You're viewing Docket Item 373 from the case ASTENJOHNSON, INC. v. COLUMBIA CASUALTY COMPANY et al. View the full docket and case details.

Download this document:




Case 2:03-cv-01552-LS Document 373 Filed 08/11/10 Page 1 of 10



UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA


ASTENJOHNSON, INC.







NO. 03-CV-1552

Plaintiff,

v.

COLUMBIA CASUALTY COMPANY, et al.

Defendants.





















PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO

DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

ON FACT ISSUES PURSUANT TO FED. R. Civ. P. 56(d)(1)

Plaintiff, AstenJohnson, Inc. (“AJN”), by and through the undersigned counsel, hereby

submits this Memorandum of Law in Opposition to Defendants’ Motion for Partial Summary

Judgment on Fact Issues Pursuant to Fed. R. Civ. P. 56(d)(1).

Defendants’ Motion effectively asks this Court to flout the Third Circuit’s order of

remand. The Third Circuit remanded this action for a jury trial; it ruled that a jury, not this

Court, should hear “conflicting testimony about many material facts,” should “credit one fact

witness over another, as well as one expert over another” and should draw “a host of inferences

concerning the motivation of the parties at various stages.” AstenJohnson Inc. v. Columbia Cas.

Co., 562 F.3d 213, 226 n.5 (3d Cir. 2009). Moreover, the Court explicitly declared that AJN was

entitled to a new trial. Id. at 230. This is not a situation in which the parties are bound by the

facts in a prior lawsuit or an earlier phase of the case and such facts cannot be controverted as a

matter of law. See, e.g., Prudential Ins. Co. of Am. v. Prusky, No. Civ.A. 04-462, 2005 WL

3110990, at **3-6 (E.D. Pa. Nov. 17, 2005).

DCDOCS-82798.1

Case 2:03-cv-01552-LS Document 373 Filed 08/11/10 Page 2 of 10

As Defendants freely admit, the facts that they claim are undisputed “are largely drawn

from the Court’s prior Findings of Fact and Conclusions of Law,” handed down after the first

trial. Moving Br. at 2. Thus, if this Court declared that those post-trial Findings and

Conclusions are undisputed, the jury again would be deprived of the opportunity to review the

evidence and testimony for itself. That decision also would deprive AJN, for a second time, of

the opportunity to have its case decided by a jury, as Defendants appear to recognize:

In the three weeks of trial, the Court heard conflicting
testimony about many material facts and resolved to credit one
fact witness over another, as well as one expert over another.
After doing so, it drew a host of inferences concerning the
motivation of the parties at various stages. In short, it exercised
the functions that Asten was entitled to have a jury exercise.



Id. (emphasis supplied).

Defendants’ motion also hinges on the improper use of Rule 56(d) as an independent

basis for summary judgment. Such a request is inappropriate under the plain language of Rule

56(d) and has been rejected by numerous courts. Under Rule 56(d)(1), a court should “determine

what material facts are not genuinely at issue” “if summary judgment is not rendered on the

whole action.” Fed. R. Civ. P. 56(d)(1) (emphasis added). As the explicit language of the rule

states, the determination of material facts not genuinely at issue is not done as an independent

request, but only after a properly filed motion for summary judgment under Rule 56(a) or (b) is

denied.

Numerous courts have considered this very issue and consistently found that a motion

exclusively under Rule 56(d) is improper. See, e.g., Evergreen Int’l, S.A. v. Marinex Constr.

Co., Inc., 477 F. Supp. 2d 697, 699 (D.S.C. 2007) (“Rule 56(d) does not authorize independent

motions to establish certain facts as true”); Nye v. Roberts, 159 F. Supp. 2d 207, 210 n.2 (D. Md.

2001) (“A party may not bring a motion under [Rule] 56(d) for relief on part of a claim.”); City

DCDOCS-82798.1

2

Case 2:03-cv-01552-LS Document 373 Filed 08/11/10 Page 3 of 10

of Wichita v. United States Gypsum Co., 828 F. Supp. 851, 869 (D. Kan. 1993) (Rule 56(d)

“does not authorize an independent motion to establish certain facts as true but merely serves to

salvage some constructive result from the judicial effort expended in denying a proper summary

judgment motion.”); Arado v. General Fire Extinguisher Corp., 626 F. Supp. 506, 509 (N.D. Ill.

