GENERAL REFRACTORIES COMPANY v. FIRST STATE INSURANCE CO. et al

Filing 456

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDMUND V. LUDWIG ON 4/26/2012. 4/27/2012 ENTERED AND COPIES MAILED AND E-MAILED.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
GENERAL REFRACTORIES COMPANY

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v.
FIRST STATE INSURANCE CO., et al.

CIVIL ACTION

No. 04-3509

MEMORANDUM
Ludwig, J.

April 26, 2012

Defendants Lexington Insurance Company and AIU Insurance Company move for
reconsideration of the order and memorandum entered on January 30, 2012 (doc. nos. 406,
407). See General Refractories Company v. First State Insurance Company, No. 04-3509,
fn. 1 for decision and case history (Jan. 27, 2012 memorandum).1 Jurisdiction is diversity.
28 U.S.C. § 1332.
The reconsideration motion asserts that the granting of plaintiff’s motion for partial
summary judgment (doc. no. 315), denial of movants’ cross-motion for partial summary
judgment (doc. no. 360), and dismissal of the counterclaims amount to “manifest injustice.” 2
See, e.g., defs. br. at 3-6, 10, 11 (doc. no. 413).
Specifically, movants aver that the memorandum decision “misapprehends” the basis
of their counterclaims and motion for partial summary judgment:

“at the time their

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By order and memorandum, reconsideration was also denied in companion case motions. General
Refractories Company v. First State Insurance Company, No. 04-3509 (orders and memoranda dated Apr.
13, 2012 (doc. nos. 439, 440) and Apr. 20, 2012 (doc. nos. 446, 447)).
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“Manifest injustice” is one of three limited grounds for reconsideration. Cottrell v. Good Wheels,
No. 11-3409, --- Fed. App’x ----, 2012 WL 171941, *3 (3d Cir. Jan. 23, 2012) (citing N. River Ins. Co. v.
CIGNA Reins. Co., 52 F.3d 1194, 1218 (3d Cir. 1995)).

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respective policies were issued, both parties to the Lexington and AIU policies held the
mistaken belief that the policies, as written, excluded asbestos by virtue of following form
to an underlying umbrella policy with an asbestos exclusion.” Defs. br. at 3-4, 6-7 (emphasis
in original omitted). The motion characterizes the issue: “When Lexington [AIU] issued
[its] policy . . . did GRC (through its broker) and Lexington [AIU] share a mutual belief that
the lead umbrella policy would contain an asbestos exclusion?” Id. at 4. Also: the
memorandum decision “ultimately overlooks [that issue] by limiting the analysis to the
question of whether Lexington and AIU made a mistake by not including a separate asbestos
exclusion in their policies.” Id. at 7-8 (“After its passing reference . . . on pages 2 and 3 of
the opinion, the Court never again considers the following form argument). But see mem.
at 2-3 & n.3, 8-9, 8-12.
Saying so (even repeatedly in bold and italic font) is not enough. And the statement
“there also has been no determination as to whether the Lexington and AIU policies
incorporate an asbestos exclusion by virtue of their following-form provisions” (defs. br. at
17) is incorrect. While the memorandum decision is interlocutory, it nevertheless reaches
the essence of the parties’ claims: “Today’s order holds that reformation or rescission of the
policies is not warranted. Plaintiff’s motion for partial summary judgment will be granted,
the counterclaims will be dismissed, and defendants’ cross-motion will be denied.” Mem.
at 3.
None of the narrow reasons or categories for reconsideration apply here. The motion

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for reconsideration reargues previously presented matters, asserts arguments that could have
been but were not raised before, and expresses disagreement with the memorandum decision.
See Bostic v. AT&T of the V.I., 312 F. Supp. 2d 731, 733-34 (D.V.I. 2004); see, e.g.,
previous argument: defs. br. at 14 (doc. no. 360-2); defs. reply br. at 2, 11, 16-17 (doc. no.
386); defs. sur-reply br. (doc. no. 387).
All of the movants’ theories of mistake, including the now-revised version based on
the follow-form policy language, were fully considered in the original memorandum.
Movants had the burden to show mutual mistake by the high threshold of clear and
convincing evidence. See mem. at 9-10; West v. Lincoln Benefit Life Co., 509 F.3d 160, 171
(3d Cir. 2007) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (a ruling
on a motion for summary judgment or for a directed verdict necessarily implicates the
substantive evidentiary standard of proof that would apply at the trial on the merits”); N.W.
Mut. Life Ins. Co. v. Babayan, 430 F.3d 121, 129 (3d Cir. 2005) (heightened standard of
proof must be taken into account) (citing Justofin v. Metro. Life Ins. Co., 372 F.3d 517, 52122 (3d Cir. 2004) (clear and convincing evidentiary standard applied on summary
adjudication).
The memorandum concluded: “The evidence submitted is speculative about the
parties’ intent and the purported mistake.” Mem. at 10. Movants say this was a “critical
error” because: “It is absolutely clear from the record that the parties believed at the time the
. . . policies were issued that they would follow form to a Granite State umbrella policy with

