CAM FERENBACH, Magistrate Judge.
Defendant/Counterclaimant/Crossclaimant EVEREST NATIONAL INSURANCE COMPANY (hereinafter, "EVEREST") and Plaintiff/Counterdefendant CENTEX HOMES, and pursuant to Rule 15(a)(1) of the Federal Rules of Civil Procedure, hereby stipulate and agree that EVEREST may file a First Amended Counterclaim, a copy of which is attached as Exhibit "A" hereto.
Defendant, Counterclaimant and Cross-Claimant EVEREST NATIONAL INSURANCE COMPANY (hereinafter "Everest") by and through its counsel, answers the First Amended Complaint of plaintiff CENTEX HOMES (hereinafter "Plaintiff") as follows:
1. Answering paragraph 1, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and therefore, denies each and every allegation.
2. Answering paragraph 2, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and therefore, denies each and every allegation.
3. Answering paragraph 3, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
4. Answering paragraph 4, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
5. Answering paragraph 5, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
6. Answering paragraph 6, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation same.
7. Answering paragraph 7, Everest admits that it is that is a corporation organized and existing under the laws the State of Delaware, with its principal place of business in New Jersey. Everest further admits that it is an insurance company eligible to do business in Nevada. Everest further admits that eligible to do business as an insurer in the State of Nevada.
8. Answering paragraph 8, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
9. Answering paragraph 9, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and therefore, denies each and every allegation.
10. Answering paragraph 10, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
11. Answering paragraph 11, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every.
12. Answering paragraph 12, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
13. Answering paragraph 13, Everest admits that in the action captioned, Kachnik, et al. v. Centex Homes, District Court, Clark County, Nevada, Case No. A1-15-726385-D (the "Kachnik action"), it is alleged that Centex Homes "participated in" the design, development, construction, marketing and/or sale of the homes which are the subject of the action and which are located in a development known as Rose Lake, in Clark County, Nevada. With regard to all other allegations in paragraph 13, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies the remaining allegations.
14. Answering paragraph 14, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
15. Answering paragraph 15, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
16. Answering paragraph 16, Everest admits that it is aware of a document titled "Land Development Construction Agreement" purportedly between "Continental Landscaping & Sprinkler Company, Inc." and "Centex Homes", which reflects that it was executed in May, 2008, and which references the "Roselake" project. The content of the document speaks for itself. To the extent a further response is required, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
17. Answering paragraph 17, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
18. Answering paragraph 18, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and therefore, denies the same.
19. Answering paragraph 19, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and therefore, denies each and every allegation.
20. Answering paragraph 20, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and therefore, denies each and every allegation.
21. Answering paragraph 21, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
22. Answering paragraph 22, Everest admits that it is aware of a document titled "Land Development Construction Agreement," purportedly between Centex Homes and "Continental Landscaping & Sprinkler Company, Inc.," and which concerns the "Roselake" project, the "Rose Lake Units" subdivision and the "HOA Turnover" phase. With regard to the remaining allegations in paragraph 22, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies the remaining allegations.
23. Answering paragraph 23, Everest admits that it is aware of a document identified as a "Master Construction Agreement" purportedly between "Continental Landscaping & Sprinkler Co., Inc." and "Centex Homes dba Real Homes" and executed in September, 2006." Centex denies that the document specifically makes reference to any of the "Developments." Everest further admits that it is aware of a document titled "Land Development Construction Agreement" purportedly between "Continental Landscaping & Sprinkler Company, Inc." and "Centex Homes" which reflects it was executed in May, 2008, and which references the "Roselake" project. The content of each document speaks for itself. To the extent a further response is required, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
24 Answering paragraph 24, Everest admits that it issued policy numbers 1700003884-41 (effective 03/01/04-03/01/05), and 1700003884-51 (03/01/05-03/01/06) and 1700003884-61 (effective 03/01/06-03/01/07) and under which Continental Landscaping & Sprinkler Co. is an insured.
