DOCSLIB.ORG

Plancheck Brief

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Plancheck Brief Case: 20-56020, 02/05/2021, ID: 11995178, DktEntry: 12, Page 1 of 116 Docket No. 20-cv-56020 In the United States Court of Appeals for the Ninth Circuit PLAN CHECK DOWNTOWN III, LLC, a California limited liability company and others similarly situated, Plaintiff-Appellant, v. AMGUARD INSURANCE COMPANY, a Pennsylvania company, and DOES 1 through 20, Defendant-Appellee. Appeal from a Decision of the United States District Court for the Central District of California, No. 2:20-cv-06954 ∙ Honorable George H. Wu BRIEF OF APPELLANT KATHRYN LEE BOYD HECHT PARTNERS LLP 6420 Wilshire Boulevard, 14th Floor Los Angeles, CA 90048 (646) 502-9515 Telephone (646) 492-5111 Facsimile [email protected] Attorneys for Appellant, Plan Check Downtown III, LLC, a California limited liability company and others similarly situated Case: 20-56020, 02/05/2021, ID: 11995178, DktEntry: 12, Page 2 of 116 DISCLOSURE STATEMENT Pursuant to Rule 26.1 and Ninth Circuit LAR 26.1, Plan Check Downtown III, LLC declares that it has no parent corporation and no publicly traded corporation currently owns 10% or more of its stock . Dated: February 5, 2021 By: /s/ Kathryn Lee Boyd Kathryn Lee Boyd (SBN 189496) Hecht Partners LLP 6420 Wilshire Boulevard, 14th Floor Los Angeles, CA 90048 (646)502 -9515 Telephone (646) 492-5111 Facsimile [email protected] Attorneys for Appellant Plan Check Downtown III, LLC, and others similarly situated i Case: 20-56020, 02/05/2021, ID: 11995178, DktEntry: 12, Page 3 of 116 TABLE OF CONTENTS DISCLOSURE STATEMENT .................................................................................. i TABLE OF CONTENTS ......................................................................................... ii TABLE OF AUTHORITIES ....................................................................................iv INTRODUCTION .....................................................................................................1 JURISDICTIONAL STATEMENT ..........................................................................2 STATUTORY AUTHORITIES ................................................................................3 ISSUES PRESENTED ..............................................................................................3 STATEMENT OF THE CASE .................................................................................3 A. THE POLICY ...........................................................................................3 B. COVID-19 AND RELATED CLOSURE ORDERS ........................................4 C. APPELLANT’S INSURANCE CLAIM AND RESPONDENT’S DENIAL .............5 D. PROCEDURAL AND APPELLATE HISTORY ...............................................6 SUMMARY OF THE ARGUMENT ........................................................................7 STANDARD OF REVIEW .....................................................................................10 ARGUMENT ..........................................................................................................10 A. THE DISTRICT COURT VIOLATED THE CONTRA PROFERENTEM RULE IN INTERPRETING THE POLICY ..................................................................10 B. PLAN CHECK’S INTERPRETATION OF “DIRECT PHYSICAL LOSS OF OR DAMAGE TO” PROPERTY IS REASONABLE ............................................14 C. THE ANALYSIS OF THE DISTRICT COURT AND OF OTHER DISTRICT COURTS CONFRONTING RELATED ISSUES IS UNTENABLE ....................24 ii Case: 20-56020, 02/05/2021, ID: 11995178, DktEntry: 12, Page 4 of 116 D. THIS COURT NEED NOT DECIDE THE VIRUS EXCLUSION ISSUE ............29 E. THE VIRUS EXCLUSION DOES NOT BAR APPELLANT’S CLAIM AT THIS STAGE ..........................................................................................31 CONCLUSION .......................................................................................................35 STATEMENT OF RELATED CASES CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE ADDENDUM iii Case: 20-56020, 02/05/2021, ID: 11995178, DktEntry: 12, Page 5 of 116 TABLE OF AUTHORITIES Page(s) Federal Cases 10E, LLC v. Travelers Indem. Co., No. 2:20-CV-04418-SVW-AS, 2020 WL 5359653 (C.D. Cal. Sept. 2, 2020) ............................................................................................................... 