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National Union Fire Insurance Company of Pittsburgh, Pa and American v. Ready Pac Foods

March 18, 2011

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA AND AMERICAN GUARANTEE & LIABILITY INSURANCE COMPANY, PLAINTIFF/INTERVENING
PLAINTIFF,
v.
READY PAC FOODS, INC. AND TACO BELL CORP., DEFENDANT/INTERVENING
DEFENDANT. TACO BELL CORP., THIRD-PARTY PLAINTIFF,
v.
ST. PAUL FIRE AND MARINE INSURANCE COMPANY, THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: Honorable Ronald S.W. Lew Senior, U.S. District Court Judge

ORDER re: PLAINTIFF-IN-INTERVENTION AMERICAN GUARANTEE & LIABILITY INSURANCE COMPANY'S MOTION TO AMEND THE COURT'S DECEMBER 28, 2010 ORDER GRANTING PARTIAL SUMMARY JUDGMENT [164] AND INTERVENING DEFENDANT AND THIRD-PARTY PLAINTIFF TACO BELL CORPORATION'S MOTION TO CERTIFY THE COURT'S DECEMBER 28, 2010 ORDER FOR INTERLOCUTORY REVIEW [163]

On March 02, 2011, Plaintiff-in-Intervention American Guarantee & Liability Insurance Company's Motion to Amend the Court's December 28, 2010 Order Granting Partial Summary Judgment and Intervening Defendant and Third-Party Plaintiff Taco Bell Corporation's Motion to Certify the Court's December 28, 2010 Order for Interlocutory Review came on for regular calendar before this Court. The Court having reviewed all papers submitted pertaining to these Motions and having considered all arguments presented to the Court, NOW FINDS AND RULES AS FOLLOWS:

I. Plaintiff-In-Intervention American Guarantee & Liability Insurance Company's Motion To Amend The Court's December 28, 2010 Order Granting Partial Summary Judgment

A. Legal Standard

Under Federal Rule of Civil Procedure 60(a), the court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may do so on motion or on its own, with or without notice. Fed. R. Civ. P. 60(a).

Pursuant to Federal Rule of Evidence 201(a), the Court may take judicial notice of adjudicative facts only. Fed. R. Evid. 201(a). A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b). A court must take judicial notice if a party requests it and supplies the court with the requisite information. Fed. R. Evid. 201(d).

B. Analysis

As a preliminary matter, the Court GRANTS Plaintiff-in-Intervention American Guarantee's Request for Judicial Notice, pursuant to Federal Rule of Evidence 201, of the facts establishing the priority of coverage as between National Union policy number BE 5191146 (the "National Union Policy"), St. Paul policy number QI02100125 (the "St. Paul Policy"), and American Guarantee policy number AEC 5086682 02 (the "American Guarantee Policy"). Specifically, the Court takes judicial notice of the fact that the first layer of excess liability coverage was afforded by the National Union Policy, that the second layer of excess liability coverage was afforded by the St. Paul Policy, and that the third layer of excess liability coverage was afforded by the American Guarantee Policy.

The Court GRANTS Plaintiff-in-Intervention American Guarantee's Motion to Amend the Court's December 28, 2010 Order Granting Partial Summary Judgment pursuant to Federal Rule of Civil Procedure 60(a). The Court issues an Amended Order to correct the clerical error. The Amended Order reflects that Third-Party Defendant St. Paul issued to Ready Pac a second layer excess liability policy and that the American Guarantee Policy is a third layer excess liability policy.

II. Intervening Defendant And Third-Party Plaintiff Taco Bell Corporation's Motion To Certify The Court's December 28, 2010 Order For Interlocutory Review

A. Legal Standard

28 U.S.C. § 1292(b), which governs interlocutory decisions, states: when a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.

28 U.S.C. ยง 1292(b). The Supreme Court has held that "federal law expresses the policy against piecemeal appeals" and therefore interlocutory appeals should be strictly construed. Switzerland Cheese ...


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