Free Motion for TRO - District Court of Delaware - Delaware

Case 1:04-cv—01294-JJF Document 54-6 Filed 02/27/2006 Page1 0f4
EXHIBIT E

Case 1 :04-cv-01294-JJF - Document 54-6 Filed 02/27/2006 Page 2 of 4
ATLANTA CINCINNATI COLUMBUS NEW YORK
BRUSSELS CLEVELAND DAYTON WASHINGTON, D,C.
‘ [email protected]
(513) 352-6790
February 17, 2006
Via Email and Regular Mail
living C. Faber, Esq.
Grippo & Elden LLC
lll South Wacker Drive
Chicago, Illinois 60606
Re: Continental Casualty Company, et al. v. BorgWarner, Inc., etal.
Dear Irv:
In connection with the above-captioned matter, I am in receipt of a copy of your
correspondence dated February 8, 2006 to myself and Larry Henke, wherein on behalf of your
clients, Continental Insurance Company and Columbia Casualty Company [collectively "CNA"]
you set forth the "unilateral action" which CNA intends to take against Flowserve US, Inc. and
its heritage entity BW/IP [collectively "BW/IP"] beginning March 15, 2006. Ln response, please
be advised as follows:
1. CNA‘s "unilateral action" as detailed in your letter constitutes a constructive
denial of coverage for BW/IP with respect to all current and future asbestos lawsuits ["Asbestos
Lawsuits"] brought against BW/IP for alleged injuries arising out of asbestos·containing
products allegedly manufactured or sold by BorgWarner prior to 1987. As a result, under
applicable law, BW/IP is permitted to take whatever steps it deems appropriate in order to
protect its interests, since CNA is effectively abandoning BW/IP in these lawsuits.
2. BW/IP rejects in its entirety CNA‘s attempts to rewrite the insurance contracts at
issue to suit CNA‘s parochial goals in this matter. This includes, but is not limited to, (i)
consultation with respect to new defense counsel; (ii) compliance with CNA‘s Litigation
Management Guidelines; (iii) prior approval of expenditures of defense costs; (iv) participation
in all conference calls with defense counsel to discuss strategy and to consider approval of
settlement proposals; (v) requirement to agree to reasonable settlement proposals with
underlying plaintiffs, etc. Irrespective of CNA‘s constructive denial of coverage, the CNA
policies at issue do not require its insureds to comply with CNA‘s new, self-serving interpretation
of its policies.
3. Under separate cover, we are advising defense counsel retained by CNA that on
or before March l, 2006 they are to forward to Flowsetve's National Coordinating counsel for
asbestos claims their complete tiles for all lawsuits wherein (properly or improperly) they have
entered an appearance on behalf of BW/IP or any Flowserve related entity with respect to the
Asbestos Lawsuits. [ .

`|`Ht)Ml‘5ON I··l I N li in- 312 Walnut Street www.Tho1npsonHii1e.ctim
/\rruitNievs M law 14th Floor Phone $13352.6700
Cincinnati, Ohio 45202-4089 aix $12.241.477t