35 10E, LLC v. Travelers Indemnity Co., No. 2:20-cv-04418-SVW-AS, 2020 WL 6749361 (C.D. Cal. Nov. 13, 2020) ............................................................................................................. 28 AIU Ins. Co. v. Superior Ct., 799 P.2d 1253 (Cal. 1990) ................................................................................. 10 Am. Alternative Ins. Corp. v. Superior Ct., 37 Cal. Rptr. 3d 918 (Cal. Ct. App. 2006) ......................................................... 14 Am. President Lines, Ltd. v. Int’l LonGshore & Warehouse Union, 721 F.3d 1147 (9th Cir. 2013) ............................................................................ 30 Are-east River Sci. Park, LLC v. LexinGton Ins. Co., No. 13-cv-01837-BRO, 2014 WL 12587051 (C.D. Cal. Mar. 27, 2014) ................................................................................................................... 32 Bareno v. Emps. Life Ins. Co. of Wausau, 500 P.2d 889 (Cal. 1972) ................................................................................... 10 Best Rest Motel Inc. v. Sequoia Ins. Co., No. 37-2020-00015679-CU-IC-CTL, 2020 WL 7229856 (Cal. Super. San Diego Cnty. Sept. 30, 2020) ............................................................. 25 Blue SprinGs Dental Care, LLC v. Owners Ins. Co., No. 20-CV-00383-SRB, 2020 WL 5637963 (W.D. Mo. Sept. 21, 2020) ................................................................................................................... 23 Boardwalk Condo. Ass’n v. Travelers Indem. Co., No. 03-cv-505-WQH(WMc), 2007 WL 1989656 (S.D. Cal. July 3, 2007) ............................................................................................................. 31, 32 iv Case: 20-56020, 02/05/2021, ID: 11995178, DktEntry: 12, Page 6 of 116 Boxed Foods Co., LLC v. Cal. Cap. Ins. Co., No. 20-CV-04571-CRB, 2020 WL 6271021 (N.D. Cal. Oct. 27, 2020) ................................................................................................................... 35 Cooper v. Travelers Indem. Co. of Ill., No. 10-cv-2400-VRW, 2002 WL 32775680 (N.D. Cal. Nov. 4, 2002) ................................................................................................................... 24 Davis v. Nordstrom, Inc., 755 F.3d 1089 (9th Cir. 2014) ............................................................................ 30 Encompass Ins. Co. v. BerGer, No. 12-cv-08294-MWF, 2014 WL 4987978 (C.D. Cal. Oct. 7, 2014) ................................................................................................................... 32 EOTT EnerGy Corp. v. Storebrand Int’l Ins. Co., 52 Cal. Rptr. 2d 894 (Cal. Ct. App. 1996) ......................................................... 14 F.D.I.C. v. Nichols, 885 F.2d 633 (9th Cir. 1989) .............................................................................. 30 Flintkote Co. v. General Accident Assurance Co., 410 F. Supp. 2d 875 (N.D. Cal. 2006) ............................................................... 18 Founder Inst. Inc. v. Hartford Fire Ins. Co., No. 20-CV-04466-VC, 2020 WL 6268539 (N.D. Cal. Oct. 22, 2020) ................................................................................................................... 35 Franklin EWC, Inc. v. Hartford Fin. Servs. Grp., Inc., No. 20-CV-04434 JSC, 2020 WL 5642483 (N.D. Cal. Sept. 22, 2020) ................................................................................................................... 35 Garvey v. State Farm Fire & Cas. Co., 770 P.2d 704 (Cal. 1989) ................................................................. 31, 32, 33, 34 Gillis v. Sun Ins. Office, Ltd., 47 Cal. Rptr. 868 (Cal. Dist. Ct. App. 1965) ...................................................... 31 Henderson Rd. Rest. Sys., Inc. v. Zurich Am. Ins. Co., No. 20-cv-01239, 2021 WL 168422 (N.D. Ohio Jan. 19, 2021) ............ 13, 16, 25 v Case: 20-56020, 02/05/2021, ID: 11995178, DktEntry: 12, Page 7 of 116 Hill & Stout PLLC v. Mut. of Enumclaw Ins. Co., No. 20-2-07925-1 SEA, 2020 WL 6784271 (Wash. Super. Nov. 13, 2020) ....................................................................................................... 