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Lexington Insurance Co. v. Virginia Surety Company, Inc.

United States District Court, Ninth Circuit

June 17, 2013

LEXINGTON INSURANCE COMPANY, a corporation, Plaintiff,
v.
VIRGINIA SURETY COMPANY, INC., a corporation; OLD REPUBLIC GENERAL INSURANCE CORPORATION, erroneously sued as OLD REPUBLIC GENERAL INSURANCE COMPANY, a corporation, Defendants.

KEVIN G. McCURDY, (SBN 115083) ROBERT J. SCOTT, Jr., (SBN 151775) McCURDY & FULLER LLP, Menlo Park, CA, Attorneys for Plaintiff LEXINGTON INSURANCE COMPANY

BOORNAZIAN JENSEN & GARTHE David J. Garthe, Attorneys for Defendants VIRGINIA SURETY COMPANY and OLD REPUBLIC GENERAL INSURANCE CORPORATION.

JUDGMENT

DALE S. FISCHER, District Judge.

The Court having granted plaintiff Lexington Insurance Company's motion for partial summary judgment on February 26, 2013, and the remaining claims and causes of action having been dismissed upon the stipulation of all parties,

IT IS HEREBY ORDERED AND ADJUDGED that judgment shall be and hereby is entered in favor of plaintiff Lexington Insurance Company ("Lexington") and against defendant Virginia Surety Company ("Virginia Surety") on Lexington's First Cause of Action for Declaratory Relief, Lexington's Second Cause of Action respect to the First and Second Causes of Action, the Court declares that:

1. Virginia Surety had and has a duty, under policy no. 1CG50147600, effective from July 1, 2004 to July 1, 2005, to defend San Bernardino Area Governments ("SANBAG") in the action entitled San Bernardino County Flood Control District v. State of California et al. , San Diego County Superior Court case no. 37-2009-002535-CU-EI-CTL ("District Action"); and

2. Virginia Surety's duty to defend SANBAG in the District Action is primary to any defense obligation owed by Lexington.

As to the Third Cause of Action, Lexington shall be and hereby is awarded judgment in the amount of Five Hundred Nineteen Thousand Nine Hundred Twenty Five Dollars and Fifty Seven Cents ($519, 925.57) representing defense fees paid by Lexington together with interest thereon from the date of entry of judgment at the rate specified in 28 U.S.C. ยง 1961.


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