The Shaw Group Inc et al v. Zurich American Insurance Company et al

Filing 258

ORDER denying Shaw's 202 Motion to Strike Paragraph 6 of the Declaration of Kimberly A. Griffith and 211 Motion to Strike Paragraph 4 of the Declaration of Pamela Asbury. Signed by Magistrate Judge Richard L. Bourgeois, Jr on 3/10/2014. (SMG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
THE SHAW GROUP, INC., et al.

CIVIL ACTION

VERSUS

NO. 12-257-JJB-RLB

ZURICH AMERICAN INSURANCE
COMPANY, et al.

ORDER
Before the court are several interrelated discovery motions filed by plaintiffs The Shaw
Group Inc. and Shaw Process Fabricators, Inc. (collectively, “Shaw”), defendant North American
Specialty Insurance Company (“NAS”), and third party Westchester Fire Insurance Company
(“Westchester”) concerning the “your product” endorsements in insurance policies issued to
Shaw by NAS and Westchester in 2008. This Order concerns Shaw’s Motion to Supplement
Memoranda (R. Doc. 237); 1 Shaw’s Motion to Strike Paragraph 6 of the Declaration of Kimberly
A. Griffith, Docket No. 199-2 (R. Doc. 202); 2 and Shaw’s Motion to Strike Paragraph 4 of the
Declaration of Pamela Asbury, Docket No. 185-3 (R. Doc. 211). 3
I.

Shaw’s Motion to Supplement
Shaw seeks leave of court, under Local Rule 7.3, to supplement three memoranda:

Shaw’s memorandum in support of its motion to compel Westchester to comply with subpoenas
(R. Doc. 173), Shaw’s memorandum in support of its motion to compel deposition testimony
from NAS (R. Doc. 187), and Shaw’s opposition to NAS’s motion for protective order (R. Doc.
210). (R. Doc. 237). Shaw seeks to supplement the record with the arguments presented in its

1

Shaw seeks to supplement R. Docs. 173, 187, and 210. The motion is opposed. (R. Doc. 239).
The motion is opposed. (R. Doc. 219).
3
The motion is opposed. (R. Doc. 213).
2

Motion to Supplement as well as two 2011 emails obtained in discovery from a third-party,
AmWINS, which Shaw represents is the “wholesale broker who was involved in selling Shaw
the Westchester and NAS policies.” (R. Doc. 237-1 at 3). Shaw claims that the emails support
its substantive position regarding the meaning of the “your product” endorsements in the
Westchester and NAS policies (R. Doc. 237-1 at 4). Shaw characterizes the emails as “new
evidence” in support of its arguments. (R. Doc. 237 at 2).
NAS opposes the motion, stating that Shaw has moved the court to “admit” a 2011 email
string that “is not admissible or relevant to explain the meaning of terms in other earliernegotiated contracts.” (R. Doc. 239 at 1-2). NAS argues that Shaw’s motion should be denied
and the court should not “admit” into the record the 2011 emails obtained by Shaw in discovery
from AmWINS. (R. Doc. 239 at 2).
For the purpose of the instant motion, the court is not concerned with whether Shaw’s
characterization of the import of those emails is correct or whether NAS’s argument that they are
neither admissible or relevant is proper. The issue now before the court is whether Shaw should
be granted leave to submit additional arguments, as well as the 2011 emails, in further support of
its motions to compel and its opposition to NAS’s motion for protective order. NAS’s argument
that these emails are irrelevant is noted and will be considered by the court in its ruling on the
underlying discovery motions. NAS has not demonstrated that it would be prejudiced by the
granting of the motion. If desired, NAS can move, at a more appropriate point in this
proceeding, to exclude from evidence any documents submitted by Shaw in support of summary
judgment or for use at trial.

2

Accordingly, IT IS ORDERED that Shaw’s Motion to Supplement Memoranda (R. Doc.
237) is GRANTED. As these materials are already part of the docket in this matter, no further
action from the Clerk’s office is required.
II.

