Free Proposed Findings of Fact - District Court of Arizona - Arizona

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Wayne Gill, Esq., (FL Bar 114953) (Pro Hac Vice Admission) Walton Lantaff Schroeder & Carson LLP 1700 Palm Beach Lakes Blvd., 7th Floor West Palm Beach, FL 33401 Tel: 561/689-6700 Fax: 561/689-2647 Steven Plitt, Esq. (State Bar No. 007481) Daniel Maldonado, Esq. (State Bar No. 018483) Kunz Plitt Hyland Demlong Kleifield 3838 North Central Ave., #1500 Phoenix, AZ 85012-1092 [email protected] [email protected] Tel: 602/331-4600 Fax: 602/331-8600 Appearing for Defendant IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA U-HAUL INTERNATIONAL, INC.; UHAUL COMPANY OF PENNSYLVANIA; U-HAUL COMPANY OF FLORIDA; and REPUBLIC WESTERN INSURANCE COMPANY, Plaintiffs, vs. LUMBERMENS MUTUAL CASUALTY COMPANY, Defendant. Defendant, LUMBERMENS MUTUAL CASUALTY COMPANY, pursuant to Order Setting Final Pretrial Conference hereby files its Proposed Findings of Fact and Conclusions of Law. CASE NO. CIV-04-0662-PHX-DGC (Maricopa County Superior Court Case No. CV 2004-002438) DEFENDANT'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

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A.

Defendant's Proposed Findings of Fact 1. AON acted as plaintiffs' actual, express, implied, or apparent (i.e.,

ostensible) agent when AON obtained or procured insurance coverage for plaintiffs
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from LMC (i.e., when AON obtained or procured the LMC policies that insured AMERCO/U-Haul for the 4/1/99-00 and 4/1/00-01 policy periods), and AON had plaintiffs' express, implied, or apparent authority to obtain or procure the issuance of said LMC policies. 2. AON had U-Haul's express, implied, or apparent (i.e., ostensible)

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authority: (1) to represent to LMC that LMC would have no obligation to contribute to any judgment or settlement before Republic Western has paid $7,000,000 in indemnity; (2) to represent to LMC that Republic Western's payment of defense costs would not reduce any of Republic Western's combined $7,000,000 underlying coverage limits; and (3) to bind plaintiffs to said representations. 3. AON, during the course of obtaining or procuring the LMC policies that

insured AMERCO/U-Haul for 4/1/99-00 and 4/1/00-01 policy periods represented to LMC that: (1) LMC would have no obligation to contribute to any judgment or settlement before Republic Western has paid $7,000,000 in indemnity; and (2) that

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Republic Western's payment of defense costs would not reduce any of Republic Western's combined $7,000,000 underlying coverage limits. 4. Plaintiffs, by their direct act or negligent omission, caused or permitted

or inadvertently caused or permitted LMC to reasonably believe that plaintiffs had

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conferred authority on AON to represent to LMC: (1) that LMC would have no obligation to contribute to any judgment or settlement before Republic Western has paid $7,000,000 in indemnity; and (2) that Republic Western's payment of defense

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costs would not reduce any of Republic Western's combined $7,000,000 underlying coverage limits. 5. Plaintiffs, by their conduct, intentionally or through culpable negligence,

represented to LMC through plaintiffs' agent AON that: (1) LMC would have no obligation to contribute to any judgment or settlement before Republic Western has

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paid $7,000,000 in indemnity; and (2) that Republic Western's payment of defense costs would not reduce any of Republic Western's combined $7,000,000 underlying coverage limits, and induced LMC to justifiably believe said representations. 6. 7. 8. LMC justifiably relied on AON's aforesaid representations. LMC's reliance on said representations was detrimental to LMC. AON, at all times material, acted exclusively as the agent of plaintiffs

and did not act as an agent or co-agent for LMC. 9. LMC's affirmative defense of estoppel has been proven by clear and

satisfactory proof.
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10.

LMC is entitled to recover $126,221 from Republic Western as partial

reimbursement of LMC's total contribution to the settlement of the Nelson lawsuit, plus attorney's fees and interest on said amount.

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11.