10, 19 Howell v. State Farm Fire & Casualty Co., 267 Cal. Rptr. 708 (Cal. Ct. App. 1990) ............................................................ 34 HuGhes v. Potomac Ins. Co., 18 Cal. Rptr. 650 (Cal. Dist. Ct. App. 1962) .................................... 15, 22, 23, 24 Long Affair Carpet & Rug, Inc. v. Liberty Mut. Ins. Co., No. 20-cv-01713-CJC(JDEx), 2020 WL 6865774 (C.D. Cal. Nov. 12, 2020) ............................................................................................................. 28 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025 (9th Cir. 2008) ............................................................................ 10 Mark’s EnGine Co. No. 28 Rest., LLC v. Travelers Indem. Co., No. 2:20-cv-04423-AB-SK, 2020 WL 5938689 (C.D. Cal. Oct. 2, 2020) ................................................................................................................... 28 Meridian Textiles, Inc. v. Indemnity Insurance Co. of North America, No. 06-cv-4766 CAS, 2008 WL 3009889 (C.D. Cal. Mar. 20, 2008) ..................................................................................................................
Load more

Recommended publications
  • THOMA V. OXFORD PERFORMANCE MATERIALS, INC. (AC 35313) Alvord, Mullins and Lavery, Js
    ****************************************************** The ``officially released'' date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ``officially released'' date appearing in the opinion. In no event will any such motions be accepted before the ``officially released'' date. All opinions are subject to modification and technical correction prior to official publication in the Connecti- cut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Con- necticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be repro- duced and distributed without the express written per- mission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** LYNNE A. THOMA v. OXFORD PERFORMANCE MATERIALS, INC. (AC 35313) Alvord, Mullins and Lavery, Js. Argued May 28Ðofficially released September 23, 2014 (Appeal from Superior Court, judicial district of Hartford, Peck, J.) David R. Makarewicz, with whom, on the brief, was Christopher L. Brigham, for the appellant (defendant). Edward G.
    [Show full text]
  • In Insurance Policy Language: the Contra Proferentem Doctrine and Use of Extrinsic Evidence by SCOTT G
    Brief-win04-rev. 4/12/04 1:56 PM Page 33 Resolving Ambiguities in Insurance Policy Language: The Contra Proferentem Doctrine and Use of Extrinsic Evidence BY SCOTT G. JOHNSON UNDER THE DOCTRINE of con- doctrine and the modern applica- ized language drafted by the tra proferentem, ambiguities in tion of the rule; the types of extrin- insurer and effectively became contract language are construed sic evidence that courts consider in “contracts of adhesion.”5 against the drafter, typically the trying to resolve ambiguities; and Policyholders typically had no insurer.1 At one time, the exis- application of the contra profer- bargaining power and no effec- tence of an ambiguity in an entem doctrine in cases where the tive means of changing the terms insurance contract resulted in a insured (or its broker) drafts the of the insurance contract. The presumption of coverage for the insurance contract. courts’ logical reaction to this insured. But this is no longer the was to place the onus of ambigu- case. The Contra Proferentem ous terms on the insurers, Indeed, in most jurisdictions Doctrine because they had the better bar- today, the determination that an In noninsurance contract litiga- gaining position and were in a ambiguity must be construed tion, the contra proferentem doc- better position to avoid the ambi- against the drafter comes at the trine is often used as a last resort guity.6 end of a court’s inquiry, not at the to resolve ambiguous contract beginning. Before applying the language or, as one commentator The Modern Rule doctrine of contra proferentem, put it, as “a late-inning After insurance policies were courts first attempt to remove the tiebreaker, one used when the mass marketed, the existence of ambiguity by considering certain more probative and obvious an ambiguity in an insurance extrinsic evidence of the parties’ methods have failed.”2 But contract resulted in a presump- intent.
