In Re Trisura Insurance Company v. the State of Texas

United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 May 23, 2025 Before ILANA DIAMOND ROVNER, Circuit Judge MICHAEL B. BRENNAN, Circuit Judge JOSHUA P. KOLAR, Circuit Judge No. 24-1524 CITIZENS INSURANCE COMPANY Appeal from the United States District Court OF AMERICA, for the Northern District of Illinois, Plaintiff-Appellee, Eastern Division. v. No. 1:22-cv-01334 MULLINS FOOD PRODUCTS, INC., Jorge L. Alonso, Defendant-Appellant. Judge. ORDER Plaintiff-Appellee, Citizens Insurance Company of America, filed a Petition for Rehearing on May 16, 2025. All members of the panel have voted to deny rehearing but to amend the opinion dated May 2, 2025, as follows: At page 2, first full paragraph, three lines from the bottom of the paragraph, immediately before the word “indemnify,” insert the words “potentially to”; At page 14, last paragraph, fourth line, again insert the words “potentially to” immediately before “indemnify”; At page 21, in the first and only paragraph of the main text, lines 5-6, replace “must also” with “may potentially be required to”; No. 24-1524 Page 2 At page 21, at the end of the same paragraph, insert the following sentence: “The duty to indemnify Mullins has not been briefed in this appeal and remains to be sorted out on remand.” At page 32, four lines from the bottom of the paragraph, insert the following sentence immediately prior to the sentence beginning “We therefore VACATE . . .”: “Also in the event the district court determines that timely notice was given to Citizens, the district court must resolve whether Citizens has a duty to indemnify Mullins.” The Petition for Rehearing is DENIED

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 9 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MATTHEW BECKER; LAUREN No. 24-443 KUEHNE; ADAM CRISWELL; D.C. No. KRYSTAL CRISWELL; ALFEE DIXON; 3:21-cv-05185-JHC DONALD FINISTER Sr.; CHRISTOPHER HART; JASON KOVACK; RICKY LORENSIUS; HEATHER MAREK; MEMORANDUM* MICHAEL MARTIN; DAISEY MARTINEAR; GRACE MATEIAK; IAN MATEIAK; JOHN MELOPRIETO; TRAVIS NEUMAN; Doctor ARIEL NEUMAN; MICHELLE PAULINO; JOHN PAULINO; JAMES RAMPONI; LINDSEY RAMPONI; ERIC MCCANDLESS; PAIGE ROE; PAUL ROHRER; ANDREW SICAT; NICOYA SICAT; IAN LAUGHLIN; SHELLY LAUGHLIN; TAMMARA BOYLES; BOBBY BOYLES; LAIN SUPE; PETER BROWN; JEREMY SIERRA; ERICA SIERRA; DARIUS USMAN; KRISTEN ZABAGLO; DAVID WILSON, Plaintiffs - Appellants, v. TIG INSURANCE COMPANY; UNITED SPECIALTY INSURANCE COMPANY, a foreign insurer, * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.  Defendants - Appellees. Appeal from the United States District Court for the Western District of Washington John H. Chun, District Judge, Presiding Submitted June 5, 2025** Seattle, Washington Before: HAWKINS, GOULD, and BUMATAY, Circuit Judges. Appellants (“Homeowners”) appeal the dismissal of their case with prejudice under Federal Rule of Civil Procedure Rule 41(b) and several interlocutory rulings. We affirm the dismissal and do not consider Homeowners’ other claims because the dismissal was proper, foreclosing review of interlocutory rulings. A dismissal under Rule 41(b) is reviewed for abuse of discretion. Al- Torki v. Kaempen, 78 F.3d 1381, 1384 (9th Cir.1996). “The trial court's dismissal will only be disturbed if there is a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.” Pagtalunan v. Galaza, 291 F.3d 639, 640-41 (9th Cir. 2002) (internal quotation marks omitted). This court weighs five factors to decide whether dismissal for failure to ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 24-443 prosecute or comply with a court order is proper. Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998). They are: “(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Id. There must be “unreasonable delay” before dismissal is proper. In re Eisen, 31 F.3d 1447, 1451 (9th Cir.1994). “A reviewing court will give deference to the district court to decide what is unreasonable because it is in the best position to determine what period of delay can be endured before its docket becomes unmanageable.” Id. (internal quotation marks omitted). The district court did not abuse its discretion by dismissing Homeowners’ action. The district judge made detailed findings regarding each factor. Because the facts are familiar to the parties, we reference them only as they are relevant to the decision. The first factor—the public’s interest in expeditious resolution of litigation— strongly favored dismissal. Homeowners exhibited a pattern of noncompliance with deadlines. Failure to comply with the court’s orders or the Federal Rules of Civil Procedure provides grounds for dismissal under Rule 41(b). Fed. R. Civ. P. 41(b). Homeowners argue that they missed these deadlines in good faith, but a showing of bad faith is not required under the court’s inherent power to dismiss for lack of 3 24-443 prosecution under Rule 41(b). See Henderson v. Duncan, 779 F.2d 1421, 1425 (9th Cir. 1986). The second factor—the district court’s need to manage its docket—also strongly favored dismissal. Plaintiffs’ repeated failures to meet deadlines undermined efficient management of the district court’s docket. See Pagtalunan, 291 F.3d at 642. The third factor—the risk of prejudice to Appellee TIG Insurance Company (“TIG”)—also strongly favored dismissal. TIG suffered prejudice because Homeowners interfered with

USCA4 Appeal: 23-1733 Doc: 46 Filed: 08/08/2025 Pg: 1 of 14 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 23-1733 J.H., by and through their Guardian Ad Litem, Erica Chambers; E.H., by and through their Guardian Ad Litem, Erica Chambers; ERICA CHAMBERS, individually, Plaintiff - Appellees, v. HARFORD MUTUAL INSURANCE GROUP, INC., Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:21-cv-00856-LPA) Argued: March 18, 2025 Decided: August 8, 2025 Before HEYTENS and BERNER, Circuit Judges, and John A. GIBNEY, JR., Senior United States District Judge for the Eastern District of Virginia, sitting by designation. Affirmed by unpublished per curiam opinion. ARGUED: William A. Bulfer, Asheville, North Carolina, Daniel Thomas Strong, TEAGUE CAMPBELL DENNIS & GORHAM, LLP, Raleigh, North Carolina, for Appellants. Coleman Cowan, LAW OFFICES OF JAMES SCOTT FARRIN, Durham, North Carolina, for Appellees. ON BRIEF: Kaitelyn E. Fudge, LAW OFFICES OF JAMES SCOTT FARRIN, Durham, North Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 23-1733 Doc: 46 Filed: 08/08/2025 Pg: 2 of 14 PER CURIAM: Erica Chambers was driving with her two minor children on the highway in North Carolina when they were hit by a truck owned by Big Boss Construction, Inc. After bringing suit against Big Boss and several other parties involved in the accident, Chambers filed a declaratory judgment action to establish that Big Boss’s $2 million commercial excess insurance policy—issued by Harford Mutual Insurance Group, Inc.—provided coverage for the accident. The district court sided with Chambers and concluded that the accident fell within the scope of the policy’s coverage. The district court further determined that Chambers and her children were entitled to pre- and post-judgment interest under the policy. We affirm both rulings. I. Background 1 On October 27, 2018, Erica Chambers and her children were severely injured in an automobile accident as they drove south on North Carolina Highway 49. A truck owned by Big Boss Construction, Inc. crossed the center of the highway and struck Chambers head on. The driver of the truck was unauthorized to operate a motor vehicle, as he lacked a valid driver’s license. The parties agree that at the time of the accident, the driver was an agent of Big Boss acting within the scope of his employment. The driver was on his way 1 In the litigation agreement discussed infra, the parties “agree[d] that all facts and conclusions of law pled in the Second Amended Complaint in the Underlying Litigation are deemed admitted” for the purpose of this declaratory judgment action. J.A. 207. We thus recite the facts as alleged in that complaint. 