25. Answering paragraph 25, Plaintiff's allegation calls for a legal conclusion and no response is required. However, to the extent a further response is required, Everest denies that the contracts of insurance it issued specifically designate Plaintiff as an "additional insured."
26. Answering paragraph 26, Everest admits that it agreed to provide Plaintiff a defense in the Kachnik action under policy numbers 1700003884-41 and 1700003884-61 under a full and complete reservation of rights. Everest further admits that it is obligated to defend Plaintiff against such claims that are potentially covered under said policies and that other insurers have a duty to defend Centex along with Everest. Everest denies that the terms, conditions and provisions of policy number 1700003884-51 require that Everest provide Plaintiff a defense in the Kachnik action. As to the remaining allegations in paragraph 26, Everest denies the remaining allegations.
27. Answering paragraph 27, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
28. Answering paragraph 28, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
29. Answering paragraph 29, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
30. Answering paragraph 30, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
31. Answering paragraph 31, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
32. Answering paragraph 32, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
33. Answering paragraph 33, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
34. Answering paragraph 34, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
35. Answering paragraph 35, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
36. Answering paragraph 36, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and therefore, denies each and every allegation.
37. Answering paragraph 37, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
38. Answering paragraph 38, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
39. Answering paragraph 39, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
40. Answering paragraph 40, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
41. Answering paragraph 41, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
42. Answering paragraph 42, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
43. Answering paragraph 43, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
44. Answering paragraph 44, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
45. Answering paragraph 45, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation
46. Answering paragraph 46, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
47. Answering paragraph 47, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and therefore, denies each and every allegation.
48. Answering paragraph 48, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
49. Answering paragraph 49, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
50. Answering paragraph 50, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
51. Answering paragraph 51, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
52. Answering paragraph 52, Everest admits that plaintiff homeowners filed a "First Amended Complaint" in the Kachnik action. Everest further admits that the plaintiff homeowners allege in their First Amended Complaint that their homes have defects which was caused by the acts or omissions in the "design, specification, planning, supervision observation of construction, construction, development and/or improvement" of the homes. With respect to the remaining allegations in paragraph 52, Everest further responds that the First Amended Complaint in the Kachnik action speaks for itself. To the extent a further response is required, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
53. Answering paragraph 53, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
54. Answering paragraph 54, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
55. Answering paragraph 55, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
56. Answering paragraph 56, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
57. Answering paragraph 57, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
58. Answering paragraph 58, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
59. Answering paragraph 59, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
60. Answering paragraph 60, Everest admits that it received a correspondence from Koeller, Nebeker, Carlson & Hauluck, LLP, dated August 20, 2014, which document speaks for itself, and that Everest considered Centex's correspondence in making its coverage determination as to the tender in connection with the Kachnick action. As to the remaining allegations in paragraph 60, these are Centex's legal contention(s) to which a response is not required.
61. Answering paragraph 61, Everest denies that Centex has incurred or will be forced to incur costs, fees or expenses due to any conduct by Everest. With respect to the remaining allegations in paragraph 61, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies the remaining allegations.
62. Answering paragraph 62, Everest admits that it received a correspondence dated August 20, 2014, from Koeller, Nebeker, Carlson & Hauluck, LLP, tendering Centex's defense and indemnity of the action.
63. Answering paragraph 63, Everest admits that pursuant to an October 29, 2014 correspondence, Everest agreed to defend Plaintiff in the Kachnik action under policy numbers 1700003884-41 and 1700003884-61 under a full and complete reservation of rights, including the right to seek reimbursement of defense fees and costs which are not potentially covered under the policies.
Everest denies that agreed to provide Plaintiff a defense in the Kachnik action under policy number 1700003884-51. Everest further denies that it "limited its obligation" to pay toward the defense a portion of the sums owed.
64. Answering paragraph 64, Everest admits it has expended approximately $328,319.25 to provide Plaintiff a defense in the Kachnik action.
