the Cavanaugh complaint itself made clear that the suit was covered by the policy and that McManus did not have much additional information or details about Cavanaugh’s claims. The letter stated that McManus was willing to respond to any specific questions from ASI, but was unwilling to make a recorded statement as requested by ASI. Five weeks later, on March 22, 2000, Boles responded to this letter on behalf of ASI, stating:

We have received your latest packet of information and continue to review it as it pertains to our coverage investigation. We are preparing a final determination on our coverage position and will notify you in the near future of our position.

Compl, Ex. F.

On March 23, 2000, McManus’s counsel again wrote to ASI. The letter asked when ASI would have a final position regarding coverage and pointed out that over 30 days had passed since ASI first responded to Mc-Manus’s tender of the Cavanaugh suit. The letter asked ASI to commence defense of McManus, either with or without a reservation of rights, and pointed out that the delay was causing prejudice to McManus. The letter also tendered defense of a cross-complaint in the Cavanaugh suit. After receiving no response from ASI to its March 23, 2000 letter, on April 24, 2000 McManus’s counsel once again wrote to ASI. In part, this letter stated:

It has now been some three months since the original tender [of the Cavanaugh suit] was made and I can discern no articuable [sic] reason why American States has not accepted its contractual responsibilities [496]*496by now. The insured has provided all of the documentation in its possession and further offered to answer any written questions concerning the underlying events....
Please advise of American States [sic] position within ten days of the date of this letter. Should American States refuse to accept the Defendant’s tender within said time frame, your insured will assume that American States has wrongfully denied coverage and your insured retains its rights to file all appropriate legal proceedings as necessary against American States including, but not limited to, an action for breach of the covenant of good faith and fair dealing....
Both American States’ insured and this office, would hate to see our relationship deteriorate. On the other hand, American States has now had three months in which to make a fairly simple decision. We can discern no reason for American States’ protracted delay.

Compl, Ex. H. ASI responded to this letter with a phone call the next day. Boles called McManus’s counsel and informed him that ASI would immediately assume defense of McManus in the Cavanaugh action and the cross-complaint under a reservation of rights. Boles said that ASI would issue a letter to this effect and appoint its own panel counsel within a week. However, ASI did not issue a letter and did not appoint counsel.

On May 11, 2000, McManus’s counsel wrote to ASI again. The letter pointed out that three weeks had passed since the April 25 phone call but no letter had been issued and no counsel had been appointed. The letter conveyed McManus’s growing frustration with ASI’s lack of response, stating in part:

I do not have a letter confirming or denying coverage. I do not have a reservation of rights letter. I do not have a letter from American States’ panel counsel asking to “associate in” on this case. I have nothing.
What American States will have is a bad faith lawsuit, sitting in its hands, if American States does not acknowledge its duty of defense and make immediate arrangements towards retiring its insured’s outstanding attorneys’ fees within one week.

Compl., Ex. I. ASI still did not issue a letter confirming coverage, pay any of the attorneys’ fees that had been incurred thus far, or appoint counsel.

On July 24, 2000, ten months after the onset of the Cavanaugh suit and six months after tendering defense of the suit to ASI, McManus sued ASI in this Court for breach of contract and breach of the implied covenant of good faith and fair dealing. The Complaint also seeks declaratory relief. Jurisdiction is premised on diversity of citizenship, as both Plaintiffs are California citizens and ASI is an Indiana corporation with its principal place of business in Seattle, Washington and Plaintiffs allege that the amount in controversy exceeds $75,000. On July 25, 2000, McManus served the summons and Complaint on Steve Small, a regional claims analyst for Safeco Insurance Company of America, which provides services including claims analysis and adjustment to ASI. Small had previously been employed by ASI for nine years.

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Bluebook (online)
201 F.R.D. 493, 2000 U.S. Dist. LEXIS 21492, 2000 WL 33363194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcmanus-v-american-states-insurance-cacd-2000.