1985) (“There is no such thing as an independent motion under Rule 56(d).”). Instead, Rule

56(d) “provides a method whereby a court can narrow issues and facts for trial after denying in

whole or in part a motion properly brought under Rule 56’s other provisions.” Capitol Records,

Inc. v. Progress Record Distrib., Inc., 106 F.R.D. 25, 29 (N.D. Ill. 1985). Because Defendants

have not sought “summary judgment on all or part of the claim” as required by Rule 56(b), this

Motion is baseless and should be denied as procedurally defective.

In addition to asking the Court to ignore the directions of the Third Circuit and grant a

motion improperly based on Rule 56(d), Defendants also have submitted a faulty Statement of

Undisputed Material Facts (“Defendants’ Proposed Findings”). The vast majority of the “facts”

in Defendants’ Proposed Findings are not the type of neutral, incontrovertible facts that lend

themselves to pre-trial stipulations or orders, or that will help to narrow the issues for trial. To

the contrary, Defendants’ Proposed Findings would complicate the trial. Such a document could

not – and should not – substitute for the presentation to the jury of key witnesses and documents.

In fact, even if the Court granted Defendants’ Motion, there would be no easy or logical way of

presenting Defendants’ Proposed Findings to the jury. Defendants do not even attempt to

explain how the Proposed Findings would be used at trial. It appears that the Defendants are

proposing that snippets of witness testimony be used in lieu of live testimony, and quotes from

documents instead of the full documents. It would be more daunting and problematic to read the

DCDOCS-82798.1

3

Case 2:03-cv-01552-LS Document 373 Filed 08/11/10 Page 4 of 10

entire 36-page document into the record than to allow the jury to evaluate the actual evidence

and testimony for itself.

Defendants’ Proposed Findings also suffer from the following serious flaws:

? Defendants devote approximately 11 pages to selective quotations from the trial

testimony of three witnesses: James A. Young, AJN’s national coordinating

defense counsel; William Finn, formerly AJN’s CEO and a member of its Board

of Directors; and Gloria D. Forbes, an insurance agent for Babb Inc., which

served simultaneously as AJN’s retail broker and as an agent for Defendant

American Insurance Company. But all three of these witnesses likely will be

called to testify anyway at the upcoming trial – AJN expects to call all three in

its direct case. Thus, if adopted, Defendants’ Proposed Findings would be more

likely to complicate the upcoming trial than to shorten it.

? Defendants spend approximately five pages characterizing six exhibits: CCC1-

4, 18 and 20. Yet most, if not all, of those exhibits will be offered into evidence

regardless. It would be much more efficient, and a more reliable trial technique,

to simply show the actual exhibits to the jury.

? Defendants litter their Proposed Findings with opinions as opposed to facts. For

example, Paragraph 163 states that one witness died “before his deposition

could be taken.” The word “could” is judgmental and wrong. While it is true

that the witness died before his deposition was taken, his deposition certainly

“could” have been taken before that time. That paragraph conveniently omits

that Defendants waited fifteen months before attempting to notice this

DCDOCS-82798.1

4

Case 2:03-cv-01552-LS Document 373 Filed 08/11/10 Page 5 of 10

deposition, and that additional months passed before the witness died.

(CCC219A, CCC221.).

? Defendants omit important facts. For example, their selective quotations from

Ms. Forbes’ testimony do not include her admission that she did not have a clear

understanding in the early 1980s, or even today, of exactly what “asbestosis”

meant. (See Dep. Tr., June 28, 2004, at 97-98.) It also did not include that,

unlike Ms. Forbes, the parties themselves – AJN, Columbia and American –

understood this word. Specifically, they knew by the early 1980s that asbestosis

was a specific disease and was one of several asbestos-related diseases. (See,

e.g., Dep. Tr. of Laurence A. Krupnick, March 23, 2005, at 73-75; Tr. 7/11/06

Young 89:21-92:19; AMER168, P222, P237, P234, Tr. 9/26/06 Jordan 6:8-

6:12, P42, P242, P246, P253, P257, P261, P262.).