Case 1 :04-cv—01294-JJF Document 54-6 Filed 02/27/2006 Page 3 of 4
EOMPSON
I-{Hifi
Irving C. Faber, Esq.
February l7, 2006
Page 2
4. With respect to all current and future lawsuits brought against BW/IP for alleged
injuries arising out of asbestos-containing Byron Jackson pump products manufactured or sold
by BorgWamer, Flowserve will promptly tile the appropriate answers with all applicable
defenses asserted, including third-party complaints against Burns Intemational Services Corp.
5. Flowserve also intends to review each of the tiles being sent to it by defense
counsel retained and supervised by CNA for inappropriate conflicts and conduct under the Code
of Professional Responsibility. To the extent that Flowsewe determines that one or more
defense counsel have violated the Code of Professional Responsibility by placing the interests of
another BorgWamer related entity above those of Flowscrve or by acting in a manner adverse to
Flowserve interests (e. g. improperly substituting BW/IP into lawsuits) F lowserve will tile the
appropriate complaint with the applicable bar association. In addition, if it is determined that
said defense counsel was instructed by another BorgWamer related entity or its counsel or
insurer to take such actions, Flowserve will likewise file the appropriate complaint against these
responsible entities and seek all remedies at law to which it is entitled.
6. Finally, subsequent to March 15, 2006, Flowserve and its counsel will begin
meeting with Plaintiffs counsel in the Byron Jackson related Asbestos Lawsuits. The purpose of
said meetings will to reach a common ground with respect to obtaining a global resolution of the
Asbestos Lawsuits which have been brought against BW/IP. These settlement meetings will be
comprehensive in nature and will include a discussion of all reasonable options available to the
parties.
I believe that the above paragraphs clearly set forth F1owse1ye‘s position with respect to
CNA's "unilateral action"; however, if you have any questions, please do not hesitate to get in
touch with me.
Very truly yours,
jéiiifisrtopher M. V
CMB/lp · p
cc: Lawrence W. l—lenke, Esq.
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Case 1 :04-cv—01294-JJF Document 54-6 Filed 02/27/2006 Page 4 of 4 Page I of 2
Julie Miner `

From: Julie Miner
Sent; Thursday, August 11, 2005 6:11 PM
To: 'Steven M. Mitchel'
Cc; 'Anisha Kakar'; 'David Butman'; 'Ed Mueller'; 'Fred Alvarez'; 'Gerald P. Mulhall'; lvana Byler; 'Marc Gaffrey'; 'Mark
Deptula'; 'Mike Colgan'; 'Mike Powers'; 'Tony Packard'; Trent Proctor; 'Yvonne DeLuz'
Subject: Asbestos Cases
LAW OFFICES
NISEN & ELLIOTT, LLC
200 W. ADAMS STREET
SUITE 2500
CHICAGO, IL 60606
(312) 346-7800
August ll, 2005
VIA E-MAIL: smm bmandslaw.com
Steven M. Mitchel
Booth, Mitchel & Strange
707 Wilshire Blvd., Suite 4450
Los Angeles, CA 90017
Re: Asbestos Cases
Dear Steven:
We have posted the Surrunons and Complaint for the cases listed below to the website.
We understand that you have been designated by the general liability insurance carriers to represent Burns Intemational., as successor
to Byron Jackson Pumps, in this asbestos case.
You can retrieve the documents from the following website: h ://nisen.com/bor wamer/. Once you have the page open, please click
on the "Borg-Wamer" button. You will then be asked to enter a username and password. We have set up a temporary username (tuser) and
password (1234). At the next screen, please click on the folder for California, then click on the folder for August 05. You can then access the
above complaints by sorting the folder by name and/or date order. Please refer to the following if you are experiencing any problems. In the
event you continue to experience problems, let me know and our tech person will be happy to contact you.
1) You must be able to use graphical FTP from your desk for this website to work. Please verify this with your systems support
personnel.
2) You must use intemet explorer 6 or above. No other browsers will work.
3) Your firewall must allow FTP traffic to pass through. See your systems people for this.
4) You must type the address into the "address section of intemet explorer”. Typing the supplied address into a yahoo or msn (or other)
search page will not work.
By copy of this e-mail and pursuant to procedures agreed with the carriers, we are notifying the umbrella carriers, as notice of and
tender of the claim for defense and indemnity in accordance with all applicable provisions of the policies in question. Please note that we will
send any and all additional paperwork by regular mail. If any of the carbonees wish to have such documents, please contact Mr. Mitchel, or if
any additional notice or tender of the complaints is required, please contact the undersigned.
Very truly yours,
Nisen & Elliott, LLC
Attorneys for Bums International Services Corp.
cc: Marc S. Gaffrey
Gerald Mulhall -
2/1 7/2006