Court's ruling as a final judgment under Fed. R. Civ. P. 54(b). Defendants do not oppose this motion.
Rule 54(b) permits the Court to direct the entry of a final judgment as to one or more but fewer than all of the claims or parties in a lawsuit "upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." Fed. R. Civ. P. 54(b); Sears Roebuck & Co. v. Mackey, 351 U.S. 427, 435, 100 L. Ed. 1297, 76 S. Ct. 895 (1956).
To prevent piecemeal appeals, the Court may direct an entry of judgment pursuant to Rule 54(b) only when the claims upon which entry of judgment is entered are separable and distinct from the claims remaining in the lawsuit. Continental Airlines, Inc. v. Goodyear Tire and Rubber Co., 819 F.2d 1519, 1524 (9th Cir. 1987).
In this case, the issue being appealed, Continental's duty to defend Del Astra, is separable from the claims remaining in the lawsuit.
Under California law, the insurer's duty to defend its insured is distinct from and broader than the duty to indemnify. Gray v. Zurich, 65 Cal. 2d 263, 276-77, 54 Cal. Rptr. 104, 419 P.2d 168 (1966).
Moreover, there is no just reason to delay. To the contrary, judicial economy is served by immediate appeal of the Court's grant of partial summary judgment. An appellate court ruling that Continental has no duty to defend would significantly reduce the scope of issues for trial and would conserve judicial and party resources.
IT IS HEREBY ORDERED that the Court directs entry of judgment on its grant of partial summary judgment for Del Astra and certifies its decision for appeal pursuant to Fed. R. Civ. P. 54(b).
Dated: Jan. 25, 1993.
Stanley A. Weigel