Attached hereto as Exhibit A is a Counterstatement of Facts by AJN (“Plaintiff’s

Counterstatement of Facts). The Counterstatement of Facts demonstrates the flaws in the one-

sided submission by the Defendants and includes many facts that are missing from Defendants’

version, such as the following:

?

In the latter half of the 1980-81 policy period, the primary insurance company

sold, and American followed form to, a very limited asbestos-related exclusion:

one that barred coverage only for claims arising out of AJN’s affiliation with the

Asbestos Textile Institute (“ATI”). (AMER00446; AMER00752.)

?

In 1981, AJN was willing to continue with that limited exclusion, either alone or

in combination with a “large deductible including costs and expense on claims

arising from asbestos.” (Trial Ex. CCC4; see also CCC2.)

DCDOCS-82798.1

5

Case 2:03-cv-01552-LS Document 373 Filed 08/11/10 Page 6 of 10

? Columbia agreed to sell coverage to AJN with a high deductible, along with an

exclusion for both ATI claims and asbestosis exclusions. (CCC9, CCC10.) If

that exclusion was absolute, in that it barred coverage for all asbestos-related

diseases, there would have been no reason to include the high deductible and the

exclusion specific to ATI claims.

? As a practical matter, the high deductible that AJN was prepared to purchase and

that Columbia sold substantially reduced or eliminated any need for an exclusion.

(See Trial Ex. P209 at 22-23; Tr. 9/20/06 Connolly 45:25-47:17; 73:20-74:16.)

The Columbia primary policy contained a $2,500 deductible inclusive of defense

costs. (Trial Ex. CCC277.) At that time, AJN’s asbestos-related defense costs

were running $300 per claim (CCC2) and the lawsuits were ending in dismissals

without payment (AMER348).

? AJN filed this coverage action on the very same day that it filed its coverage

action against the pre-1981 insurance companies: March 13, 2003. See

AstenJohnson, Inc. v. Columbia Cas. Co. et al., Case 2:03-cv-01552-LS (E.D. Pa.,

filed March 13, 2003) (Docket No 1); AstenJohnson, Inc. v. Allstate Ins. Co., et.

al., Case 2:03-cv-01555-LDD (E.D. Pa., filed March 13, 2003) (Docket No. 1).

This fact refutes Defendants’ claim that AJN waited 20 years to file this lawsuit

because it knew the asbestosis exclusion precluded a claim for coverage. That

reasoning cannot apply since AJN also waited 20 years to file the lawsuit against

the pre-1981 insurance companies, which provided coverage without an

asbestosis exclusion. As AJN has stated, the simple reason for the timing of these

lawsuits was the exhaustion of the pre-1981 primary coverage.

DCDOCS-82798.1

6

Case 2:03-cv-01552-LS Document 373 Filed 08/11/10 Page 7 of 10

The Court directed the parties to try to reach agreement as to a stipulation of facts instead

of using requests to admit. Instead of attempting in good faith to reach agreement on a legitimate

stipulation, Defendants submitted their Proposed Findings to AJN knowing AJN would never

agree to it. AJN, however, does not suggest that every fact is disputed and needs to be tried. To

the contrary, AJN has prepared a Proposed Stipulation of Undisputed Facts that identifies facts

that AJN believes to be undisputed and does not involve weighing, drawing inferences,

credibility or the exercise of judgment. See Ex. B.

For all of these reasons, AJN submits that this Court should deny Defendants’ Motion

and order that the parties work towards adopting a stipulation of facts, as the Court had

previously directed.



