IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
March 27, 2012
STATE NATIONAL INSURANCE COMPANY, PLAINTIFF,
THE COUNTY OF CAMDEN, DEFENDANTS.
THE COUNTY OF CAMDEN, COUNTERCLAIMANT AND THIRD-PARTY PLAINTIFF,
STATE NATIONAL INSURANCE COMPANY, COUNTERCLAIM-DEFENDANT AND NICHOLAS M. ANDERSON, THIRD-PARTY DEFENDANT, AND SCIBAL ASSOCIATES, INC., THIRD-PARTY DEFENDANT AND THIRD-PARTY COUNTERCLAIMANT. THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, INTERVENING
THE COUNTY OF CAMDEN AND SCIBAL ASSOCIATES, DEFENDANTS.
The opinion of the court was delivered by: Hillman, District Judge
MEMORANDUM OPINION & ORDER
This matter having come before the Court on the motion of The Insurance Company of the State of Pennsylvania for reconsideration*fn1 of the Court's June 17, 2011 denial of its motion for summary judgment*fn2 ; and The Court having denied ICSOP's motion without prejudice because issues of material fact remained as to numerous issues; and ICSOP arguing that in denying its motion for summary judgment the Court only considered its motion as to the County, and overlooked its alternative motion as to State National; and ICSOP arguing that the Court should have considered--and granted--its motion as to State National, because:
If, as State National argues, the County breached the State National policy by failing to adequately defend the Anderson Lawsuit, then neither State National or ICSOP has a duty to pay. But, as ICSOP's motion established, if the County did not breach the State National policy, then State National breached its duty to settle the Anderson Lawsuit within the limit of the State National policy, and therefore, must indemnify ICSOP.
(ICSOP Brief at 7); but
The Court finding that it did not overlook ICSOP's alternative basis for summary judgment as to State National; and The Court noting that because disputed facts exist as to the County's conduct, as found in the June 17, 2011 Opinion, the Court could not then, and cannot now, issue an opinion as to whether State National must indemnify ICSOP "if" it is found that the County did not breach the State National policy, because in the event that it is found that the County did breach the State National policy, any opinion as State National's duty to ICSOP would be advisory;*fn3 and Moreover, the Court further noting that the basis for ICSOP's motion makes conclusions on matters of law and fact (i.e., that State National undisputedly breached its duty to make a good faith attempt to settle the Anderson Lawsuit) not yet determined by the Court, see Step-Saver Data Systems, Inc. v. Wyse Technology, 912 F.2d 643, 647 (3d Cir. 1990) ("Construing a contract and making law without finding the necessary facts constitutes advisory opinion writing, and that is constitutionally forbidden."); and The Court finally noting that the scope of ICSOP's motion for reconsideration has transcended its original motion*fn4;
IT IS HEREBY on this 27th day of March , 2012 ORDERED that The Insurance Company of the State of Pennsylvania's motion for leave to file a reply brief  is GRANTED, and its motion for reconsideration  is DENIED.
NOEL L. HILLMAN, U.S.D.J.
At Camden, New Jersey