65. Answering paragraph 65, Everest admits that it has a duty to pay the reasonable defense fees and costs incurred for Plaintiff's defense in the Kachnik action which are potentially covered under the policies issued by Everest and under which Everest agreed to provide Plaintiff a defense under a full and complete reservation of rights, including the right to seek reimbursement of defense fees and costs which are not potentially covered under the policies.
66. Answering paragraph 66, Everest denies that Plaintiff was forced to expend, or will be forced to expend, time or money for its defense in the Kachnik action due to any failure by Everest.
67. Answering paragraph 67, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
68. Answering paragraph 68, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
69. Answering paragraph 69, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
70. Answering paragraph 70, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
71. Answering paragraph 71, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
72. Answering paragraph 72, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
73. Answering paragraph 73, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
74. Answering paragraph 74, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
75. Answering paragraph 75, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
76. Answering paragraph 76, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
77. Answering paragraph 77, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
78. Answering paragraph 78, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
79. Answering paragraph 79, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
80. Answering paragraph 80, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
81. Answering paragraph 81, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
82. Answering paragraph 82, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
83. Answering paragraph 83, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
84. Answering paragraph 84, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
85. Answering paragraph 85, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
86. Answering paragraph 86, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
87. Answering paragraph 87, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
88. Answering paragraph 88, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies each and every allegation.
89. Answering paragraph 89, Everest repeats and re-alleges each and every answer set forth in paragraphs 1-88 as though fully set forth herein.
90. Answering paragraph 90, Everest admits that Plaintiff requested a defense from Everest regarding the Kachnik action. Everest further admits that it agreed to provide Plaintiff with a defense under policy numbers 1700003884-41 and 1700003884-61 under a full and complete reservation of rights, including the right to seek reimbursement of defense fees and costs which are not potentially covered under the policies. Everest denies that Plaintiff performed the obligations or otherwise satisfied the relevant conditions precedent to be entitled to a defense under policy number 1700003884-51. To the extent the allegations in paragraph 90 do not concern Everest, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies the remaining allegations.
91. Answering paragraph 91, to the extent the allegations contained therein relate to Everest, Everest denies each and every allegation. With regard to all other allegations therein, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies remaining same.
92. Answering paragraph 92, to the extent the allegations contained therein relate to Everest, Everest denies each and every allegation. With regard to all other allegations therein, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies the remaining allegations.
93. Answering paragraph 93, Everest repeats and re-alleges each and every answer set forth in paragraphs 1-92 as though fully set forth herein.
94. Answering paragraph 94, Everest denies the allegations contained therein, save and except admits that a duty of good faith exists between an insurer and insured.
95. Answering paragraph 95, to the extent the allegations contained therein relate to Everest, Everest denies each and every allegation. With regard to all other allegations therein, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies the remaining allegations.
96. Answering paragraph 96, to the extent the allegations contained therein relate to Everest, Everest denies each and every allegation. With regard to all other allegations therein, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies the remaining allegations.
97. Answering paragraph 97, to the extent the allegations contained therein relate to Everest, Everest denies each and every allegation. With regard to all other allegations therein, Everest lacks sufficient information or knowledge to form a belief as to the truth or falsity of those allegations contained therein and, therefore, denies the remaining allegations.
98. Answering paragraph 98, to the extent the allegations contained therein relate to Everest, Everest denies each and every allegation. With regard to all other allegations therein, Everest lacks sufficient information or knowledge to form a belief as to the truth or falsity of those allegations and, therefore, denies the remaining allegations.
99. Answering paragraph 99, to the extent the allegations contained therein relate to Everest, Everest denies each and every allegation. With regard to all other allegations therein, Everest lacks sufficient information or knowledge to form a belief as to the truth or falsity of those allegations and, therefore, denies the remaining allegations.
100. Answering paragraph 100, to the extent the allegations contained therein relate to Everest, Everest denies each and every allegation. With regard to all other allegations therein, Everest lacks sufficient information or knowledge to form a belief as to the truth or falsity of those allegations and, therefore, denies the remaining allegations.