Respectfully submitted,


Dated: August 11, 2010

























































___

/s/ Michael Conley
Michael Conley, Esq. (I.D. No. 54142)
OFFIT KURMAN
Three Parkway
1601 Cherry Street, Suite 1300
Philadelphia, PA 19102
(267) 338-1300

Rhonda D. Orin, Esq.
ANDERSON KILL & OLICK
1717 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
Phone: 202-416-6500
Fax: 202-416-6555
Email: [email protected]

Robert C. Heim, Esquire
Alexander R. Bilus, Esquire
DECHERT LLP
Cira Centre
2929 Arch Street
Philadelphia, PA 19104
Phone: 215-994-4000

DCDOCS-82798.1

7

Case 2:03-cv-01552-LS Document 373 Filed 08/11/10 Page 8 of 10






















ATTORNEYS FOR PLAINTIFF,
ASTENJOHNSON, INC.

Fax: 215-994-2222
Email: [email protected]

[email protected]

DCDOCS-82798.1

8

Case 2:03-cv-01552-LS Document 373 Filed 08/11/10 Page 9 of 10




I hereby certify that on this 11th day of August, 2010, I served Plaintiff’s Memorandum of

CERTIFICATE OF SERVICE

Law in Opposition to Defendants’ Motion for Partial Summary Judgment on Fact Issues Pursuant to

Fed. R. Civ. P. 56(d)(1) through the ECF filing system on the following:














& PUDLIN



Ronald P. Schiller, Esquire

Jay I. Morstein, Esquire

Nicole J. Rosenblum, Esquire

HANGLEY ARONCHICK SEGAL



One Logan Square, 27th Floor



Philadelphia, PA 19103
Phone: 215-496-1020


Fax: 215-851-1020



Email: [email protected]

[email protected]

[email protected]

ATTORNEYS FOR DEFENDANT,
COLUMBIA CASUALTY COMPANY



Robert C. Heim, Esquire
Alexander R. Bilus, Esquire
DECHERT LLP
Cira Centre
2929 Arch Street
Philadelphia, PA 19104

Phone: 215-994-4000

Fax: 215-994-2222


Email: [email protected]


[email protected]
ATTORNEYS FOR PLAINTIFF,

ASTENJOHNSON, INC.





















































































Jacob C. Cohen, Esquire
William P. Shelley. Esquire
Cozen O’Connor
1900 Market Street
Philadelphia, PA 19103
Phone: 215-665-2147
Fax: 215-701-2347

Email: [email protected]


[email protected]







Susan Simpson Brown, Esquire
Wendy H. Koch, Esquire
KOCH AND CORBOY
101 Greenwood Avenue, #460
Jenkintown, PA 19046
Phone: 215-881-9931
Fax: 215-881-2200
Email: [email protected]

[email protected]

ATTORNEYS FOR DEFENDANT,
AMERICAN INSURANCE COMPANY





Rhonda D. Orin, Esquire

ANDERSON KILL & OLICK, LLP
1717 Pennsylvania Ave., NW, Suite 200
Washington, DC 20006
Phone: 202-416-6549
Fax: 202-416-6555
Email: [email protected]
ATTORNEYS FOR PLAINTIFF,
ASTENJOHNSON, INC.

















/s/ Michael Conley_________________
Michael Conley, Esq.



Case 2:03-cv-01552-LS Document 373 Filed 08/11/10 Page 10 of 10



UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA


ASTENJOHNSON, INC.







NO. 03-CV-1552

Plaintiff,

v.

COLUMBIA CASUALTY COMPANY, et al.

Defendants.





















CERTIFICATE OF WILLIAM H. PILLSBURY, ESQ.

I, William H. Pillsbury, hereby certify that true and correct copies of Plaintiff’s

Memorandum of Law in Opposition to Defendants’ Motion for Partial Summary Judgment on Fact

Issues Pursuant to Fed. R. Civ. P. 56(d)(1), along with Exhibits A and B thereto, were caused to be

filed with the court electronically on August 11, 2010.

The documents referenced in Exhibits A and B were not filed electronically, due to the

volume of pages. True and correct copies of the documents referenced in Exhibits A and B are on

compact discs that were forwarded by overnight mail to Chambers and counsel of record in this

matter, along with a hard copy of the Opposition and Exhibits.



Dated: August 11, 2010









/s/ William H. Pillsbury