Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case 1 :04-cv-01275-KAJ Document 59-2 Filed 07/08/2005 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Don's Hydraulics, Inc. : .
Plaintiff : Civil Action N0.: 04-1275 KAJ
vs.
Colony Insurance Company and .
Truck Tech Industries, Inc., and : ‘
Tipco Technologies, Inc. : _
Defendants :
APPENDIX TO DEFENDANT, COLONY INSURANCE COMPANY’S, RESPONSE TO
DEFENDANT, TIPCO TECHNOLOGIES, INC.’S
OPPOSITION TO SUMMARY JUDGMENT
Don Cathell Deposition Transcript dated May 26, 2005, pp 126-127 ..................... C35 — C37
FIGIOLA & FACCIOLO
/s/ Anthony A. Figliola
Anthony A. Figliola, Ir. (I.D. # 957)
1813 Marsh Road, Suite A
Wilmington, DE 19810
(302) 475-0460
_ Dated: July 8, 2005 Attorney for Defendant Colony Insurance
Company

_ --
n C 1 -04 01275 KAJ D DON CAT LL F`| d 07/08/2005 P 2 f 3
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_ . _ 1 - DON camera.
‘ D011's HYDRAULICS, INC. :c.A. .1s1¤. 01-1215 11<1¤.J1 4 . 1 ·
Plaintiff 1 ‘ 1 S BY MS-11BAM ‘ 4 -
i . A ._ i vS_“ 1_ 1 Q- 1 1 s _ exmsrrs 1 1
. ` - 1 : ._ _ 1 11 NUMBM DBSCRIPTTON PAGE .
' _ _ ‘ ` : I ‘ Caxhell-1 PropnssIdat¤d.l2J4I02 4 ` 1
comm msuizancz coz~11=A1~n· rnuczc : 1 ll _ 1 lf. i
· rscu rnousrim-zs, INC., and Trace :‘ _ 9 C°‘h°“‘2 I”"°‘°°'*“°"8’°*"°* 1 l
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i _--lm- 1 Cathell-5 Colorpicnure 4
. . . - l2
Oral. deposition of DON CATHELL. taken by and ` ‘ c
before Joanne l-l. Gusler, Registered Professional Reporter 13 camuis Cammmn 4 ij
and Notary Public, at the Law Offices of Reger, Rizzo, C3y_h,]l,·; C,,[m.pim,, 4
Kavulich s Darnail. LLP., 1001 North Jefferson street, 14 Q7:
suite 202, Wilmingtzon, Delaware 19801, on Thursday, May C,_q,,11_.g g1,1_¤.,?;,m,m 4 ij
26, 2005, commencing at 10:55 a.m. _` yg
· e Crnhell-9 Common policy declantimis 124
16 t
. 1 _ _ VOLWE I Cathell-I0 Pmgeasummqrepue 121 1
· 1 1 ll 1
. 1 cathe11·11 Faxdat.edW4·'04 120 it
1 asersrenzo PROFESSIONAL REPORTERS camel:-12 Horam-mm evismeumer 130
PENNSYLVANIA and Demwnns E9 Shen
(sou) 621-seas . 20 Cadxell-13 F¤dmd2.¢19J04 130
. 21 Catlie1l·l4 -1.eue-aaredsrzsrqs 141
1 2.2 Czt!1e1l·lS List 1'iomD¤n‘sHydnu1i¤s 145
zz cauieii-is 1.e¤¤aare¢srs.·o4 isi. 1}
24 C.alhell·l7 Leeeaoeasnnrm iss
25 (EXHIBITS m·r1·1ELL-4 THROUGH CA'I'HEL1..·8 WERE 1
_ ____ _ 1 . n1a·rA11~reD or COUNSEL) - .
t' _ Page 2 Page 4 ·
__ 1AP1>EARANCES: 1 1
2. Tigre, Coun-11 a Logan. PA. Documents marked tor identification as
1 sr: As1o.¤.11.e.a0Dosas,ssQUme - 2 Cathell-1 through 3 and prctures Ca1‘11e1l—4 through _
4 `EirstFecleral Plaza _ S ) . _ gg
P.O. Box 1031 ` e ` r `_
1 5 Wilmington, De 19899 3 · ° ' ' _ _
(302) 658-6*00 _ _ _ 4 DON CATI-IELL, having been duly sworn, was examm
g Awww f" um Plmnulf 5 and testified as follows: f
S Reger, Rizzo, Kavulich & Damall, LLP 6 - - -
9 1331 SW1 G1 ‘*§i.’Z“..""1; §1"$.‘i§f 1 7 BY MS- BE'·M*
o e erson e ui - 1 · . 1-
Wilmington, De 19:101 _ 1 1 _ 8 I Q. Mr. Cathell, my name is Cynthia Beam. I-
10 -(s¤2) 652-2611 e - 9 introduced myself earlier. Irepresent Truck Tech in
H A¤¤m=v f¤¤¤=f¤¤¤~=¤ Tm T=¤*· edema 10 litigation that-has been mea on beirut OfDO1’1`S 1
12 ll Hydraulics, Inc. Were here to take your deposition _
Goldfeiu aievdloseph AN ES 12 today. _
_ 13 BY: GAR H. KAPL , Q ‘ ·
222 Delaware Avenue. Sum mo - e 13 1'rn Isure your counsel has explained to you what a
’ 14 wllmingtos. De 19:199 4 14 deposition IS. We're gomg to ask you a series of
ls (302) 6$6e33gl { dm T T e I. _ E 15 questions. Ineed you to respond to those verbally I
I6 Ammy °r ° cn " Wm W M °g`°5' m` — 16 because nods ofthe head and 1.11*1-huh and unh-unh isn'1: {