101. Answering paragraph 101, to the extent the allegations contained therein relate to Everest, Everest denies each and every allegation. With regard to all other allegations therein, Everest lacks sufficient information or knowledge to form a belief as to the truth or falsity of those allegations and, therefore, denies the remaining allegations.
102. Answering paragraph 102, Everest repeats and re-alleges each and every answer set forth in paragraphs 1-101 as though fully set forth herein.
103. Answering paragraph 103, to the extent the allegations contained therein relate to Everest, Everest denies each and every allegation. With regard to all other allegations therein, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies the remaining allegations.
104. Answering paragraph 104, to the extent the allegations contained therein relate to Everest, Everest denies each and every allegation. With regard to all other allegations therein, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies the remaining allegations.
105. Answering paragraph 105, to the extent the allegations contained therein relate to Everest, Everest denies each and every allegation. With regard to all other allegations therein, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies the remaining allegations.
106. Answering paragraph 106, to the extent the allegations contained therein relate to Everest, Everest denies each and every allegation. With regard to all other allegations therein, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies the remaining allegations.
107. Answering paragraph 107, Everest repeats and re-alleges each and every answer set forth in paragraphs 1-106 as though fully set forth herein.
108. Answering paragraph 108, Everest admits that pursuant to the allegations in the Complaint, a controversy exists between itself and Plaintiff concerning certain alleged obligations under the contracts of insurance issued by Everest. With regard to all other allegations therein, Everest lacks sufficient information or knowledge to form a belief as to the truth or falsity of those allegations and, therefore, denies the remaining allegations.
109. Answering paragraph 109, to the extent the allegations contained therein relate to Everest, Everest admits that denies each of Plaintiff's contentions. With regard to all other allegations therein, Everest lacks sufficient information or knowledge to form a belief as to the truth or falsity of those allegations and, therefore, denies the remaining allegations.
110. Answering paragraph 110, Everest admits that by way of the Complaint, Plaintiff seeks a judicial determination as to the issues pled therein. Everest denies that Plaintiff is entitled to any such judicial determination as to Everest.
111. Answering paragraph 111, to the extent the allegations contained therein relate to Everest, Everest denies each and every allegation. With regard to all other allegations therein, Everest is without sufficient knowledge or information necessary to form a belief as to the truth or falsity of the allegations contained therein and, therefore, denies the remaining allegations.
As to Plaintiff's prayer for relief and for all causes of action, Everest denies that Plaintiff to the relief sought.
As for separate affirmative defenses, Everest alleges the following:
Plaintiff's claims are barred, in whole or in part, to the extent that the Complaint, and each purported cause of action therein, fails to state facts sufficient to constitute a cause of action against Everest.
Plaintiff's claims are barred, in whole or in part, by the terms, exclusions, conditions, definitions, declarations, endorsements, and/or limitations contained in the policies identified in plaintiff's complaint and purportedly issued by Everest.
Plaintiff's claims are barred, in whole or in part, because of a failure to perform conditions or obligations under the Everest policies.
Plaintiff's claims are barred, in whole or in part, to the extent that any deductibles and/or self-insured retentions are included in the Everest policies and which have not been properly satisfied.
Plaintiff's claims are barred, in whole or in part, to the extent that the Everest policies are exhausted or otherwise impaired.
Any amounts allegedly recoverable under the Everest policies, if any, must be reduced or offset by recoveries plaintiff has already obtained, or may in the future obtain, from other sources including, but not limited to, settlements with other insurers and sureties, subcontractors, and those subcontractors' insurers and sureties.
Plaintiff's claims are barred, in whole or in part, to the extent that Everest's rights of subrogation and contribution have been impaired.
Plaintiff's claims are barred, in whole or in part, to the extent that any named insureds and/or alleged additional insured failed to disclose or otherwise concealed or misrepresented facts known to it which were material to the risk allegedly underwritten by Everest.
Plaintiff's claims are barred, in whole or in part, to the extent that other insurance covering the alleged claims is obligated to respond.