    [Show full text]
  • Adjudicating Insurance Policy Disputes: a Critique of Professor Randall's Poposal to Abandon Contract Law Jared A
    College of William & Mary Law School William & Mary Law School Scholarship Repository W&M Law Student Publications Student Publications and Awards 2011 Adjudicating Insurance Policy Disputes: A Critique of Professor Randall's Poposal to Abandon Contract Law Jared A. Wilkerson Repository Citation Wilkerson, Jared A., "Adjudicating Insurance Policy Disputes: A Critique of Professor Randall's Poposal to Abandon Contract Law" (2011). W&M Law Student Publications. 14. https://scholarship.law.wm.edu/studentpubs/14 Copyright c 2011 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/studentpubs Wilkerson Article.docx (Do Not Delete) 3/23/2011 3:39:00 PM ADJUDICATING INSURANCE POLICY DISPUTES: A CRITIQUE OF PROFESSOR RANDALL’S PROPOSAL TO ABANDON CONTRACT LAW Jared Wilkerson* Introduction here continues to be stark confusion and tense debate about T the proper role of courts in insurance disputes. Recently, commentators have offered numerous proposals on how insurance law — a special blend of contract law and public policy — should be approached by the courts when interpreting insurance policies.1 This article deals with one of those proposals — that by Professor Susan Randall — in an attempt to calm concerns it raises and to critique its necessity.2 Particularly, this article argues that the current system of judicial interpretation of * J.D./M.P.P. expected, The College of William & Mary. Special thanks to Stephen P. Carney, Esq. for his comments and guidance; and to Stacy for her patient encouragement. 1 Loosely following ERIC M. HOLMES & JOHN ALAN APPLEMAN, HOLMES’ APPLEMAN ON INSURANCE 2d § 5.1 (Supp.
    [Show full text]
  • Construction of Commercial Contracts
    CONSTRUCTION OF COMMERCIAL CONTRACTS Need to know Commercial contracts in Australia are given an objective, businesslike construction on the assumption that the parties intended to produce a commercial result. The meaning of commercial contracts is established by considering the language used in the context of the contract as a whole, the surrounding circumstances and the commercial purpose or objects to be secured by the contract. The courts take a broad approach to the admission of evidence of the surrounding circumstances known to the parties in interpreting commercial contracts. However there remains an unresolved question as to whether such evidence is admissible to construe a contractual provision if it has not first been established that the provision is ambiguous. In practice, courts regularly find such ambiguity exists, enabling the evidence to be adduced without the question being addressed. The contra proferentem rule of construction by which the words of a contract are construed against a party proffering them remains a valid rule of construction in Australia. However this is used only as a last resort where there remains ambiguity in a contractual term after the application of text-based and context-based principles of construction. In practice, resort to the rule is rare. No special rules apply to the interpretation of exclusion clauses, limitation clauses or insurance policies. These are interpreted in accordance with the general principles above. However standard clauses in insurance policies may have been given a particular judicial interpretation which will ordinarily prevail. Statute may also impact the construction or effectiveness of exclusion clauses, limitation clauses and clauses in insurance policies.
