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Nautilus Insurance Co. v. Access Medical, LLC

United States Court of Appeals, Ninth Circuit

July 2, 2019

Nautilus Insurance Company, Plaintiff-Appellant/ Cross-Appellee,
v.
Access Medical, LLC; Robert Clark Wood II; Flournoy Management, LLC, Defendants-Appellees/ Cross-Appellants.

          D.C. No. 2:15-cv-00321-JAD-GWF

          For Appellant/Cross-Appellee Nautilus Insurance Company: Linda Wendell Hsu Selman Breitman LLP.

          For Appellees/Cross-Appellants Access Medical LLC and Robert Clark Wood II: Jordan P. Schnitzer The Schnitzer Law Firm, L. Renee Green Kravitz Schnitzer & Johnson, Chtd.

          For Defendant-Appellee/Cross-Appellant Flournoy Management LLC: James E. Harper, Harper Selim.

          Before: Ronald M. Gould, Sandra S. Ikuta, and Ryan D. Nelson, Circuit Judges.

         ORDER CERTIFYING QUESTION TO THE NEVADA SUPREME COURT

         SUMMARY[*]

         Certified Question to Nevada Supreme Court

         The panel certified the following question of state law to the Nevada Supreme Court:

Is an insurer entitled to reimbursement of costs already expended in defense of its insureds where a determination has been made that the insurer owed no duty to defend and the insurer expressly reserved its right to seek reimbursement in writing after defense has been tendered but where the insurance policy contains no reservation of rights?

          ORDER

          RONALD M. GOULD, CIRCUIT JUDGE

         Pursuant to Rule 5 of the Nevada Rules of Appellate Procedure, we respectfully certify to the Nevada Supreme Court the question of law set forth in Section III of this order. This question of law will be determinative of a question pending before this court and there is no controlling precedent in the decisions of the Nevada state courts.

         I.

         We summarize the material facts. After a business partnership went sour, Ted Switzer filed a cross-complaint against Access Medical, Flournoy, and Robert Clark Wood II (collectively "Insureds") in California state court. In the cross-complaint, Switzer brought thirty-one claims, including a purported claim for interference with prospective economic advantage because of the Insureds' alleged interference with relationships with hospitals with which Switzer "enjoyed a long-standing and mutually beneficial relationship." Specifically, Switzer alleged that: (1) Insureds "acted to disrupt the relationship between Switzer" and various hospitals; (2) the wrongful acts "resulted in injury to the personal and business reputation" of Switzer; (3) the wrongful acts caused various vendors to stop using Switzer's business and to use Access Medical's instead; and (4) the wrongful acts were malicious and done with the intent to injure Switzer's professional and business well-being. Although never referenced in the cross-complaint, at some point an email written by Jacqueline Weide, a representative of Access Medical and Flournoy, was uncovered. In the ...


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