Plaintiff's claims are barred, in whole, or in part, to the extent that they arise out of claims against any person or entity not an insured under the Everest policies.
To the extent that Everest is found to have any obligation with regard to the damages alleged by plaintiff in the present action, a proper allocation of the loss as between Everest and other insurers is required. Such allocation may result in no sums being allocated to the Everest policies.
To the extent that Everest is found to have any obligation with regard to the damages alleged by plaintiff in the present action, Everest has already contributed more than its equitable share toward Centex's defense and/or indemnity.
Everest has no obligation to contribute towards attorney's fees sought by plaintiff to the extent that the hourly rate charged was unreasonable and excessive.
Plaintiff's claims are barred, in whole or in part, to the extent that any defense fees and costs were incurred prior to the time the defense was tendered, if ever tendered, to Everest.
To the extent that coverage is proved to exist under the Everest policies for plaintiff's alleged claims, Everest is not required to reimburse, indemnify or otherwise make payment for any unreasonable, excessive, improper, unnecessary, or unrelated costs or sums incurred by plaintiff.
Plaintiff's claims are barred, in whole or in part, because the named insured and/or alleged additional insured have failed to mitigate, minimize, or avoid any damages allegedly sustained, and any recovery against Everest must therefore be reduced by the amount of damages incurred as a result of that failure.
Plaintiff's claims are barred, in whole or in part, to the extent that the alleged damage for which coverage is sought did not take place during the effective dates of the Everest policies.
Plaintiff's claims are barred, in whole or in part, to the extent that any insured made any payments, assumed any obligation, or incurred any expense, other than for first aid, without Everest's consent.
Plaintiff's claims are barred and/or plaintiff is precluded from seeking any relief asserted herein by the doctrines of waiver, estoppel, and/or laches.
Plaintiff is barred from seeking any equitable relief by reason of its own unclean hands.
At all times material herein, Everest acted reasonably and in good faith toward the plaintiff based upon all relevant facts and circumstances known to it at the time, and fully performed all terms, conditions, covenants and promises to be performed pursuant to the applicable policies, except where such performance was excused, discharged or prevented.
The interpretation of any applicable Everest policy is based upon genuinely disputable issue(s) and/or question(s) of law or fact.
Everest is informed and believes and thereon alleges that the claim for extra contractual and/or punitive damages and/or the award and/or recovery of extra contractual and/or punitive damages is unconstitutional under the United States and Nevada Constitutions.
Everest reserves the right to amend, supplement, alter or change its answer and affirmative defenses upon revelation of more definitive facts by plaintiff and/or upon discovery and investigation in this matter.
WHEREFORE, having fully responded to the subject complaint, Everest prays:
COMES NOW defendant/counterclaimant EVEREST NATIONAL INSURANCE COMPANY (hereinafter "Everest"), by and through its counsel, and for its First Amended Counterclaim against plaintiff/counterdefendant CENTEX HOMES (hereinafter, "Centex") alleges as follows:
1. Everest is informed and believes, and on that basis alleges, that at all times relevant, Centex was and is a Nevada general partnership with its principal place of business in Atlanta, Georgia.
2. Everest is an organization organized under the laws of the State of Delaware, with its principal place of business in New Jersey. Everest is as an insurer eligible to do business in the State of Nevada.
3. This Court has original jurisdiction founded on diversity of citizenship pursuant to 28 U.S.C. § 1332, because the matters in controversy exceed $75,000.00, exclusive of interest and costs, and because complete diversity exists between Centex and Everest.
4. Venue is proper in this Court in accordance with 28 U.S.C. § 1391.
5. Everest issued certain insurance policies to Continental Landscaping & Sprinkler Company Co. (hereinafter, "Continental") identified by policy number 1700003884-041, effective March 1, 2004 to March 1, 2005, and 1700003884-061, effective March 1, 2006 to March 1, 2007 (hereinafter, collectively the "Everest Policies").