    [Show full text]
  • Contract Basics for Litigators: Illinois by Diane Cafferata and Allison Huebert, Quinn Emanuel Urquhart & Sullivan, LLP, with Practical Law Commercial Litigation
    STATE Q&A Contract Basics for Litigators: Illinois by Diane Cafferata and Allison Huebert, Quinn Emanuel Urquhart & Sullivan, LLP, with Practical Law Commercial Litigation Status: Law stated as of 01 Jun 2020 | Jurisdiction: Illinois, United States This document is published by Practical Law and can be found at: us.practicallaw.tr.com/w-022-7463 Request a free trial and demonstration at: us.practicallaw.tr.com/about/freetrial A Q&A guide to state law on contract principles and breach of contract issues under Illinois common law. This guide addresses contract formation, types of contracts, general contract construction rules, how to alter and terminate contracts, and how courts interpret and enforce dispute resolution clauses. This guide also addresses the basics of a breach of contract action, including the elements of the claim, the statute of limitations, common defenses, and the types of remedies available to the non-breaching party. Contract Formation to enter into a bargain, made in a manner that justifies another party’s understanding that its assent to that 1. What are the elements of a valid contract bargain is invited and will conclude it” (First 38, LLC v. NM Project Co., 2015 IL App (1st) 142680-U, ¶ 51 (unpublished in your jurisdiction? order under Ill. S. Ct. R. 23) (citing Black’s Law Dictionary 1113 (8th ed.2004) and Restatement (Second) of In Illinois, the elements necessary for a valid contract are: Contracts § 24 (1981))). • An offer. • An acceptance. Acceptance • Consideration. Under Illinois law, an acceptance occurs if the party assented to the essential terms contained in the • Ascertainable Material terms.
    [Show full text]
  • FORCE MAJEURE BOILERPLATE CLAUSE Need To
    FORCE MAJEURE BOILERPLATE CLAUSE Need to know A force majeure clause provides a way for a party to terminate or vary their contractual obligations because an event which is (usually) outside the control of that party has affected their performance of the contract. The sample Force Majeure clause must be used together with a clause which defines a “Force Majeure Event.” THE SAMPLE CLAUSE Force Majeure (a) If a party is unable to perform an obligation under this [deed/agreement] because of a Force Majeure Event, then: (i) as soon as reasonably practicable (and in any event no later than [10/[insert number]] Business Days) after the Force Majeure Event arises, that party must notify the other party of the extent to which the notifying party is unable to perform its obligation; (ii) where a party complies with clause (a)(i), that party's obligation to perform those obligations will be suspended for the duration of the delay arising directly out of the Force Majeure Event; and (iii) in all cases, the parties must use their best endeavours to minimise the impact of any Force Majeure Event. (b) Neither party is excused from any obligation to pay money because of a Force Majeure Event, despite any other provision of this [deed/agreement]. (c) If a delay by either party arising directly out of a Force Majeure Event continues for more than [30/[insert number]] Business Days, the other party may, at its discretion: (i) reject [describe what is to be affected, eg “the Products”] affected by that Force Majeure Event by giving [10/[insert number]] Business Days notice to the delaying party; or (ii) terminate the [deed/agreement] by giving [10/[insert number]] Business Days notice to the delaying party.
    [Show full text]
  • Contra Proferentem Douglas Wilhelm Harder
    This document is intended for the instruction and examination of ECE 290 Engineering Profession, Ethics and Law at the University of Waterloo. The material in it reflects the author’s best judgment in light of the information available to them at the time of preparation. Any reliance on this document by any party for any other purpose is the responsibility of such parties. The author accepts no responsibility for errors or omissions, or for damages, if any, suffered by any party as a result of decisions made or actions based on the contents of this text for any other purpose than that for which it was intended. Contra Proferentem Douglas Wilhelm Harder This is a Latin phrase meaning “against the one bringing forth”. When a term is included in a contract at the insistence of one party, any ambiguity in that term must be interpreted against the interests of the party who insisted upon its inclusion. This will only apply if the term is included unilaterally by one party and will not apply if the term was subject to negotiations by both parties. This rule also applies to contracts of adhesion; for example, the standard contracts of insurance companies and residential leases. In these cases, the parties involved in the contract have unequal bargaining positions and to mitigate this imbalance, any uncertainty is ruled in favor of the party upon whom the contract was forced. Aside Some common law jurisdictions have codified this concept. For example, included in 1872 into the California Civil Code was §1654, which says that “[i]n cases of uncertainty...the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist.” Aside A discussion on contra proferentem was included in the decision of Oxonica Energy Ltd v.
