Wood v. Nautilus Insurance Company

Opinion

TRACY A. DIFILLIPPO, ESQ. Nevada Bar No. 7676 ARMSTRONG TEASDALE LLP 7160 Rafael Rivera Way, Suite 320 Las Vegas, Nevada 89113 Telephone: 702.678.5070 Facsimile: 702.878.9995 tdifillippo@atllp.com malarie@atllp.com WILLIAM S. KRONENBERG, ESQ. (LR IA 11-2 admitted) California Bar No. 133730 KRONENBERG LAW PC 1 Kaiser Plaza, Suite 1675 Oakland, California 94612 Telephone: 510.254.6761 wkronenberg@krolaw.com Attorneys for Defendant/Counter-claimant Nautilus Insurance Company UNITED STATES DISTRICT COURT DISTRICT OF NEVADA ROBERT “SONNY” WOOD, an individual; ACCESS MEDICAL, LLC, a Delaware limited Case No.: 2:17-cv-02393-MMD-VCF liability company, STIPULATION FOR APPROVAL OF Plaintiffs, BOND AND STAY OF EXECUTION vs. PENDING APPEAL; [PROPOSED] NAUTILUS INSURANCE GROUP, a Delaware limited liability company, et al., Defendant. Counter-claimant, vs. ROBERT “SONNY” WOOD; ACCESS MEDICAL, LLC; FLOURNOY MANAGEMENT, LLC AND ROES 1-10, inclusive, Counter-defendants. Plaintiffs/Counter-defendants Access Medical, LLC and Robert Wood (“Plaintiffs”) and Defendant/Counter-claimant Nautilus Insurance Company (“Nautilus”), by and through their counsel, Jordan P. Schnitzer of The Schnitzer Law Firm (for Plaintiffs) and Armstrong Teasdale LLP and William S. Kronenberg, Esq. of Kronenberg Law PC (pro hac vice) (for Nautilus), file this Stipulation for Approval of Bond and Stay of Execution Pending Appeal, pursuant to Federal Rule of Civil Procedure 62(b), with respect to the December 18, 2023 Bench Order (Dkt. 431) and December 19, 2023 Judgment (Dkt. 432). WHEREAS, Plaintiffs commenced this lawsuit against Nautilus, alleging Declaratory Relief, Breach of Contract, Breach of the Covenant of Good Faith and Fair Dealing, Promissory Estoppel, and Unfair Claims Practices (Dkt. 1-1); WHEREAS, on December 18, 2023, this Court issued its Bench Order, and on December 19, 2023, this Court entered a Judgment that found, in part, for Plaintiffs with respect to certain expert fees and independent counsel fees (Dkts. 431 and 432); WHEREAS, the Court awarded Plaintiffs a total of $365,387.97, including prejudgment interest (Dkt. 431 at 54:10); WHEREAS, Plaintiffs have also submitted a Bill of Costs for $47,354.90 (Dkt. 433), to which Nautilus has objected (Dkt. 437) and responded (Dkt. 438), but, to date, there has been no ruling by the Court on the Bill of Costs; WHEREAS, Plaintiffs filed a Notice of Appeal on January 12, 2024 (Dkt. 435), and Nautilus filed a Notice of Cross-Appeal on January 25, 2024 (Dkt. 444); WHEREAS, Nautilus seeks to stay execution of the Judgment pending its appeal and has met and conferred with Plaintiffs’ counsel regarding same; WHEREAS, Plaintiffs, and their counsel who have attorneys’ liens, previously agreed to forebear on execution of the Judgment until February 1, 2024 and, to the extent they have authority to do so, Plaintiffs have now agreed to forebear on execution of the Judgment pending the Order on the Stipulation1; WHEREAS, Federal Rule of Civil Procedure 62(b) provides: “At any time after judgment is entered, a party may obtain a stay by providing a bond or other security. The stay takes effect when the court approves the bond or other security and remains in effect for the time specified in the bond or other security.” WHEREAS, “The movant is entitled to the stay if it complies with the bond requirement under Rule 62(d) [now 62(b)].” Branch Banking & Tr. Co. v. Jarrett, No. 3:13-CV-00235-RCJ, 2014 WL 4636049, at *3 (D. Nev. Sept. 16, 2014) (citing Bass v. First Pac. Networks, Inc., 219 F.3d 1052, 1055 (9th Cir. 2000)); see also Am. Mfrs. Mut. Ins. Co. v. Am. Broad.