Utica Mutual Insurance Company v. R&Q Reinsurance Company

Filing 243

ORDER: It is hereby ORDERED that R&Q's Motion for Reconsideration (Dkt. No. 127 ) is GRANTED IN PART as noted herein and is otherwise DENIED. It is further ORDERED that R&Q's Letter Motion regarding R&Q's proposed deposition of John Roda, Esq. (Dkt. No. 134 ), is GRANTED IN PART as noted herein. The parties will, after conferring, submit a status report by April 13, 2018, requesting any revisions to the deadlines previously proposed at Dkt. No. 226 -1, including the deadline for Utica to produce the supplemental discovery ordered herein. Signed by U.S. Magistrate Judge Andrew T. Baxter on 3/27/2018. (nmk)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
UTICA MUTUAL INSURANCE COMPANY,

6:15-CV-270 (BKS/ATB)

Plaintiff,
v.
R&Q REINSURANCE COMPANY,
Defendant.
________________________________________
MARY BETH FORSHAW, ESQ., and CHRISTOPHER G. LEE, ESQ., for Plaintiff
JOHN F. FINNEGAN, ESQ. and ALLISON G. GOLD, ESQ., for Defendant
ANDREW T. BAXTER, U.S. MAGISTRATE JUDGE
ORDER
The court conducted a stenographically-recorded telephonic discovery
conference on March 27, 2018, regarding the following motions:
!

R&Q Reinsurance Company’s (“R&Q”) Motion for Reconsideration of this
court’s May 1, 2017 ruling denying R&Q access to internal documents of Utica
Mutual Insurance Company (“Utica”)1 regarding its settlement negotiations with
Burnham Corporation (“Burnham”), and related coverage issues and (Dkt. No.
127); and

!

R&Q’s Letter Motion requesting that the court overrule Utica’s objection to

1

Per the court’s discussion during the March 27 th conference, to the extent this Order
refers to Utica, it also applies, as appropriate, to Resolute Management, Inc. (“Resolute”) and
National Indemnity Company (“NICO”), a subsidiary of Berkshire Hathaway Inc.

R&Q’s proposed deposition of John Roda, Esq. of Burnham (Dkt. No. 134).
This court has considered the submissions of the parties2 and the arguments of
counsel during the March 27, 2017 discovery conference, as well as prior conferences
referenced during the March 27th conference. For the reasons stated on the record
during the March 27th conference, as well as prior conferences specifically referenced
during the March 27th conference, and subject to the further guidance provided by the
court during those conferences, it is hereby ORDERED that:
A.

R&Q’s Motion for Reconsideration (Dkt. No. 127) is GRANTED IN

PART, in that:
1.

Utica will be required to disclose, to R&Q, non-privileged

documents3, for the period between January 1, 2016 and March 1, 2018, reflecting
internal observations of, and/or communications between, personnel of Utica,
Resolute, and/or NICO (including in-house counsel), relating to the efforts of Utica
and Resolute to negotiate and finalize a coverage-in-place agreement (“CIP”) with
Burnham Corporation relating to asbestos claims.
2.

Utica will be required to disclose, to R&Q, non-privileged

documents, for the period between July 1, 2015 and March 1, 2018, reflecting internal

2

During the March 27th conference, the court cited all of the relevant submissions of the

parties.
3

During the March 27th conference, the court provided further guidance to the parties
with respect to documents as to which Utica asserts privilege. The court also provided direction
as to how Utica should initially focus on particular document custodians in searching for relevant
documents described in paragraphs A1 and A2.
2

observations of, and/or communications between, personnel of Utica, Resolute, and/or
NICO (including in-house counsel), relating to direct coverage issues involving
Utica/Burnham primary and umbrella policies relevant to the Utica/Burnham
negotiations, in particular:
a.

The alleged lack of explicit aggregate limits in the

documentation of some of Utica’s primary policies with Burnham.
b.

The agreed-upon expansion of the coverage block to include

Utica/Burnham primary policies before 1960.
c.

The resolution of which umbrella policies covered defense

costs within limits, and which did not.
d.

Whether the Utica/Burnham umbrella policies for 1977

through 1985 covered defense costs at all.
e.

Utica’s ability to recoup or recover from Burnham for past

payments of defense costs or orphan shares.
f.

The allocation of future defense payments.

Defendant’s motion for reconsideration (Dkt. No. 127) is otherwise DENIED.
B.

R&Q’s Letter Motion regarding R&Q’s proposed deposition of John

Roda, Esq. (Dkt. No. 134), is GRANTED IN PART, in that Utica’s objections to that
deposition are overruled.4 However, during the March 27th conference, the court ruled,

4

Attorney Roda is not precluded by this Order from filing a motion for a protective order
with respect to the deposition.
3

subject to the further guidance provided, that R&Q would not be permitted to question
Attorney Roda with internal Utica/Resolute documents not previously disclosed to him
by Utica/Resolute.5
C.

The parties will, after conferring, submit a status report by April 13, 2018,

requesting any revisions to the deadlines previously proposed at Dkt. No. 226-1,
including the deadline for Utica to produce the supplemental discovery ordered herein.

Dated: March 27, 2017

5

Counsel for R&Q agreed to limit his deposition questioning of Attorney Roda to 2 ½

hours.
4