The specific Homeowner Claims which Cincinnati has refused to defend are summarized in the parties' summary judgment memoranda and will not be detailed herein. AMSCO received Chapter 40 notices for each of the Homeowner Claims at issue in this case. Pursuant to Chapter 40, a contractor must also forward the notice to each subcontractor and/or supplier “whom the contractor reasonably believes is responsible for a defect specified in the notice.”. Prior to filing a civil complaint, Chapter 40 requires a homeowner to file a Notice of Compliance, setting forth in reasonable detail the defects in the home and the known nature and extent of the damages caused by such defects, and providing the contractor the opportunity to inspect the residence and repair any damages found. Others have been asserted pursuant to “Chapter 40,” a specific Nevada statute governing construction defect claims. Some of the Homeowner Claims have ripened into civil litigation in the Nevada State courts. To negate its duty to defend, an insurer must, therefore, do more than point to a potential lack of insurance coverage regarding one of the claims at issue (or a potentially applicable policy exclusion) instead, the insurer must demonstrate that none of the allegations of the underlying claim is potentially covered (or that a policy exclusion conclusively applies to exclude all potential for such coverage). Sharon Steel, 931 P.2d at 133 (noting the “defense duty arises when the insurer ascertains facts giving rise to potential liability under the insurance policy”). Accordingly, the insurer's duty to defend arises if there is potential, not actual, liability. Woodside Homes, 448 F.Supp.2d 1275, 1278 (D.Utah 2006) (“If the duty to defend attaches to any claim alleged in a complaint, the insurer is obligated to undertake the defense of its insured for all claims raised in the complaint.”). if proved, could result in liability under the policy.” Nova Cas. 
This broad duty to defend is triggered when “the allegations in the underlying complaint. Veigel, 564 F.3d 695, 701 (5th Cir.2009) (holding that state declaratory judgment act is not “ ‘controlling substantive law’ ” in a diversity case) cf. 2137, 132 L.Ed.2d 214 (1995) (holding that “district courts' decisions about the propriety of hearing declaratory judgment actions, which are necessarily bound up with their decisions about the propriety of granting declaratory relief, should be reviewed for abuse of discretion”) AG Acceptance Corp. §§ 2201, 2202, is neither precluded nor controlled by procedural law”), abrogated on other grounds by Wilton v. Holbrook, 867 F.2d 1330, 1332–33 (11th Cir.1989) (observing that “invocation of the federal Declaratory Judgment Act, 28 U.S.C. 97, 58 L.Ed.2d 119 (1978) (holding that under the Erie doctrine, a state declaratory judgment statute is procedural, not substantive))) Cincinnati Ins. federal law determines whether a federal court can and may properly render a declaratory judgment.” (footnotes omitted) (citing Farmers Alliance Mutual Insurance Co. Declaratory Judgments § 23:8, at 19–20 (2007) (“Where diversity of citizenship is the jurisdictional basis of a declaratory judgment action. 
§§ 78B–6–401 through 78B–6–412 (2008).ĭiversity actions seeking declaratory relief in this court are generally footed upon the federal Declaratory Judgment Act, 28 U.S.C.
#HOW TO CITE AMSCO CODE#
at 2 ¶ 1.) The Utah declaratory judgment statute as revised by the Utah Legislature in 2008 and in effect at the time Cincinnati's Complaint was filed is found at Utah Code Ann. at 4 ¶ 6), but recites that “his action is filed pursuant to the Declaratory Judgment Action Statute, § 78–33–1, Utah Code Ann.
§ 1332(a) (2006 ed.), as well as the Declaratory Judgment Act, 28 U.S.C. 2), at 2 ¶ 1.) Cincinnati's Complaint invokes this court's diversity jurisdiction, see 28 U.S.C.
(Complaint for Declaratory Judgment, filed J(CM/ECF No.
0 kommentar(er)
