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Nupro Industries Corp. v. Lexington Insurance Co.

June 21, 2010

NUPRO INDUSTRIES CORPORATION PLAINTIFF
v.
LEXINGTON INSURANCE COMPANY DEFENDANT



The opinion of the court was delivered by: L. Felipe Restrepo United States Magistrate Judge

MEMORANDUM AND ORDER

AND NOW, this 21st day of June, 2010, having considered Plaintiff's Motion to Strike Affirmative Defenses of Defendant (Docket No. 85, hereinafter "Pl. Br.") and Defendant's Response in Opposition thereto (Docket No. 88, hereinafter "Def. Br."), it is hereby

ORDERED that Plaintiff's Motion shall be GRANTED in part and DENIED in part.

Defendant asserted twenty-one Affirmative Defenses in its January 8, 2010 Answer to Plaintiff's Amended Complaint (Docket No. 76). Plaintiff moved to strike ten of these asserted Affirmative Defenses and to dismiss two others as a matter of law. The Defenses that Plaintiff seeks to strike or dismiss are:

(1) "The Complaint fails to state a claim upon which relief can be granted."

(4) "Lexington continuously and specifically reserved all of its rights under the insurance policy in writing [to Nupro]."

(6) "Nupro has failed to mitigate its damages."

(7) "Nupro has failed to state a claim payable under the Policy."

(8) "... Nupro failed to comply with the Policy's terms and conditions requiring cooperation and failed or refused to cooperate with Lexington's legitimate requests for material information necessary to evaluate the claim."

(9) "Nupro failed and refused to submit its Business Interruption Claim, despite numerous and repeated requests for it, until after the two-year contractual limitations period had expired and after it filed suit."

(11) "[...] Nupro failed to comply with all conditions precedent under the policy before it filed suit. Lexington offered to toll the suit limitation period in the Policy, but Nupro choose (sic) to reject that offer and instead file suit."

(13) "Nupro's failure to comply with the Policy's terms and conditions caused substantial prejudice to Lexington."

(14) "Nupro's claims are excluded or limited by certain terms, exclusions, conditions and/or ...


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