2 USCA4 Appeal: 23-1733 Doc: 46 Filed: 08/08/2025 Pg: 3 of 14 to complete a job for a different company, NC Champions Construction, Inc., which was using the truck with Big Boss’s permission. Chambers and her children incurred astronomical medical bills as a result of the accident. Chambers spent 34 days in the hospital recovering from broken bones throughout her body. She endured multiple surgeries and remains under medical care for her injuries, some of which are permanent. One of Chambers’s children suffered a head injury and continues to experience memory problems. Her other child suffered a broken leg. In total, the family’s medical bills have exceeded $500,000. Chambers and her children (collectively, Chambers 2) filed suit in North Carolina state court against the driver, Big Boss, and NC Champions. The suit alleged, among other claims, that Big Boss was liable for negligently entrusting its truck to the driver. At the time of the accident, Big Boss carried multiple insurance policies, including a commercial excess umbrella policy (the Excess Policy) issued by Harford Mutual Insurance Group, Inc. The Excess Policy had a liability limit of $2 million. It co

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS DESIREE DURGA and JUSTIN DURGA, UNPUBLISHED August 13, 2025 Plaintiffs-Appellees, 9:04 AM v No. 371891 Benzie Circuit Court MEMBERSELECT INSURANCE COMPANY, LC No. 23-012025-CZ Defendant-Appellant. Before: O’BRIEN, P.J., and BOONSTRA and WALLACE, JJ. PER CURIAM. This action arises out of a motor vehicle accident that occurred in June 2023, when plaintiff Desiree Durga was driving a Chevrolet Silverado that was involved in a collision with another motor vehicle. This accident resulted in extensive damage to the Silverado, which was insured by defendant MemberSelect Insurance Company (MemberSelect). Plaintiffs alleged that defendant breached their automobile insurance contract when it rescinded their policy based upon an allegation that Desiree Durga made a fraudulent misrepresentation in the application process. The trial court entered a July 2, 2024 amended order granting plaintiffs’ motion for summary disposition on their breach of contract claim pursuant to MCR 2.116(C)(10) and denying defendant’s cross-motion for summary disposition in which it had argued that it was entitled to rescind the policy. On July 9, 2024, the court entered an order of judgment in favor of plaintiffs in the amount of $82,476.04, and this appeal of right by defendant followed. We affirm. I. FACTS As a result of plaintiff Justin Durga having two or more substance abuse convictions in seven years, his Michigan operator’s license was mandatorily revoked from June 9, 2007 “until requirements have been met.” MCL 257.303(2)(c). -1-  In June 2012, plaintiff Justin Durga’s wife, Desiree, applied to obtain automobile insurance from defendant MemberSelect for a Jeep Grand Cherokee that she owned.1 According to plaintiff Desiree Durga, “[a]t that time I fully disclosed to AAA that my husband, Justin Durga, did not have a valid driver’s license.”2 Defendant’s insurance records reflect that plaintiffs have been “AAA Insured” since June 29, 2012. While defendant MemberSelect claims that Desiree Durga’s application for insurance contained a material misrepresentation, it has not produced a copy of her June 2012 application in this case. In response to a request for production of documents seeking to have defendant “[p]roduce the application for insurance that Plaintiff(s) filed with Defendants for the Policy,” defendant responded “This application for insurance no longer exists.” In the lower court, MemberSelect relied upon two documents, a “New Declaration Certificate” (certificate), and an “Automobile Application Addendum and Authorization” (addendum), the latter of which was only signed by AAA sales representative, Jeanine Michalski, at 9:53AM on February 25, 2013. Under a line item labeled “Driver Type,” the certificate states that Desiree Durga is “ASSIGNED”3 and Justin Durga is “NOT LICENSED”; and under another line item labeled “Years Licensed” it states “7” for Desiree Durga and “0” for Justin Durga. Contrarily, in the addendum, next to a line asking “Do all drivers have a