United States District Court, E.D. Louisiana
ELIZABETH GARRIS, ET AL.
PELONIS APPLIANCES, INC. ET AL
SECTION: "A" (1)
ZAINEY UNITED STATES DISTRICT JUDGE
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.
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
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
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).
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.
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).
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
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).
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 ...