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Anderson v. Everest Nat'l Insurance Co.

United States District Court, D. Arizona

November 26, 2013

James and Jane Anderson, et al., Plaintiffs,
v.
Everest National Insurance Company, et al., Defendants

For James Anderson, Jane Anderson, Plaintiffs: Edward David O'Brien, LEAD ATTORNEY, Gurstel Chargo PA, Scottsdale, AZ; John Edmond Chaix, Rodney Galarza, LEAD ATTORNEYS, Law Offices of John Chaix, Phoenix, AZ; Robert A Mandel, LEAD ATTORNEY, Taylor C Young, Mandel Young PLC, Phoenix, AZ.

For Richard Ayersman, Nicole Ayersman, Otho Behr, Deborah Behr, Frank Bruno, Phyllis Douglas, Rick Ewald, Nancy Ewald, Robert Hastings, Susan Hastings, David Gordon, Nicole Gordon, Mary Ann Graf, Padraic Hawly, Nisreen Hawly, Heather Hernandez, Steve Hernandez, Douglas Jaeger, Elizabeth King, Lonnie Lafferty, Vince Lansink, Sheila Lansink, Elissa Long, Andrew Mejia, Katrina Wallace, Paul Myers, Maryann Myers, William Osborn, Brad Roberts, Russell San Felice, Stephanie San Felice, Ray Sharp, Denise Sharp, Roger Sneed, Annette Sproul, Darren Sparks, Daniel Stainbrook, Jodi Stainbrook, Joseph Stratz, John Valentine, Lisa Valentine, Jacob Van Roekel, Nathan Welly, Nicole Welly, Mountain Gate Townhouse Community Association, an Arizona non-profit corporation, Plaintiffs: Edward David O'Brien, LEAD ATTORNEY, Gurstel Chargo PA, Scottsdale, AZ; Robert A Mandel, LEAD ATTORNEY, Taylor C Young, Mandel Young PLC, Phoenix, AZ.

For Everest National Insurance Company, a Delaware corporation, Defendant: Joshua D Rogers, LEAD ATTORNEY, Kunz Plitt Hyland & Demlong PC, Phoenix, AZ.

For Allied World National Assurance Company, a New Hampshire corporation, Defendant: Darrell S Dudzik, LEAD ATTORNEY, Hinshaw & Culbertson LLP, Phoenix, AZ.

For Chartis Specialty Insurance Company, an Illinois Corporation formerly known as American International Specialty Lines Insurance Company, Defendant: Amy Michelle Samberg, LEAD ATTORNEY, Snell & Wilmer LLP - Tucson, AZ, Tucson, AZ; Julie E Maurer, LEAD ATTORNEY, Snell & Wilmer LLP - Phoenix, AZ, Phoenix, AZ.

OPINION

Page 975

ORDER

James A. Teilborg, Senior United States District Judge.

Pending before the Court is Defendant Chartis Specialty Insurance Company f/k/a American International Specialty Lines Insurance Company's Motion to Dismiss

Page 976

Plaintiffs' Complaint (Doc. 24). The Court now rules on the motion.

I. Background

Plaintiffs filed this declaratory judgment action against Defendants, who are commercial insurers, to determine whether Defendants are obligated to indemnify their insureds against Plaintiffs' judgment for construction defects. (Doc. 1 at 5, 10).

Empire Residential Construction, LP and Empire Residential Sales, LLC (collectively, " Empire" ) constructed the Mountain Gate subdivision, in which Plaintiffs purchased homes, before filing a petition for bankruptcy in 2008. ( Id. at 4-5). Plaintiffs wished to sue Empire for construction defects in their homes and entered into a stipulation with the bankruptcy trustee that permitted Plaintiffs:

(i) to prosecute the Action in non-bankruptcy forum for the purpose of determining [Empire's] liability on the Action, (ii) to compromise and settle the amount of such liability with any insurance carrier(s) that has (have) insured [Empire] in respect to such Action, and (iii) to recover in respect to such liability (whether adjudicated or compromised) any amounts available under those insurance policies, if any.

(Doc. 1-1 at 9). An arbitrator awarded Plaintiffs $1,140,996.72 against Empire in damages. ( Id. at 51, 56). After obtaining judgments against Empire, ( id. at 2, 4), Plaintiffs filed this action seeking a declaration that Defendants are ...


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