    [Show full text]
  • The Contra Proferentem Rule: Contract Law’S Great Survivor
    McCunn, J. (2019). The contra proferentem rule: Contract law’s great survivor. Oxford Journal of Legal Studies, 39(3), 483-506. [gqz002]. https://doi.org/10.1093/ojls/gqz002 Peer reviewed version License (if available): Other Link to published version (if available): 10.1093/ojls/gqz002 Link to publication record in Explore Bristol Research PDF-document This is the accepted author manuscript (AAM). The final published version (version of record) is available online via Oxford University Press at https://academic.oup.com/ojls/article-abstract/39/3/483/5366186 . Please refer to any applicable terms of use of the publisher. University of Bristol - Explore Bristol Research General rights This document is made available in accordance with publisher policies. Please cite only the published version using the reference above. Full terms of use are available: http://www.bristol.ac.uk/red/research-policy/pure/user-guides/ebr-terms/ TH E C ONTRA PROFERENTEM RULE : CONTRACT LAW’S GREAT SURVIVOR Joanna McCunn* Abstract: The contra proferentem rule has been under sustained attack in recent years, as judges doubt whether it has any role to play in modern commercial contract law. This article sheds light on the function of the rule by examining its historical development. The rule has been part of English contract law for over six hundred years, playing very different roles at each stage of its development. Lawyers since the medieval period have criticised the rule, but have succeeded in continually repurposing it to fit with new conceptions of contract law and to address the most pressing concerns of their day.
    [Show full text]
  • Half-Truths, Whole Lies, & the Duty of Disclosure in Insurance
    COMMENT SUBMISSION TITLE Half-Truths, Whole Lies, & the Duty of Disclosure in Insurance Law WORD COUNT 9,533 ABSTRACT A half-truth need not be a whole lie for insurance purposes; insurance law must distinguish between concealment and misrepresentation for equity and efficiency reasons. Reasonable disclosure should be the goal of underwriting, though what is “reasonable” should depend upon the insured’s degree of sophistication. This Comment argues that, whereas it may be equitable and efficient to relax the disclosure duty for the average person, it makes sense to raise this duty for the commercial insured. This argument is normative—asking what the duty ought to be, rather than what it is—though it finds empirical support in the case law. TABLE OF CONTENTS Introduction....................................................................................................................... 3 I. The Nature of Insurance and the Role of the Insurance Questionnaire ............... 5 II. The Unsophisticated Insured: A Lower Disclosure Duty.................................... 11 III. The Sophisticated Insured: A Higher Disclosure Duty ..................................... 25 Conclusion ....................................................................................................................... 29 Introduction In high school, I had the pleasure of meeting U.S. Senator John Ensign at a private gathering, where he shared his views with a small group of students. The details of his talk escape me, but one statement in particular stood out: “A half-truth is a whole lie.” Although this statement resonated with me on some level, I found it inadequate and simplistic—a sound bite of sorts, perhaps a bit quaint. Generally speaking, a half-truth is not a whole lie because the exclusion of a fact from an otherwise accurate statement does not render the statement false, per se.
    [Show full text]
  • DCCA Opinion No. 08-CV-730: Tsintolas Realty V. Maria Mendez
    Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 08-CV-730 TSINTOLAS REALTY COMPANY, APPELLANT, v. MARIA L. MENDEZ, et al., APPELLEES. Appeal from the Superior Court of the District of Columbia (LT42316-07) (Hon. Gerald Fisher, Trial Judge) (Argued September 24, 2009 Decided November 25, 2009) Suzanne M. Tsintolas, with whom Jonathan C. Windle was on the brief, for appellant. Kenneth J. Nichols, with whom John H. Brown was on the brief, for appellees. Before BLACKBURNE-RIGSBY and THOMPSON, Associate Judges, and SCHWELB, Senior Judge. SCHWELB, Senior Judge: Tsintolas Realty Company (the landlord) appeals from an order of the Superior Court granting the motion of Maria L. Mendez and Oscar A. Aragon (the tenants) to enforce a settlement agreement which had resolved a suit by the landlord for possession of the apartment occupied by the tenants in northwest Washington, D.C. The landlord asserts that the tenants are not entitled to relief because they committed a material breach of the settlement agreement. The landlord also contends that the agreement left unresolved certain of its claims and that the trial judge erred in holding to the contrary. We reject the first of these contentions, agree with the second, and remand for further proceedings. 2 I. Procedural and Factual Background On October 3, 2007, following a building-wide inspection of an apartment building located at 5400 Seventh Street, N.W.