6. Everest is informed and believes, and on that basis alleges, that Centex participated in the construction of one or more residential developments known as Terraces, Berkshire Estates, Berkshire Estates II and Cantura, which are collectively herein referred to as "the developments" and which are located in Las Vegas, Nevada.
7. Everest is informed and believes, and on that basis alleges, Continental contracted with Centex to provide certain fine grading services and materials for the building of one or more of the developments.
8. Certain homeowners in the developments brought an action captioned, Kachnik, et al. v. Centex Homes, et al., Eighth Judicial District Court, Clark County, Nevada, Case No. A-15-726385-D (hereinafter the "Kachnik action"), against Centex and alleging, among other things, that homes in one or more of the developments contained were defective and negligently constructed and that these defects caused damages for which Centex is liable.
9. Everest received a correspondence from Koeller, Nebeker, Carlson & Hauluck, LLP (hereinafter, the "Koeller law firm") who was representing Centex with respect to the Kachnik action. By way of the correspondence, it was requested that Everest provide Centex a defense and indemnity under the Everest Policies in the Kachnik action. The Koeller firm purported to enclose copies of certain documents with the correspondence but not contract(s) pursuant to which Continental purportedly performed work at the developments.
10. In response to the Koeller law firm's tender of the Kachnik action on Centex's behalf, Everest accepted the tender and agreed to provide a "complete defense," and which "include covered and uncovered claims," and immediately defended Centex as an additional insured under the Everest Policies through the Koeller law firm and under a full and complete reservation of rights, including, but not limited to, the right to seek reimbursement from Centex for defense fees and costs paid by Everest or otherwise incurred for the defense of claims asserted against Centex in the action that are not even potentially covered under the Everest Policies. Upon its receipt of Everest's correspondence wherein it agreed to defend Centex, Centex did not communicate an objection to Everest's reservation of its right to seek such reimbursement from Centex.
11. Everest is informed and believes, and on that basis alleges, that the claims in the Kachnik action seek damages from Centex for property damage arising out of the work or operations of various subcontractors, and not only Continental, with whom Centex contracted to provide certain work, services and/or materials for the building of one or more of the developments.
12. Everest has paid and otherwise incurred in excess of $300,000 in defense fees and costs on behalf of Centex to provide Centex the defense in the Kachnik action.
13. Everest hereby re-alleges and incorporates by reference each of the allegations contained in all preceding paragraphs of this First Amended Counterclaim as though fully set forth herein.
14. Everest has defended Centex through the Koeller law firm against the claims in the Kachnik action and paid and otherwise incurred defense fees and costs incurred by Centex in defense of the action. Everest did not pay or incur these sums as a volunteer. When Everest agreed to defend Centex, Everest explicitly reserved the right to seek reimbursement from Centex for defense fees and costs paid by Everest for the defense of claims asserted against Centex in the Kachnik action that are not potentially covered under the Everest Policies.
15. Certain claims asserted against Centex in the Kachnik action are not potentially covered under the Everest Policies.
16. Everest has paid and otherwise incurred defense fees and costs to provide Centex the defense in the Kachnik action against claims which are not even potentially covered under the Everest Policies. Centex has, therefore, been unjustly enriched by Everest's payments.
17. As a result of Centex's unjust enrichment, a quasi-contractual right of reimbursement has arose in favor of Everest in the amount Everest paid and otherwise incurred for the defense of Centex against claims in the Kachnik action which are not potentially covered under the Everest Policies. The precise amount of the reimbursement that is appropriate will be subject to proof at trial.
WHEREFORE, Everest requests the following relief from this Court:
1. For a judgment in favor of Everest for reimbursement in the amount to be determined at trial, but in any event in an amount greater than $75,000 for defense fees and costs that Everest paid or otherwise incurred under the Everest Policies to defend Centex against claims in the Kachnik action which are not potentially covered under the Everest Policies;
2. For interest at a legal rate until the judgment is paid;
3. For attorneys' fees and costs; and
4. For such other and further relief as the court deems just and proper.
