United States District Court, D. Oregon
J. BROWN United States District Judge
Judge Youlee Yim You issued Findings and Recommendation
(F&R) (#28 6) on November 14, 2016, in which she
recommends the Court deny Plaintiff's Motion (#250) to
Require Wausau to Comply With This Court's Orders By
Paying Defense Costs on Current Basis. Plaintiff Siltronic
Corporation filed timely Objections to the Findings and
Recommendation. The matter is now before this Court pursuant
to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil
any party objects to any portion of the Magistrate
Judge's Findings and Recommendation, the district court
must make a de novo determination of that portion of
the Magistrate Judge's report. 28 U.S.C. §
636(b)(1). See also Dawson v. Marshall, 561 F.3d
930, 932 (9th Cir. 2009); United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en
filed this action against its insurance
carriersfor declaratory judgment and breach of
contract to determine and to allocate financial
responsibility pursuant to the insurance policies issued by
the carriers for environmental clean-up claims arising out of
the Portland Harbor Superfund Site.
Insurance Company of Wausau (Wausau) issued several
Comprehensive General Liability Policies to Plaintiff for the
period between 1978 and 1986. Wausau defended Plaintiff on
various environmental claims until September 2009 when Wausau
concluded the indemnity limits of the policies covering the
period from 1980-86 were exhausted.
issue is the interpretation of two Orders issued by
Magistrate Judge Janice M. Stewart.
first Order at issue is Magistrate Judge Stewart's
Opinion and Order (#194) issued September 15, 2015, in which
she granted in part and denied in part Plaintiff's Motion
(#141) for Partial Summary Judgment against Defendant Wausau.
Magistrate Judge Stewart held Wausau had a duty to defend
claims for environmental damage under the policy issued for
coverage during 1978-79, but Wausau did not have any
obligation under the same policy to pay defense costs
incurred by Plaintiff prior to its tender of defense on June
23, 2003. Magistrate Judge Stewart deferred the issue whether
Wausau had breached its duty to defend under the 1978-79
policy after the tender of defense on June 23, 2003.
second Order at issue is Magistrate Judge Stewart's
Opinion and Order (#237) issued March 31, 2016, in which she
held, in part, that Plaintiff is entitled to select
"independent counsel" at Wausau's expense.
on these Orders, Plaintiff filed the instant Motion (#250) to
require Wausau to reimburse Plaintiff for certain expenses
and fees incurred in connection with the underlying
environmental clean-up. In its Motion Plaintiff sought
reimbursement for $90, 278 plus interest, which was an
expense Plaintiff incurred as part of its allocated share of
the funding for Phase 1 of the environmental clean-up.
Plaintiff also seeks reimbursement for consulting fees
incurred by its counsel for work performed by an
environmental consulting firm.
noted, Magistrate Judge You recommends in the F&R that
this Court deny Plaintiff s Motion on the grounds that (1)
the Court has not determined Wausau breached its duty to
defend pursuant to the 1978-79 policy; (2) the Court must
determine an expense was reasonable and necessary before
compelling payment, and this issue was not raised nor was
evidence submitted to resolve it; and (3) there was not any
evidence submitted to show that the requested consulting fees
were incurred in connection with the defense of the
underlying environmental action rather than incurred in
litigating coverage disputes (and the latter would not be
covered under the policy).
notes in its Objections that Wausau reimbursed Plaintiff for
the $90, 278 expense after Magistrate Judge You issued the
F&R. Plaintiff points out that Wausau, however, failed to
pay any ...