LMC is entitled to recover $2,935,793.80 from Republic Western as

partial reimbursement of LMC's total contribution to the settlement of the Fernandez lawsuit, plus attorney's fees and interest on said amount.

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B.

Defendant's Proposed Conclusions of Law 1. AON, at all times material, acted exclusively as the agent of plaintiffs,

and did not act as an agent or co-agent for LMC. 2. LMC has, pursuant to the requisite legal standard, proven: (1) that Aon

was acting as plaintiffs' agent when AON represented to LMC that LMC would have
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no obligation to contribute to any judgment or settlement before $7,000,000 has been paid by Republic Western for indemnity only and that LAE paid by Republic Western would not reduce Republic Western's combined $7,000,000 underlying limit; and (2) has proven that AON had U-Haul's express, implied, or apparent authority to make such representations. 3. Plaintiffs, by their conduct, intentionally or through culpable negligence,

represented to LMC through plaintiffs' agent AON that: (1) LMC would have no obligation to contribute to any judgment or settlement before Republic Western has paid $7,000,000 in indemnity; and (2) that Republic Western's payment of defense

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costs would not reduce any of Republic Western's combined $7,000,000 underlying coverage limits, and induced LMC to justifiably believe said representations. 4. 5. LMC justifiably relied on AON's aforesaid representations. LMC's reliance on said representations was detrimental to LMC.

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6.

The facts in evidence, and the applicable law, support LMC's affirmative

defense of estoppel. 7. LMC has proven its affirmative defense of estoppel by the requisite legal

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standard of clear and satisfactory proof. 8. Pursuant to LMC's estoppel defense, the representations by AON to LMC

that LMC would have no obligation to contribute to any judgment or settlement before $7,000,000 has been paid by Republic Western for indemnity only, and that LAE paid by Republic Western would not reduce Republic Western's combined $7,000,000

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underlying coverage limits are held to be true, as a matter of law. 9. of estoppel. 10. Pursuant to LMC's estoppel defense, LMC is entitled to judgment in its LMC is entitled to judgment in its favor regarding its affirmative defense

favor on its counterclaim awarding it $126,221 against Republic Western as partial reimbursement of LMC's total contribution to the settlement of the Nelson lawsuit, and is further entitled to judgment in its favor on its counterclaim awarding it $2,935,793.82 against Republic Western as partial reimbursement of LMC's total contribution to the settlement of the Fernandez lawsuit for a total damages award of

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$3,062.014.82, plus attorney's fees and interest on said amount. 11. LMC is entitled to judgment in its favor regarding Republic Western's

claim against LMC for partial reimbursement of Republic Western's contributions to the Nelson and Fernandez settlement.

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12.

LMC, for all of the foregoing reasons, is entitled to judgment in its favor

regarding U-Haul's claims against LMC, and is also entitled to judgment in its favor regarding all of U-Haul's claims against LMC for the additional reason that all of the

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damages sought by plaintiffs were paid by Republic Western, and not by U-Haul. DATED this 10th day of January, 2007. WALTON LANTAFF SCHROEDER & CARSON LLP Wayne T. Gill, Esq. Southtrust Center 1700 Palm Beach Lakes Blvd., #700 West Palm Beach, FL 33401

KUNZ PLITT HYLAND DEMLONG KLEIFIELD Steven Plitt, Esq. Daniel Maldonado, Esq. 3838 N. Central Ave., Suite 1500 Phoenix, AZ 85012-1902

By: s/Daniel Maldonado Daniel Maldonado, Esq. Attorneys for Defendant

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CERTIFICATE OF SERVICE Filed electronically this 10th day of January, 2007 and copies electronically served/mailed to: Gerald Gaffaney, Esq. David J. Ouimette, Esq. Mariscal, Weeks, McIntyre & Friedlander, P.A. 2901 North Central, Suite 200 Phoenix, AZ 85012 Tel: 602/285-5000 Fax: 602/285-5100 Attorneys for Plaintiffs/Counter-Defendants Bruce Friedman, Esq. Mark S. Fragner, Esq. Rubin, Fiorella & Friedman, LLP 292 Madison Avenue New York, NY 10017 Tel: 212/953-2381 Fax: 212/953-2462 Attorneys for Plaintiffs/Counter-Defendants

s/ Tracey Barnes

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