-Paramount Theatres, Inc., 87 S. Ct. 1, 3 (1966) (“[A] party taking an appeal from the District Court is entitled to a stay of a money judgment as a matter of right if he posts a bond in accordance with” Rule 62); WHEREAS, in the District Court of Nevada, “[t]he bond amount ordinarily includes the full judgment total, costs on the appeal, interest, and any damages for delay.” Branch Banking and Tr. Co., 2014 WL 4636049, at *3; WHEREAS, the Parties have previously agreed to a bond amount of $445,000, comprised of (1)the $365,387.97 judgment (including prejudgment interest); (2) claimed costs of $47,354.90;2 and (3) estimated post-judgment interest of $31,045.95; and WHEREAS, Nautilus has arranged to have this bond issued by Berkley Insurance Company (located at 475 Steamboat Rd., Greenwich, Connecticut 06830), an A+ rated company with A.M. Best, pending approval from the Court as to the bond amount. NOW, THEREFORE, it is hereby stipulated and agreed as follows: 1. That Nautilus will bond the amount of $445,000. 2. That such bond shall be provided within 30 days of the date of the Order on this Stipulation. 3. That Nautilus shall file notice that the bond has been provided within 35 days of the attorneys’ liens but indicated Switzer is on notice of attorneys’ liens and deferred resolution of any disputes with Switzer concerning attorneys’ liens. 2 While Nautilus has included Plaintiffs’ claimed costs in its proposed bond amount in an abundance date of this Order. 4. That, to the extent they have authority to do so, Plaintiffs’ counsel agrees that execution on the Judgment should be stayed pursuant to Federal Rule of Civil Procedure 62(b). 5. That, if notice is not provided as set forth in Paragraph 3 of this Order, Nautilus shall show cause why the stay on execution of the Judgment shall not be lifted. DATED this 30th day of January 2024. ARMSTRONG TEASDALE LLP By: /s/ Tracy A. DiFillippo TRACY A. DIFILLIPPO, ESQ. Nevada Bar No. 7676 7160 Rafael Rivera Way, Suite 320 Las Vegas, Nevada 89113 WILLIAM S. KRONENBERG, ESQ. (LR IA 11-2 admitted) California Bar No. 133730 1 Kaiser Plaza, Suite 1675 Oakland, California 94612 Attorneys for Defendant/Counter-claimant Nautilus Insurance Company DATED this 30th day of January 2024. THE SCHNITZER LAW FIRM By: /s/ Jordan P. Schnitzer JORDAN P. SCHNITZER, ESQ. THE SCHNITZER LAW FIRM Nevada Bar No. 10744 710 S. 9th Street, Suite 2 Las Vegas, Nevada 89101 Attorneys for Plaintiffs/Counter-defendants Access Medical, LLC and Robert Wood IT IS ORDERED that: 1. Nautilus will bond the amount of $445,000. 2. Such bond shall be provided within 30 days of the date of the Order on this 3. Nautilus shall file notice that the bond has been provided within 35 days of the date of this Order. 4. Execution on the Judgment is hereby stayed pursuant to Federal Rule of Civil Procedure 62(b). 5. If notice is not provided as set forth in Paragraph 3 of this Order, Nautilus shall show cause why the stay on execution of the Judgment shall not be lifted. || DATED: January 30 , 2024 é | Ot Hon. Chief Judge Miranda M. Du United States District Judge for the District of Nevada

Pursuant to Fed.R.Civ.P.5(b) and Section IV of District of Nevada Electronic Filing Procedures, I certify that I am an employee of ARMSTRONG TEASDALE LLP, and that the foregoing document was served through the CM/ECF to all parties on the service list. Date: January 30, 2023 /s/ Christie Rehfeld An employee of Armstrong Teasdale LLP DM1\14961033