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Garris v. Pelonis Appliances, Inc.

United States District Court, E.D. Louisiana

March 21, 2017

ELIZABETH GARRIS, ET AL.
v.
PELONIS APPLIANCES, INC. ET AL

          SECTION: "A" (1)

          ORDER

          JAY C. ZAINEY UNITED STATES DISTRICT JUDGE

         Before the Court is a Motion for Summary Judgment (Rec. Doc. 340) filed by Defendant Pelonis, USA Ltd (“Pelonis USA”). Defendant Allianz Versicherungs AG opposes the motion. (Rec. Doc. 342). Also before the Court is a Motion for Summary Judgment (Rec. Doc. 341) filed by Defendant Allianz Versicherungs AG (“Allianz AG”). Defendant Pelonis USA opposes the motion. (Rec. Doc. 343). The motions, set for submission on December 14, 2016, are before the Court on the briefs.

         I. Background

         Defendant Pelonis USA filed its motion for summary judgment against Defendant Allianz AG seeking the defense costs Pelonis USA has paid to Dan Dwyer and the Unruh, Turner, Burke & Frees firm from the underlying matter. Defendant Allianz AG filed its opposing motion for summary judgment, seeking dismissal of Pelonis USA's claim against Allianz AG with prejudice. The Court dismissed the underlying matter on April 29, 2016, after the case settled, but retained jurisdiction over claims for reimbursement of attorney's fees and litigation costs.

         Plaintiffs originally initiated their action in 2010 based on a fire that was allegedly caused by a defective heater. The insurance policy on the heater was issued by Allianz China which in 2009, at the time of the incident, was a branch of Allianz AG. Allianz China became its own entity in 2010, but Chinese insurance regulations required that Allianz AG continue to guarantee the obligations of its insurance policies in the event that Allianz China failed to perform them. Specifically the document that Allianz AG signed in order for the Chinese government to allow Allianz's Chinese branch to become its own entity stated that:

The claims and debts of the original Allianz Insurance Company Gungzhou Branch shall be shared and carried by the transformed Allianz Property Insurance (China) Co. Ltd. Its outstanding insurance contracts and other contracts will continue performing under Allianz Property Insurance (China) Co. Ltd. Allianz Insurance Company shall assume joint liability for the aforementioned debts, insurance policies and contracts.

         When Plaintiffs brought this action in May of 2010, Allianz China retained Dominick W. Savaiano of the Clausen Miller, P.C. firm as counsel for Defendants Midea USA and Pelonis Appliances. Then, with Allianz China's approval, Clausen Miller, P.C. retained George Hebbler of the Hebbler & Giordano, LLC firm as local counsel for Defendants Midea USA and Pelonis Appliances. The case was consolidated with another action and its defense was led by Betsy Grover of Clausen Miller, P.C. (Rec. Doc. 341).

         In December of 2011, Plaintiffs Ronald Garris and Mark Wallace initiated an action against Pelonis USA in the United States District Court for the Eastern District of Pennsylvania. Dan Dwyer, Esq. and the law firm Unruh, Turner, Burke & Frees have been Pelonis USA's longstanding corporate counsel and represented Pelonis USA in the Pennsylvania litigation, which was later transferred to the Eastern District of Louisiana and consolidated with this lawsuit.

         Plaintiffs Ronald Garris and Mark Wallace then filed a second supplemental and amending complaint against Pelonis USA, for which Pelonis USA retained Jack Alltmont, Esq. and the Sessions Fishman firm. Allianz China “decided to provide indemnity and defense to Pelonis USA and authorized the retention of Jack Alltmont and the Sessions Fishman firm to continue its defense of Pelonis USA.” (Rec. Doc. 341). The parties ultimately settled in 2016. As of now, Allianz China has covered the defense costs incurred by Pelonis USA for its Louisiana counsel, but not its Pennsylvania counsel (Rec. Doc. 340).

         II. Analysis

         Defendant Pelonis USA moves for summary judgment against Defendant Allianz AG seeking defense costs incurred from retaining Mr. Dan Dwyer and the Unruh, Turner, Burke & Frees firm. Defendant Allianz AG moves for summary judgment to dismiss Defendant Pelonis USA's claims for defense costs incurred.

         Summary judgment is appropriate only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ” when viewed in the light most favorable to the non-movant, “show that there is no genuine issue as to any material fact.TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th Cir. 2002) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). A dispute about a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. (citing Anderson, 477 U.S. at 248). The court must draw all justifiable inferences in favor of the non-moving party. Id. (citing Anderson, 477 U.S. at 255).

         Once the moving party has initially shown “that there is an absence of evidence to support the non-moving party's cause, ” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant must come forward with “specific facts” showing a genuine factual issue for trial. Id. (citing Fed.R.Civ.P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)). Conclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial. Id. (citing SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir.1993)). Additionally, if the nonmoving party would bear the burden of proof of the dispositive issue at trial, then the moving party ...


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