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VALLEY FORGE INS. v. HEALTH CARE MANAGEMENT

Nos. 09-1251, 09-1263, 09-1264, 09-1265, 09-1278, 09-1279.

616 F.3d 1086 (2010)

VALLEY FORGE INSURANCE COMPANY, a Pennsylvania insurance company; Zurich American Insurance, successor in interest to Zurich Insurance Company (U.S. Branch), Plaintiffs-Appellees/Cross-Appellants, v. HEALTH CARE MANAGEMENT PARTNERS, LTD., d/b/a O'Hara Regional Center for Rehabilitation; ORCR, Inc., d/b/a O'Hara Regional Center for Rehabilitation; Solomon Health Management, LLC, d/b/a Solomon Health Services, LLC; Hersch "Ari" Krausz; David Sebbag; V. Robert Salazar, Defendants-Appellants/Cross-Appellees.

United States Court of Appeals, Tenth Circuit.

August 16, 2010.

Attorney(s) appearing for the Case

Richard B. Podoll of Podoll & Podoll, P.C., Greenwood Village, CO (Gregory G. Sapakoff of Podoll & Podoll, P.C., Greenwood Village, CO; and T. Jeffrey Fitzgerald and Marie Elizabeth Williams of Faegre & Benson, LLP, Denver, CO, with him on the briefs) for Defendants-Appellants/Cross-Appellees.

J. Robert Hall of Meckler Bulger Tilson Marick & Pearson LLP, Chicago, IL (Michael M. Marick of Meckler Bulger Tilson Marick & Pearson LLP, Chicago, IL; Michael L. O'Donnell and Sean D. Baker of Wheeler Trigg O'Donnell LLP, Denver, CO; Patrick W. Kennison, Jr. of Kutak Rock LLP, Omaha, NE; and Kelly Sue Kilgore of Kutak Rock LLP, Denver, CO, with him on the brief) for Plaintiffs-Appellees/Cross-Appellants.

Before GORSUCH, McKAY, and CUDAHY, Circuit Judges.

GORSUCH, Circuit Judge.

When the government sued them for allegedly engaging in Medicare and Medicaid fraud, the appellants asked their insurance companies to provide them with a defense. The insurers promptly and unequivocally disputed their obligation to do so. Still, they agreed to supply a defense, subject to a reservation of rights permitting them to challenge their duty to defend at a later stage and, if successful in that challenge, to recoup the costs they...

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