valid driver’s license including drivers 16 years of age with a graduated license?” the box marked “Yes” is checked. Again, the addendum reflects a signature by Jeanine Michalski on the “Sales Representative” line, but the “Signature of Applicant” line above it is blank. In her affidavit, Desiree Durga’s avers that “I never stated that Justin Durga had a valid driver’s license, nor did I ever prepare or sign this Addendum.” The addendum indicates that the Durgas carried automobile insurance with Farmers Insurance Exchange through March 15, 2013, and consistent with the certificate, it appears MemberSelect first insured Desiree Durga’s Jeep for the February 25, 2013-August 25, 2013 policy term. This policy was renewed and continued for ten years through the February 25, 2023- August 25, 2023 term at issue in this litigation. Desiree Durga’s affidavit also avers that “every renewal from AAA or MemberSelect continued to state that Justin Durga was not licensed—as 1 The policy of insurance that was in effect on the date of the accident was issued by defendant MemberSelect. In various documents prepared by defendant in this matter, including documents sent to plaintiffs, it refers to itself as “MemberSelect Insurance Company,” “AAA In

30 June 4, 2025 No. 484 IN THE COURT OF APPEALS OF THE STATE OF OREGON Richard GRIFFITH and Reta Griffith, husband and wife, Plaintiffs-Appellants Cross-Respondents, v. PROPERTY AND CASUALTY INSURANCE COMPANY OF HARTFORD, Defendant-Respondent Cross-Appellant, and ALPINE ABATEMENT ASSOCIATES, INC., Defendant. Wallowa County Circuit Court 22CV10452; A181951 Wes Williams, Judge. On appellants’ petition for reconsideration filed March 28, 2025, and respondent’s response filed April 2, 2025. Opinion filed March 19, 2025. 339 Or App 40, 566 P3d 1235 (2025). Kelly Vance for petition. Thomas M. Christ and Sussman Shank LLP for response. Before Tookey, Presiding Judge, Kamins, Judge, and Jacquot, Judge. TOOKEY, P. J. Reconsideration allowed; former opinion modified and adhered to as modified. Cite as 341 Or App 30 (2025) 31 TOOKEY, P. J. Plaintiffs petition for reconsideration of our deci- sion in Griffith v. Property and Casualty Ins. Co. of Hartford, 339 Or App 40, 566 P3d 1235 (2025), asserting, among other reasons that we should reconsider our decision, that we “committed factual error in opining that all plaintiffs’ counsel did was file a complaint, which was contrary to the evidence.” Plaintiffs assert that “the trial court file shows far more activity than is depicted by the panel’s opinion.” We grant reconsideration, modify our previous opinion in two respects, and adhere to it as modified. First, in our opinion, we stated, “The complaint and Hartford’s answer were the only filings relating to Hartford in plaintiffs’ civil action. Shortly thereafter, plaintiffs and Hartford executed a ‘Release and Settlement Agreement,’ under which the parties settled plaintiffs’ insurance and breach of contract claims ‘and all related controversies.’ ” Id. at 42. We modify those sentences to read, “After Vance filed the civil action, plaintiffs and Hartford executed a ‘Release and Settlement Agreement,’ under which the parties settled plaintiffs’ insurance and breach of contract claims ‘and all related controversies.’ ” Second, in our opinion, we stated, “Prior to the par- ties’ settlement and release, there was minimal litigation by plaintiffs’ counsel (the filing of a complaint) with respect to plaintiffs’ claims against Hartford.” Id. at 48. We mod- ify that sentence so that it reads, “Prior to the parties’ set- tlement and release, litigation by plaintiffs’ counsel with respect to plaintiffs’ claims against Hartford included fil- ing a complaint and amended complaint, filing a reply to Hartford’s affirmative defenses, filings related to summary judgment, and oral argument before the court.” We have also considered the other reasons that plaintiffs assert that we should reconsider our opinion and have determined that reconsideration is not warranted. Reconsideration allowed; former opinion modified and adhered to as modified.