Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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Steven Plitt, Esq. (State Bar No. 007481) Daniel Maldonado, Esq. (State Bar No. 018483 KUNZ PLITT HYLAND DEMLONG & KLEIFIELD, P.C. 3838 North Central Avenue, Suite 1500 Phoenix, Arizona 85012-1092 Telephone: (602) 331-4600 Facsimile: (602) 331-8600 Attorneys for Defendant/Counter-Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA U-Haul International, Inc.; U-Haul Company; of Pennsylvania; U-Haul Company of Florida; and Republic Western Insurance Company, Plaintiffs, vs. Lumbermens Mutual Casualty Company, Defendants (Assigned to the Honorable David G. Campbell)

No. CIV 04-0662 PHX DGC (Maricopa County Superior Court Cause No. CV 2004002438) MOTION TO SUBSTITUTE BONDS

Defendant/Counter-Plaintiff,

LUMBERMENS

MUTUAL

CASUALTY

COMPANY ("LMC"), by and through its undersigned counsel, hereby moves this Court, to enter an order granting LMC leave to file two bonds to substitute in place of the Supersedeas Bond which this court approved in an order dated July 20, 2007. Pursuant to Rule 62(d) of the Federal Rules of Civil Procedure, this Court approved a Supersedeas Bond posted by LMC and entered a stay pending an appeal of this case in the United States Court of Appeals for the Ninth Circuit. (A true and accurate copy of the July 20, 2007 Order is attached hereto as Exhibit A). The

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Supersedeas Bond which the Court approved was in the amount of $2,858,000.00. (A true and accurate copy of the existing Supersedeas Bond is attached hereto as Exhibit B). LMC was required to collateralize the entire $2,858,000.00 Supersedeas Bond

5 6 7 8 9 10 11 12 13 14 15 16 17 using the same form as the bond previously posted by LMC. (Exhibit D, ¶ 8; 18 19 20 21 22 23 24 bond substitution would impose no greater risk on the Plaintiffs whatsoever, and 25 would only require the ministerial act of collecting on two bonds rather than one in Unexecuted Scor Bond, Exhibit E). LMC is prepared to post a new bond in the remaining amount of $2,655,512.21. (Exhibit C, ¶ 8; Unexecuted LMC Bond, this case under the Reinsurance Agreement) in substitution for that equivalent proportion of Lumbermens' bond. (Exhibit D, ¶ 5). Because Scor is able to post an uncollateralized Supersedeas Bond (Exhibit D, ¶ 6), this arrangement will result in a cost savings over LMC's existing fully collateralized bond. Scor is ready, willing and able to independently post a bond in that amount in this case. (Affidavit of Benjamin Schwartz, Exhibit C, ¶ 3). LMC's reinsurer, Scor Reinsurance Company ("Scor"), is a financially solvent A-rated reinsurer with a policyholder's surplus in excess of $470 million. (Affidavit of Richard Gerrity, Exhibit D, ¶ 4). Scor has agreed to independently post a Supersedeas Bond in the amount of $202,487.79 (which is Scor's proportionate share of LMC's exposure in

Exhibit F). These two bonds would total the amount of the existing $2,858,000.00 Supersedeas Bond and fully protect U-Haul International, Inc. and Republic Western Insurance Company ("Plaintiffs") in the event this court's judgment is affirmed. This

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the unlikely event that LMC refused to pay the judgment. While the substituted bonds will provide equal protection to the Plaintiffs, they will also reduce the overall financial burden on LMC. Based upon the foregoing, Defendant LMC respectfully requests that this

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ORIGINAL electronically filed with the USDC this 13th day of June, 2008, and a Copy delivered to Judge Campbell; By: s/ Daniel Maldonado___________ Steven Plitt Daniel Maldonado 3838 N. Central Avenue, Suite 1500 Phoenix, AZ 85012-1902 Attorneys for Defendant KUNZ PLITT HYLAND DEMLONG & KLEIFIELD, P.C. Court enter an order granting LMC leave to post two bonds, in the total amount of $2,858,000.00 in substitution for the single bond in the same amount approved by this court in its July 20, 2007 order. DATED this 13th day of June, 2008.

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and a COPY electronically served/mailed to: Gerald Gaffaney, Esq. David J. Ouimette, Esq. MARISCAL, WEEKS, MCINTYRE & FRIEDLANDER, P.A. 2901 North Central, Suite 200 Phoenix, Arizona 85012 Attorneys for Plaintiff Bruce Friedman, Esq. Mark S. Fragner, Esq. RUBIN, FIORELLA & FRIEDMAN, LLP 292 Madison Avenue, 11th Floor New York, New York 10017 Attorneys for Plaintiff s/ Daniel Maldonado
Document #: 77361

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