Shaw’s Motions to Strike Paragraph 6 of the Griffith Declaration and Paragraph 4
of the Asbury Declaration
Shaw filed two motions seeking to strike paragraphs from the declarations attached to

opposition briefs submitted by Westchester and NAS. There is no procedural rule governing
motions to strike portions of a declaration attached to a memorandum in opposition to a
discovery motion. 4
The declarations at issue are by individuals purporting personal knowledge of the
insurance policies at issue. 5 Paragraph 6 of the Griffith Declaration purports to provide
Westchester’s intent with regard to the “your product” endorsement found in the 2008 policy it
issued to Shaw. 6 Similarly, Paragraph 4 of the Asbury Declaration purports to provide NAS’s
intent with regard to the “your product” endorsement found in the 2008 policy it issued to
Shaw. 7 Shaw argues that the foregoing paragraphs submitted in support of Westchester’s and

4

Shaw did not bring its motions to strike under Rule 12(f), which authorizes a court to “order stricken
from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.” Fed. R. Civ. P. 12(f). The court need not decide, therefore, whether a declaration in support of a
motion or opposition brief is a “pleading” for the purpose of that rule. See Fed. R. Civ. P. 7(a) (defining
“pleadings” allowed under the Federal Rules of Civil Procedure).
5
Kimberly A. Griffith, the declarant in support of the Westchester opposition brief, states that she is
“Vice President of casualty insurance” for Westchester and was “the underwriter involved with placing
the umbrella liability policy issued by [Westchester] to [Shaw] from 1996 through the present.” (R. Doc.
199-2 at 1). Pamela Asbury, the declarant in support of the NAS motion for protective order, states that
she was “a senior underwriter and Assistant Vice President for the Casualty Department for Endurance
U.S. Operations (“Endurance”) and was the lead underwriter involved with placing the [NAS] policies
issued to [Shaw] from September 1, 2006, to September 1, 2010.” (R. Doc. 185-3 at 1).
6
Paragraph 6 of the Griffith Declaration provides the following: “It was not the intent of [Westchester] to
follow-form to the Amendment of Damage to Property Endorsement in the Zurich policy.” (R. Doc. 1992 at 2).
7
Paragraph 4 of the Asbury Declaration provides the following: “It was NAS’s intent to follow-form to
the Westchester ‘your product’ exclusion, and not the Zurich ‘your product’ exclusion.” (R. Doc. 185-3
at 2).

3

NAS’s opposition briefs should be stricken because they attempt “to establish the unexpressed,
unilateral intent” of those parties with regard to the “your product” endorsements in the
respective policies. (R. Docs. 202 at 1, 211 at 1).
The parties’ arguments regarding the instant motions focus on an ultimate issue on the
merits—the meaning of the “your product” endorsement found in the NAS and Westchester
policies issued in 2008. The court need not decide now whether the declarations have any
probative value with regard to that ultimate issue. Shaw can move, at a more appropriate point
in this proceeding, to exclude the Griffith and Asbury declarations from evidence if Westchester
or NAS, respectively, seek to submit those declarations in support of summary judgment or for
use at trial. The Court sees no grounds to exclude those statements from the record at this stage
of the litigation. The Court will afford the arguments in Shaw’s motions to strike, as well as the
arguments in Westchester’s and NAS’s opposition memoranda to that motion, the appropriate
consideration in resolving the underlying discovery motions.
Accordingly, IT IS ORDERED that Shaw’s Motion to Strike Paragraph 6 of the
Declaration of Kimberly A. Griffith, Docket No. 199-2 (R. Doc. 202) is DENIED and Shaw’s
Motion to Strike Paragraph 4 of the Declaration of Pamela Asbury, Docket No. 185-3 (R. Doc.
211) is DENIED.
Signed in Baton Rouge, Louisiana, on March 10, 2014.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

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