    [Show full text]
  • UNITED STATES DISTRICT COURT for the WESTERN DISTRICT of MICHIGAN SOUTHERN DIVISION FRONTIER ENERGY, LLC, Appellant/Cross-Appell
    Case 1:12-cv-00424-RHB Doc #30 Filed 03/27/13 Page 1 of 14 Page ID#<pageID> UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION FRONTIER ENERGY, LLC, Appellant/Cross-Appellee, File No. 1:12-CV-424 v. HON. ROBERT HOLMES BELL AURORA ENERGY, LTD., Appellee/Cross-Appellant. / O P I N I O N This matter is before the Court on an appeal of the bankruptcy court’s entry of judgment in a natural gas royalty dispute, and a cross-appeal of the bankruptcy court’s determination that the term “lease” in 11 U.S.C. § 365 applies to oil and gas leases. For the reasons that follow, the Court will affirm the judgment and dismiss the cross-appeal as moot. I. Appellant Frontier Energy, LLC, owns the mineral rights formerly held by North Michigan Land and Oil Company. Appellee Aurora Energy, Ltd., is a company involved in extracting oil and gas. In 2002, Aurora entered into an agreement with Frontier (the “Hudson Agreement”) to lease a large mineral estate in Charlevoix County, Michigan. Under the Hudson Agreement, Aurora, as lessee, agreed to lease oil and gas producing properties from Frontier, as lessor, in exchange for the payment of royalties to Frontier. The negotiated agreement Case 1:12-cv-00424-RHB Doc #30 Filed 03/27/13 Page 2 of 14 Page ID#<pageID> departed from the standard State of Michigan form lease in several significant respects. The parties agreed on an initial royalty of 15% of the proceeds of sale before Payout, subject to deductions for “costs incurred by lessee for CO 2 removal, third party transportation, and necessary compression.” (Dkt.
    [Show full text]
  • In the United States Court of Federal Claims
    In the United States Court of Federal Claims No. 11-682 C (Filed February 25, 2014) * * * * * * * * * * * * * * * * * * * * * ENSLEY, INC., * * Contract; Breach and Setoff; Plaintiff, * Setoff of Repair Costs against * Rent and Tax Payments Owed v. * under Postal Service Lease. * THE UNITED STATES, * * Defendant. * * * * * * * * * * * * * * * * * * * * * * Lawrence M. Magdovitz, II, Cordova, TN, for plaintiff. Matthew P. Roche, United States Department of Justice, with whom were Stuart F. Delery, Assistant Attorney General, Bryant G. Snee, Acting Director, and Martin F. Hockey, Jr., Assistant Director, Washington, DC, for defendant. _________________________ OPINION _________________________ BUSH, Senior Judge. Now pending before the court is defendant’s motion for summary judgment pursuant to Rule 56 of the Rules of the United States Court of Federal Claims (RCFC). Defendant’s motion has been fully briefed and is ripe for a decision by the court. Oral argument was neither requested by the parties nor required by the court. For the reasons set forth below, the court grants defendant’s motion. BACKGROUND1 I. Factual Background A. Lawrence Magdovitz and Ensley Station During the time period relevant to this litigation, Lawrence Magdovitz, an attorney, realtor, and residential contractor in Clarksdale, Mississippi, owned and/or controlled several corporations which together own hundreds of properties that are leased to the United States Postal Service (the Postal Service), including the property which is the subject of this litigation. A117-18, 122, 127-28, 130-36.2 That property, which is located at 700 18th Street in Birmingham, Alabama, and which the parties refer to as “Ensley Station,” has been leased to the Postal Service since 1965 for use as a post office.
    [Show full text]