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Lakeland Village Homeowners Association v. Great American Insurance Group

September 9, 2010

LAKELAND VILLAGE HOMEOWNERS ASSOCIATION, PLAINTIFF,
v.
GREAT AMERICAN INSURANCE GROUP, TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, AND DOES 1 THROUGH 50, DEFENDANTS.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER GRANTING DEFENDANT'S MOTION FOR CERTIFICATION OF ORDER FOR APPEAL, STAYING PROCEEDINGS PENDING INTERLOCUTORY APPEAL AND VACATING HEARING ON PLAINTIFF'S MOTION FOR ENFORCEMENT OF ORDER*fn1

Pending are Plaintiff's motion to enforce a partial summary judgment order and Defendant Travelers Property Casualty Company of America ("Travelers")'s motion for certification of the order for appeal under 28 U.S.C. § 1292(b) ("section 1292(b)"), which Plaintiff seeks to have enforced. Travelers also requests a stay of the district court proceedings pending the outcome of the requested appeal. The motions concern the Court's July 22, 2010 order that granted Plaintiff's motion for partial summary judgment on its declaratory relief claim and held that Travelers has a duty to defend a cross-complaint filed against Plaintiff in a pending state court action. (Order Granting Pl.'s Mot. for Partial Summ. J., ECF No. 58.)

I. BACKGROUND

Plaintiff's earlier motion for partial summary judgment sought a declaration that its insurer, Travelers, has a duty to defend a state court cross-complaint filed against it. Plaintiff's motion was granted because the cross-complaint alleges a nuisance claim covered by the following provision in its insurance policy: injury arising out of "invasion of the right of private occupancy of a room, dwelling or premises that a person occupies by or on behalf of its owner, landlord or lessor...." (Pl.'s P.&A. in Supp. of Mot. for Partial Summ. J. against Travelers 8:9-19, ECF No. 11.)

Plaintiff's partial summary judgment motion was granted in part because the clause "'by or on behalf of its owner, landlord or lessor'... is reasonably susceptible to more than one interpretation." (ECF No. 58. 11:18-22). Therefore, this clause was construed in Plaintiff's favor. Id. The order states, in relevant part:

The parties also dispute the effect of the clause "by or on behalf of its owner, landlord or lessor," in the policy's definition of "personal injury" for "invasion of the right of private occupancy."...

....

The parties have not provided any binding authority, which is dispositive of this issue....

Further, the out-of-state authority cited by the parties is conflicting....

....

Since the clause "by or on behalf of its owner, landlord or lessor," is reasonably susceptible to more than one interpretation, it is ambiguous and must be construed in Plaintiff's favor.

Id. 9:14-16, 10:6-7, 10:12-13, 11:18-20.

II. DISCUSSION

Travelers requests the Court amend its July 22, 2010 Order, which granted Plaintiff partial summary judgment (the "Order") to certify the following issue for ...


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