The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
SCHEDULING CONFERENCE ORDER Discovery Cut-Off: 7/15/09 Non-Dispositive Motion Filing Deadline: 7/30/09 Dispositive Motion Filing Deadline: 8/14/09 Settlement Conference Date: 7/22/09 10:00 Ctrm. 9 Pre-Trial Conference Date: 10/26/09 11:00 Ctrm. Trial Date: 12/8/09 9:00 Ctrm. 3 (CT-4 days)
Date of Scheduling Conference. September 11, 2008.
1. Plaintiff, Unigard Insurance Company, brings this property damage subrogation suit to recover the $45,371.69 in damages they paid their insured, Producers Dairy. The complaint is based solely on negligence.
2. The United States denies all material allegations of the Complaint and has asserted affirmative defenses based on lack of proximate cause, limitation of damages, apportionment of damages, the accident was caused by the negligence of Plaintiff's insureds, failure to mitigate, limitation of claims to those set forth in administrative claim, no right to jury trial under FTCA, no liability for attorneys' fees under FTCA, no liability for prejudgment interest under FTCA, and improperly named parties under FTCA.
3. The United States has filed a third-party complaint against the Plaintiff's insureds, Producers Dairy Foods, Inc. ("Producers") and John Ralph Steer ("Steer") for apportionment of fault, contribution, indemnity and for recovery of property damage as a result of the negligence of Steer in causing the subject incident.
4. Third-Party Defendants Producers and Steer jointly answered the third-party complaint filed by the United States on August 25, 2008. The Third-Party Defendants admitted that Steer was in the course and scope of his employment at the time he was driving the vehicle owned by Producers on June 21, 2007, and denied the substantive allegations. The answer asserts the following affirmative defenses: that the third-party complaint does not state a cause of action; that the Third-Party Defendants did not owe a duty to the United States; that the sole and proximate cause of the incident was the act or omissions of other persons; that the damage to United States was caused by its employee's negligent conduct; that any recovery should be reduced on a pro rata basis upon comparative fault principles; that the United States failed to mitigate its damages; that the amount of damages is contested; and that the Third-Party Defendants reserved the right to amend the answer to assert additional defenses.
II. Orders Re Amendments To Pleadings
1. The parties do not anticipate amending the pleadings at this time.
A. Admitted Facts Which Are Deemed Proven Without Further Proceedings.
1. On June 21, 2007, a collision occurred on Belmont Avenue in Fresno, California, involving a Producers vehicle driven by Steer and a U.S. Postal Service delivery vehicle driven by Stacey Bowen.
2. At the time of the collision, Steer was acting within the course and scope of his employment with Producers.
1. All other factual matters are contested.
1. Jurisdiction exists under 28 U.S.C. § 1331 and the Federal Tort Claims Act.
2. Venue is proper under 28 U.S.C. § 1391.
1. Whether the United States, or its employees were negligent in causing Plaintiff's purported damages.
2. Whether the damages alleged by Plaintiff were proximately caused entirely or in part by the negligence of Plaintiff's insureds.
3. Whether the damages alleged by Plaintiff were the proximate result of the actions or inaction of the United States or its employees.
4. Whether Plaintiff mitigated its damages.
5. Whether the United States is entitled to indemnity, contribution and an apportionment of fault based upon the ...