Free Response to Motion - District Court of Delaware - Delaware

Case 1 :04-cv—00930-KAJ Document 48 Filed 04/08/2005 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
IN AND FOR THE DISTRICT OF DELAWARE
CHARLES BROWN, :
Plaintiff,
: C.A. No. 04-930 KAJ
V- JURY TRIAL DEMANDED
THE CHURCH INSURANCE COMPANY, :
Defendant.
PLAINTIFF’S OPPOSITION TO DEFENDANT’S
MOTION TO QUASH SUBPOENA FOR DEPOSITION
OF RALPH DURSTEIN, III, ESQ QUIRE
Plaintiff, by and through Counsel, hereby moves this Honorable Court for an Order denying
Defendant’s Motion to Quash Subpoena for the deposition of Ralph Durstein, III, Esquire. The
grounds thereof are as follows:
1. Plaintiff filed this Complaint on or about August 26, 2004, alleging fraudulent conduct
and bad faith by The Church Insurance Company (“Church") for concealing and/or misrepresenting
coverage under a policy issued by Church to Cathedral Community Services ("Cathedral").
Specifically, Brown contends that Church, with intent to defraud and deceive Brown, willfully and
purposefully misrepresented and concealed provisions of coverage in the applicable policy, including
medical payments coverage and coverage of the real estate manager (as an additional insured) of a
property owned by Cathedral and refused, in bad faith, to pay a judgment against its insured, Capital
Management Company (the real estate manager).
2. On March 24, 2005, the Honorable Richard R. Cooch issued an Opinion in a separate but
related litigation tmderlying this current lawsuit as follows:

Case 1 :04-cv—00930-KAJ Document 48 Filed 04/08/2005 Page 2 of 4
"On June 1, 1994, Cathedral entered into a written contract with Capital, whereby
Capital agreed to manage and maintain certain properties owned by Cathedral."’
These properties included 2001 North Market Street where Brown was injured.
(Citations omitted). "Although the written contract expired in 1995, Capital
continued to manage Cathedral’s propert[ies].” At trial, the jury found that even
after the contract had expired, "Capita1 had agreed to assume the duty to maintain the
exterior of 2001 North Market Street and . . . the Wilmington City Code required
[Capital] to maintain the fire escape [for Cathedral].” (Citations omitted).
"On August 23, 1999, the Plaintiff, Charles Brown, was standing underneath an
exterior fire escape attached to the side of 2001 North Market Street. Brown touched
the bottom ofthe fire escape ladder, and the ladder section fell striking Brown on the
head. He suffered a compound, comminuted, depressed skull fracture. The ladder
section fell because of a supporting metal cable, which was severely corroded,
broken, releasing the ladder and a counterweight.
On October 21, 1999, Brown filed a personal injury action against Capital and
Cathedral. Capital answered the Complaint, and asserted a cross-claim against
Cathedral for contribution and indemnification. Brown ultimately settled his claim
for $525,000 against Cathedral and signed a joint tort feasor release. Although
Capital continued to maintain its cross-claim against Cathedral, Cathedral chose not
to contest the cross-claim, and ceased participating in the litigation. The case went
to trial on September 10, 2001.
On September 14, 2001, the jury returned a verdict in favor of Brown. The jury
apportioned liability 60% against Capital and 40% against Cathedral, and awarded
Brown damages in the amount of $2,250,O00."2
As part of the underlying litigation regarding the coverage issue of Church for its additional
insured, the real estate manager, Capital, Brown filed a Motion to Compel in the Superior Court
seeking production of the claims adjustor’s file, including documents contended by Church to be
privileged. (Ex. A-3-4).
3. In the separate but related litigation of Brown v. The Church Insurance Company, et al,
C.A. No. 02C-06-196-RRC, Brown moved to compel the production of forty-one doctunents that
‘Capita1 Management Company v. Brown, 813 A.2d 1094, 1095 (Del.
2003).
2Brown v. Church Insurance Company, et al, Del.Super., C.A. 99C-10-
210, Cooch, J. (Nov. 17, 2003) (ORDER).

Case 1 :04-cv—00930-KAJ Document 48 Filed 04/08/2005 Page 3 of 4
Church contended were privileged communications between Church and its various Counsel. (Ex.
B-6). Following oral argument on the Motion to Compel the production ofthe documents, Church
produced the documents for an in camera review by the Court. On Jmre 3, 2004, Commissioner
Reynolds issued an Opinion and Order requiring Church to produce five of the documents which
included:
"1. Letter to Ralph K. Durstein from Lindgren, Nov. 19, 1999 [Log #2].
2. Letter to Ralph K. Durstein, Esquire, from Donald C. Taylor, showing a copy of M.
Lindgren, Nov. 22, 1999 [Log #3].
3. Letter to Mike Lindgren from Daniel P. Bemiett, Esquire, Jan. 9, 2001 [Log #6]
(privileged portions redacted].
4. M. Lindgren’s handwritten notes re meeting with defense counsel, undated. [Log #34].
5. Letter to Mike Lindgren from Tracy A. Burleigh, Esquire, September 6, 2001 [Log
#40]." (Ex. B-25-26).
4. It is undisputed that in the underlying litigation of Brown v. Cathedral Community
Services and Capital Management Company, that Cathedral, owner ofthe building, never disclosed
the medical payments coverage provision of the insurance policy nor did it disclose that the real
estate manager, Capital Management Company, was an additional insured under the policy. The
complete litigation file of Ralph Durstein, III, Esquire is relevant and material to this litigation.
Further, the documents that the Superior Court compelled Church produce are correspondence
between Counsel for Cathedral and Church. Those letters specifically doctunent Cathedral’s
awareness of Capital Management Company’s coverage under Cathedral’s policy with Church.
Moreover, a January 9, 2001, letter from Daniel Bennett, Esquire, then Counsel for Cathedral, to
Mike Lindgren, senior claims supervisor of Church, referred to correspondence by Mr. Durstein in
November of 1999 to Church putting Church on notice of Church’s duty to defend Capital

Case 1 :04-cv—00930-KAJ Document 48 Filed 04/08/2005 Page 4 of 4
Management Company. (Ex. C-27).
WHEREFORE, based on the foregoing, Plaintiff respectfully requests that this Court enter
an Order denying Defendant’s Motion to Quash Subpoena for Deposition of Ralph Durstein, III,
Esquire.
POTTER CARMINE & AARONSON, P.A.
/ lSTEPHE§ B. POTTER, ID #298
840 N. Union Street
Wilmington, DE 19899
(302) 658-8940
Attomey for Plaintiff
DATED: April 7, 2005