_ . lfé
17 Zarwin, Baum, DeVito. Kaplan, sense, Teddy, sac. 17 gomg to come out on the transcript later, okay?
BY: DEVON F. SNELL. ESQUTRE 18 A YES 5
. 1% 1515 Market Street, Suite 1200 ` ` l
Philadelphia, Pa 19102 19 Q. If you dont hear me, let me know because I
19 (2*5) $69-2900 20 tend to trail off alter a while. If you don‘t understand
20 ’°‘“°'“°" f°' D°f°“d“'"" C°l°“" I"S“”“°° C°"“"‘“Y 21 a question, please let me know and l'll rephrase it, 1
21 22 okay?
ig _ 23 A. Okay. E
24 — 24 Q. All right. If you need a break at any time, i`_
25 25 please let me know. This isn't an endurance test. This
. 1 (Pages 1 to 4)
KARASCH & ASSOCIATES
800—62l-5689
C- 3 5

Q ____
Case 1 :04-cv-01275-KAJ Document 59-2 Filed 07/08/2005 Page 3 of 3
DON CATHELL
( May 26, 2005
l " I I Page 125 Page 127
1 seen that document before? 1 your agent or anyone else regarding what, if anything, .
2 A. Yes. _ 2 would be covered under your general commercial liability
3 Q. Okay. As you know, Colony Insurance Compan 3 coverage with Colonial? (Sic.)
. - ` 4 is also a defendant in this case, correct? 4 A. Yes, but I don't remember exactly what she
5 A. Yes. - 5 told me this time.
6 Q. All right. And did Don's Hydraulics, Inc., 6 Q. Who did you have that conversation with; your
t 7 hold an insurance policy with Colony Insurance at the 7 agent? A
8 time of this loss in August 2003? 8 A. Pam Busby.
- 9 A. Yes. 9 Q._ Who‘s Pam Busby? l
I 10 Q. Was it your understanding that this policy of 10 A. Agent. ,
ll insurance through Colony was a commercial general _· 11 Q. She's your insurance agent?
12 liability policy? 'Ihat's what's indicated on the dec 12 A. Yes. p
13 sheet anyway. 13 (Document marked for identification as
14 A. Yes. 14 Cathell-10.) .
15 Q. All right. Have you ever had to make a claim 15 BY MS. BEAM: li
16 through any general commercial liability coverage in 16 I Q. Sir, I've handed you what I‘ve marked as
A 17 respect to failure of a hydraulic unit prior to this? 17 exhibit number ten which is entitled, "Project summary
18 A. No. ‘ 18 report Fieldale Farms, Gainesville, Georgia. Prepared on
19 Q. Okay. Do you lcuow what the policy lhnits were 19 October 4, 2003 by Tony Blackman for Fieldale Farms an.§ `
20 of your Colony commercial general liability policy? 20 Don's I-Iydraulics." `
21 A. Not right offi no. 21 And have you ever seen this document before?
22 Q. Okay. Did you or someone on your behalf of 22 A. Yes. .
23 Don's Hydraulics, Inc, pay the premiums for that policy 23 Q. All right. My Hrst question is at the very
24 with Colony on time during the year of Z003? 24 end in my packet, there was an invoice from Fieldale
25 A. As far as I know, es. 25 Farms attached to the re ort. Does this belon; with this
` Page 126 Page 128
1 Q. Has anyone from Colony or anyone else 1 report? This invoice, would that have been prepared
2 suggested to you that your company hadn‘t paid its poli y 2 by --
3 in the year 2003? Hadn‘t paid its premiums? I'm sorry. 3 A. -- one portion of it does.
4 A. Not that I know of 4 Q. Okay. And what portion of the invoice is the
5 Q, Did you or someone else on behalf of Don‘s 5 last page of exhibit number ten would belong to the
6 Hydraulics, Inc., submit a claim for this loss to Colony 6 report?
7 Insurance? 7 A. $16,569.50 I think it is.
8 A. Yes. » S Q. The oil filtering --
9 Q. And what response, if any, did Don's 9 A. Expense.
10 Hydraulics receive after you submitted a claim for this 10 Q. -- expense? Is Tony Blackman with
11 loss? 11 COT-Puritech?
12 A. As I recall the agent told me that we were 12 A. Yes. `
· 13 not covered. 13 Q. I see. And how is it that this report or
14 Q. Did you ask why? 14 project summary report came to be prepared by Tony
15 A. Yes. ‘ 15 Blackman for Don‘s Hydraulics and Fieldale Farms?
16 Q. And what were you told? 16 A. He was their representative that carrie to the
17 A. If I understood it right, it falls back on 17 plant. Spoke with us or me and the plant personnel 0
18 each components manufacturer. 18 filtering the oil. He was the one in charge of the crew
19 MR. KAPLAN: Pm sony. Can you repeat his 19 that came in. - (
20 answer please. 20 Q. Okay. And the service that his crew provided
21 (Whereupon, the court reporter read 21 was the filtering of the oil in the system, cleaning out
22 back the requested portion of 22 the reservoir?
23 testimony.) 23 A. Yes.
24 BY MS. BEAM: 24 Q. And was there anything else?
25 . Okav Di ou ev sation wit I 5 at w s it. _ _f
32 (Pages 125 to 128)
KAILASCI-I & ASSOCIATES
· 800—621-5689
( C — 3 6