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Giant Eagle, Inc. v. American Guarantee and Liability Insurance Co.

United States District Court, W.D. Pennsylvania

January 2, 2020

GIANT EAGLE, INC., ET AL., Plaintiffs,
v.
AMERICAN GUARANTEE AND LIABILITY INSURANCE COMPANY, ET AL., Defendants.

          MEMORANDUM ORDER

          Arthur J. Schwab United States District Court Judge

         Before the Court is Defendants' Joint Motion to Extend Time to File a Response to Plaintiffs' Motion for Partial Summary Judgment. ECF 79. Plaintiffs filed a Response to the instant Motion (ECF 82) and Defendants filed a Reply (ECF 83, as amended by ECF 84) making the matter ripe for adjudication. The Court will GRANT IN PART and DENY IN PART Defendants' Joint Motion to Extend Time for the reasons that follow.

         I. Factual and Procedural Background

         This is a declaratory judgment action. Plaintiffs seek a declaration that Defendants (who are insurance carriers) owe them: (1) a defense and (2) coverage with respect to several lawsuits filed in Ohio and New York (herein the “underlying lawsuits”). In these underlying lawsuits numerous individuals seek to recover damages for alleged bodily injuries they claim to have incurred as a result of Plaintiffs' alleged role(s) in the sales and distribution of prescription opioids. ECF 1. Plaintiffs herein claim that “[m]any of these [underlying] lawsuits are part of the largest multidistrict litigation in United States history.” Id. Plaintiffs seek the two declarations requested, because Defendants herein have either “denied coverage and refused outright to defend Giant Eagle” against the underlying claims (Defendant American Guarantee and Liability Insurance Company, hereinafter “Zurich”), or “simply ignore[ed] Giant Eagle's multiple requests for a defense[, ]” but eventually, “issued a reservation of rights without assuming a defense” (Defendant XL Specialty Insurance Company, hereinafter “XL”). Id.

         Both Defendants filed an Answer to Plaintiffs' declaratory judgment Complaint, and both also filed Third Party Complaints against Old Republic Insurance Company (“Old Republic”). ECF 36, ECF 39, ECF 41 and ECF 43. The Third Party Complaints filed by Defendants Zurich and XL allege that if Plaintiffs prevail on their claim and obtain a declaration that a defense and/ or indemnification is owed by Defendants with respect to one or more of the underlying opioid lawsuits, Zurich and XL seek various declarations concerning the interplay between and among Old Republic, Giant Eagle, and Zurich and XL, as well as equitable contribution, and contractual or equitable subrogation. Id.

         On October 22, 2019, an Amended Complaint was filed by Plaintiffs. ECF 46. Defendants, again, filed Answers with Counterclaims (ECF 47 and ECF 48) and Plaintiffs filed Answers to those Counterclaims. ECF 64 and ECF 65.

         Following these submissions, the Court held its initial case management conference on November 20, 2019. ECF 67. During the conference, Plaintiffs represented that they wished to file a dispositive motion on the duty to defend issue after the pleadings closed on December 9, 2019. ECF 78. Therefore, the Court continued its initial case management conference to February 5, 2020, but set a briefing schedule for any dispositive motion (such as a motion for partial judgment on the pleadings as was referenced by Plaintiffs' counsel during the November 20, 2019 conference). Id.

         Specifically, the Court ordered: (1) Plaintiffs to file any dispositive Motion on or before December 12, 2019; (2) Defendants to file a Response on or before January 10, 2020; and (3) Plaintiffs to file a Reply on January 24, 2020. Plaintiffs timely filed their dispositive Motion and Brief in Support of same on December 12, 2019, seeking a Partial Summary Judgment on the declaration that Defendants have a duty to defend Plaintiffs in the underlying opioid litigation. ECF 75 and ECF 76.

         On December 23, 2019, Defendants filed the instant Joint Motion for Extension of Time to File Response/Reply to Oppose Plaintiffs' Motion for Partial Summary Judgment essentially claiming that much additional discovery must be conducted prior to Defendants being able to argue against the Motion for Partial Summary Judgment. ECF 79 and ECF 80.

         Defendants in their Joint Motion specifically claim they need this additional discovery in order to argue that the underlying policies have not yet been exhausted. They further argue that in order to make their own determination as to whether the underlying policies have been exhausted, they must first determine whether payment of defense costs constitutes a “loss” as defined by the underlying insurance policies and whether each underlying lawsuit is a separate occurrence. ECF 80 and ECF 84. Defendants claim that they are entitled to discovery on matters concerning, inter alia, “loss” and “occurrence” before they allegedly can respond on January 10, 2020 to Plaintiffs' request for Partial Summary Judgment. Id.

         Plaintiffs' Response to the Motion to Extend Time essentially claims that Defendants failed to raise any facts that need to yet be discovered in order for this Court to make a ruling on the discreet duty to defend issue. ECF 82. Further, Plaintiffs contend that the one factual issue - whether payment of defense costs constitutes “loss” as defined by the insurance policies - is an issue that this Court can, and must, resolve without discovery. Id.

         II. Discussion

         This Court is satisfied that, under Pennsylvania law, an insurance carrier's duty to defend differs greatly from its duty to provide coverage, regardless of whether ...


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