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an asbestos exclusion,” and they quote a portion of the binders for the Lexington and AIU
policies:
Subject to: Following all wordings and coverages of first layer umbrella with
Granite State Ins. Co., including but not limited to: . . . 2) Exclude asbestos
and warrant U/L aggregate not exhausted by asbestos.
Doctors Aff. 9/9/11, Ex. 24 (doc. no. 361); defs. br. at 8, 10. In their view, “[t]he language
of the binders is not in any way ambiguous” and “[t]he clear and unequivocal language of
the binders leaves no room for any other conclusion.” Id. at 8, 9.
In any event, this is not proper argument on reconsideration. The memorandum
decision considered the binders in their entirety and in light of the totality of the evidence,
including the language extracted by movants. See mem. at 4-5, 10-11. The attributed errors
are the product of movants’ selective emphasis of portions of the record and exclusion of
other important evidence. Id.
Movants say it was a “manifest error of law” to conclude that the binders “evidence
an ‘agreement to agree.’” Mem. at 11; defs. br. at 9-10. The binders’ “unmistakable
directive, ‘Exclude asbestos,’ is self-explanatory.” Id. Although not fully developed, their
argument suggests that the binders were complete contracts of insurance and were not
replaced or terminated by the policies themselves. Or, perhaps the parties’ mutual intent, as
evidenced by the binders, continued in force through execution of the policies: “Because the
binders were enforceable agreements in their own right and their language is unambiguous,
the Court need look no further than the binders themselves to determine the intent of the

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parties. . . . [T]he binders alone are more than sufficient to establish beyond peradventure that
GRC, Lexington, and AIU all believed that the underlying Granite State umbrella policy
would contain an asbestos exclusion . . . .” Id. at 10.
As the memorandum summarized: “Simply stated, these submissions do not fill the
vacuum of evidence as to what the parties knew, intended, and agreed to in regard to the
policies issued for the 1984-85 period. On this record, the written insurance contracts
provide the only reliable evidence of the agreements that were actually made.” See mem. at
11-12 & n.4.
Instead, the record, in its entirety, established the absence of clear and convincing
evidence that might warrant reformation or rescission of the policies. Various fact versions
germane to the parties’ transactions, both before and after execution of the policies, support
contradictory explanations as to why the policies of these three insurers – Granite, Lexington,
and AIU – did not contain asbestos-related exclusions.3 Rather than mistake, plaintiff’s
evidence was that these insurers may have intentionally omitted asbestos-related exclusions
because “an AIG asbestos-related exclusion was still under development and had yet to be
submitted to the Pennsylvania Department of Insurance for approval.” See Pl. reply br. at

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These three insurers are affiliated but separate corporations. In 1984-85, they operated as “sister
companies” of the American International Group, but are now known as “Chartis companies.” Defs. br. at
19 n.6 (doc. no. 360-2); defs. br. at 1 n.2, 11 (doc. no. 284); defs. reply br. at 1 (doc. no. 405) (“AIG was a
holding company”). It is not controverted that AIG’s State Relations & Compliance Department “was
responsible for regulatory approval of asbestos-related exclusions that would be used by AIG “sister’
companies, such as Lexington and AIU. Pl. reply br. at 11, doc. no. 372. Michael J. Bruzzi, Jr., who
underwrote the Granite State policy, testified that asbestos-related exclusions would have been provided to
the underwriters by AIG “corporately” and “the carrier would never put the broker’s wording on the policy.”
Bruzzi dep., Conley Aff. 9/23/11, Ex. H, 44:10-19, 62:9-24, 67:2-25 (doc. no. 372-1).

