IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
July 28, 2009
PHOTOMEDEX, INC., PLAINTIFF,
ST. PAUL FIRE & MARINE INS. CO., DEFENDANT.
The opinion of the court was delivered by: William H. Yohn Jr., Judge
AND NOW this 28th day of July 2009, upon consideration of defendant St. Paul's motion to dismiss and/or stay this action (Doc. No. 5), plaintiff PhotoMedex's motion for partial summary judgment (Doc. No. 7), defendant's request to transfer this action, and the parties' responses to the respective motions and requests,
IT IS HEREBY ORDERED that:
1. Defendant's motion to dismiss is DENIED.
2. Defendants motion to stay is GRANTED as to plaintiff's breach of contract claim contained in count II of the complaint and DENIED as to plaintiffs' request for a declaratory judgment.
3. Defendant's request to transfer venue is DENIED.
4. Plaintiff's motion for partial summary judgment is GRANTED and judgment is ENTERED in favor of PhotoMedex and against St. Paul to the extent that Pennsylvania substantive law controls the coverage disputes for the insurance policy.
It is HEREBY DECLARED that:
1. Pennsylvania law applies to the interpretation of the insurance policy issued by St. Paul to PhotoMedex bearing the policy number TE06401644.
2. Under Pennsylvania law, the insurance policy imposes a duty upon St. Paul to indemnify PhotoMedex for losses arising from malicious prosecution claims filed against PhotoMedex.
3. Pennsylvania law controls the attorney fees and costs that St. Paul must pay to PhotoMedex under the insurance policy for counsel PhotoMedex selects to it in malicious prosecution actions.
These declarations are without prejudice to the right of St. Paul to defend in the California action on the basis of the scope of the Settlement Agreement.
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