TED BERRY COMPANY INC v. EXCELSIOR INSURANCE COMPANY

Filing 20

REPORT OF PRE-FILING CONFERENCE UNDER LOCAL RULE 56 - Set Deadlines: Defendant's Motion for Summary Judgment due by 11/25/2013. Plaintiff's Opposition and Cross-Motion for Summary Judgment due by 12/12/2013. Defendant's Reply and Opposition to the Plaintiff's Motion due by 12/23/2013. Plaintiff's Reply due by 12/30/2013. By JUDGE D. BROCK HORNBY. (mnw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
TED BERRY COMPANY, INC.,
PLAINTIFF
v.
EXCELSIOR INSURANCE
COMPANY,
DEFENDANT

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NO. 2:13-CV-342-DBH

REPORT OF PRE-FILING CONFERENCE UNDER LOCAL RULE 56
A Local Rule 56 pre-filing conference was held on November 6, 2013.
The defendant Excelsior Insurance Company plans to file a motion for
summary judgment on Counts I and II of the plaintiff’s complaint (duty to
defend) based upon the complaint in the underlying lawsuit against the
plaintiff and the policy. At the conference, the parties agreed that Maine law
applies. The plaintiff will cross-move for summary judgment on the duty to
defend (Counts I and II) and will oppose the insurance company’s motion on
the additional basis that events that predate the filing of the underlying
complaint are relevant to the duty to defend. It says that Mitchell v. Allstate
Ins. Co., 36 A.3d 876 (Me. 2011) and Auto Europe, LLC v. Conn. Indem. Co.,
321 F.3d 60 (1st Cir. 2003) make that argument possible.

I have reviewed

those cases and, at this time, I will not allow any discovery before ruling on the
summary judgment motions, but the plaintiff certainly can continue to make
its argument that evidence beyond the underlying complaint and the policy

language is relevant to the duty to defend and argue that it needs limited
discovery accordingly before I rule on the defendant’s motion.
The following deadlines were established by agreement:
By November 25, 2013, the defendant shall file its motion for
summary judgment.
By December 12, 2013, the plaintiff shall file its opposition to the
defendant’s motion for summary judgment and its own crossmotion for summary judgment.
By December 23, 2013, the defendant shall file its reply and
opposition to the plaintiff’s motion for summary judgment.
By December 30, 2013, the plaintiff will file its reply.
SO ORDERED.
DATED THIS 6TH DAY OF NOVEMBER, 2013
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

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