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3, 4, 5, 7, 10-11, 11 & n.5 (doc. no. 372); Conley Aff. 9/23/11, Exs. B, G (doc. no. 372-1).
Movants disagreed on this point. See defs. reply br. at 2-3, 12-15 (doc. no. 386). Yet in
discovery these insurers did not produce a single insurance policy issued before August 1984
to a Pennsylvania policyholder that included an asbestos-related exclusion. See Pl. reply br.
at 10 (doc. no. 372); defs. reply br. at 14-15 (doc. no. 386). Among other evidentiary
shortcomings, nothing was proffered to show that these insurers’ representatives relied on
specific exclusionary language in the Granite State policy.
The absence of evidence can be a double-edged sword. The memorandum concluded
that, after many years of discovery, movants remain unable to present evidence of the
requisite intent and mistake to warrant reformation or rescission of the policies. See Celotex
v. Catrett, 477 U.S. 317, 323, 332-33 (1986).
Movants assert that Jennifer Romano or “someone” else who worked at the insurance
brokerage firm of Marsh & McMcLennan must have acted as plaintiff’s agent. See defs. br.
at 7 & n.2, 8 & n.3 (doc. no. 413). This is at odds with the record, which established that Ms.
Romano was employed by GRC’s broker for the procurement of the policies. On their face,
the binders confirm that Romano’s offer to purchase insurance on behalf of GRC was
“accepted and agreed” to by the insurers’ underwriters. Doctors Aff. 9/9/11, Ex. 24 (doc. no.
361). However, the record did not disclose who prepared the binders. See mem. at 4. Some
evidence was that Romano may have acted in different roles as the insurers’ agent as well.
See mem. at 4, 5-6. The relevance of these fact issues involves whether movants made their

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case by clear and convincing evidence. See Regis Ins. Co. v. All Am. Rathskeller, Inc., 976
A.2d 1157, 1168-68 (Pa. Super. Ct. 2009) (quoting Taylor v. Crowe, 282 A.2d 682, 683-84
(Pa. 1971) (“‘broker may be found to have acted on behalf of an insurer in negotiations
between the latter and the insured so as to be deemed the agent of the insurer and not the
insured’”)); id. (quoting Sands v. Granite Mut. Ins. Co., 331 A.2d 711, 715 (Pa. Super. Ct.
1974) (broker “‘had apparent, if not actual, authority to bind’ the insurer”)).
According to movants, the broker had an obligation to apprise Lexington and AIU that
the Granite State policy did not contain an asbestos exclusion as referenced in the binders.
See defs. br. at 14, 15. Movants do not acknowledge responsibility for not having discovered
that “extrinsic fact” for themselves. Id. at 4. Disavowing that they “controlled their own
policies,” they place blame for the omission on Marsh, the broker, or Granite State, the
follow-form policy issues. Id. at 12-13. Their position is that the memorandum decision
“improperly imputes to Lexington and AIU knowledge that was held only by GRC’s broker
and Granite State.” Id. at 14-15 (emphasis in original omitted). Furthermore, they object to
bearing the risk of mistake as to the contents of the Granite State policy because they “could
not have discovered that mistake at the time the policies were issued by reading the policies.”
Id. at 13.
Movants’ other arguments are also without merit. Movants disagree with the legal
principles set out in the memorandum decision, mem. at 13-14, and disregard substantial
evidence contrary to their position. Lexington and AIU were not novices lulled into a

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misplaced trust by the broker’s representations. Lexington’s and AIU’s underwriters testified
it was indeed their responsibility in the ordinary course of business to have requested or made
other efforts to obtain a copy of the Granite State policy. See John Gibson dep., Doctors Aff.
10/11/11, Ex. 8, 27:21-28 (doc. no. 381); Conley Aff. 9/23/11, Ex. D, 63:12-19 (doc. no.
372-1); see also Paul Sanchez dep., Conley Aff. 9/23/11, Ex. E, 245:15-19 (doc. no. 372-1);
Conley Aff. 6/8/11, Ex. H, 117:17-118:20 (doc. no. 315-2). Eventually, it appears, AIU did
so. On May 8, 1985, AIU endorsed its policy to identify the Granite State policy number.
See mem. at 6; Doctors Aff. 9/9/11, Ex. 30 (doc. no. 361). See also Pl. reply br. at 8-9 (doc.
no. 372); defs. reply br. at 23 (doc. no. 386).
Movants again complain that in denying reformation of the policies the decision
creates “inconsistencies” and an “anomalous situation” in which some of the policies in the
“quota share” excess layers are subject to asbestos exclusions, while their policies are not.
Defs. br. at 15-16 (doc. no. 413). See mem. at 11 n.4; see, e.g., defs. br. at 18-19 (doc. no.
360-2); defs. sur-reply br. at 5 (doc. no. 387) (same arguments).
An order accompanies this memorandum.

BY THE COURT:
/s/ Edmund V. Ludwig
Edmund V. Ludwig, J.

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