Free Objection - District Court of California - California

Case 3:07-cv-05064-WHA

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1 SEDGWICK, DETERT, MORAN & ARNOLD LLP BRUCE D. CELEBREZZE Bar No. 102181 2 [email protected] ROBERT N. BERG Bar No. 099319 3 [email protected] DEAN J. MCELROY Bar No. 213132 4 [email protected] One Market Plaza 5 Steuart Tower, 8th Floor San Francisco, California 94105 6 Telephone: (415) 781-7900 Facsimile: (415) 781-2635 7 Attorneys for Defendant 8 NATIONAL FIRE INSURANCE COMPANY OF HARTFORD 9 10 11 12 FREDERICK MEISWINKEL, INC., a 13 California corporation 14 15 v. Plaintiff, CASE NO. 07-05064 WHA MED UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

16 NATIONAL FIRE INSURANCE COMPANY OF HARTFORD, 17 Defendant. 18 19 20 21 22 23

DEFENDANT NATIONAL FIRE INSURANCE COMPANY OF HARTFORD'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF JON S. BRICK SUBMITTED BY PLAINTIFF IN SUPPORT OF ITS OPPOSITION TO NATIONAL'S MOTION TO STAY PROCEEDINGS Date: Time: Crtrm: Judge: March 27, 2008 8:00 a.m. 9 William H. Alsup

Defendant National Fire Insurance Company of Hartford ("National") submits the

24 following evidentiary objections to the declaration of Jon S. Brick dated March 6, 2008 ("the 25 Brick Declaration") submitted by plaintiff Frederick Meiswinkel, Inc. ("FMI") in support of its 26 opposition to National's motion to stay proceedings. 27 28 1
CASE NO. 07-05064 WHA MED

DEFENDANT'S EVIDENTIARY OBJECTIONS TO THE DECL. OF JON BRICK SUBMITTED BY PLT. IN SUPPORT OF ITS OPP. TO DEF.'S MOT. TO STAY PROCEEDINGS

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1

1.

In ¶ 2 of the Brick Declaration, Mr. Brick testifies: "FMI was insured under three

2 policies of insurance issued by Transcontinental Insurance Company, now [National], for the 3 periods January 1998 through January 2001. Defense of the underlying actions was tendered to 4 National pursuant to these polices and, in August of 2004, National agreed to defend FMI by 5 retaining the services of attorney Geoff Wood . . . ." National objects to the foregoing testimony 6 on the grounds that it is not based on personal knowledge, but is inadmissible hearsay. Mr. 7 Brick has not demonstrated that he has personal knowledge of the issuance of insurance policies 8 by Transcontinental Insurance Company, the tender of the underlying actions, or National's 9 response to the tender. To the extent that Mr. Brick learned of the issuance of the insurance 10 policies, the tender of the underlying actions, or National's response to the tender through a 11 conversation with a third person or a review of the document, the same constitutes inadmissible 12 hearsay. See Fed.R.Evid. 602, 802. Therefore, National requests that the Court strike the 13 foregoing testimony from ¶ 2 of the Brick Declaration. 14 2. In ¶ 3 of the Brick Declaration, Mr. Brick testifies: "In July of 2006, however, the

15 attorney retained by National notified its claims handler, James Teater, of problems associated 16 with National's refusal to pay for the reasonable and authorized attorneys' fees incurred in the 17 defense of FMI." National objects to the foregoing testimony on the grounds that it lacks 18 foundation and is not based on personal knowledge but constitutes inadmissible hearsay. Mr. 19 Brick's testimony is based on out-of-court statements made by Geoff Wood in a letter dated July 20 13, 2006, which is attached as Exhibit 1 to the Brick Declaration, offered to prove the truth of 21 the matter asserted. See Fed.R.Evid. 602, 802. Therefore, National requests that the testimony 22 set forth in ¶ 3 of the Brick Declaration, as well as Exhibit 1, be stricken in their entirety. 23 3. In ¶ 4 of the Brick Declaration, Mr. Brick testifies: "As a result of CNA's

24 wrongful refusal to defend its insured, FMI retained our law firm to protect its interest. Under 25 the threat of litigation, National agreed ultimately, along with one of FMI's other insurers, 26 Zurich North America, to jointly retain the services of the law firm of Burnham & Brown to 27 continue with FMI's defense." National objects to the foregoing testimony on the grounds that it 28 lacks foundation and is not based on personal knowledge but constitutes inadmissible hearsay. 2
CASE NO. 07-05064 WHA MED

DEFENDANT'S EVIDENTIARY OBJECTIONS TO THE DECL. OF JON BRICK SUBMITTED BY PLT. IN SUPPORT OF ITS OPP. TO DEF.'S MOT. TO STAY PROCEEDINGS

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1 Mr. Brick has not demonstrated that he has personal knowledge of CNA's decision regarding 2 whether or not to defend FMI, Zurich North America's decision to defend FMI, or the insurers' 3 determination to retain the law firm of Burnham & Brown. To the extent that Mr. Brick learned 4 of the actions taken by National and/or Zurich through a conversation with a third person or a 5 review of a document, the same constitutes inadmissible hearsay. See Fed.R.Evid. 602, 802. In 6 addition, Mr. Brick has failed to provide a foundation for the statement that National agreed to 7 retain the law firm Burnham & Brown "[u]nder the threat of litigation." Moreover, Mr. Brick's 8 characterization of CNA's decision as a "wrongful refusal" and his characterization of National's 9 motivation as arising from the "threat of litigation" constitute impermissible argument and 10 statements of legal conclusions without factual foundation. Therefore, National requests that the 11 testimony set forth in ¶ 4 of the Brick Declaration be stricken in its entirety. 12 4. In ¶ 7 of the Brick Declaration, Mr. Brick testifies: "Notwithstanding this

13 agreement, National continued its pattern of practice of refusing to pay for its share of 14 reasonably incurred defense fees, delayed payment of invoices, and engaged in other conduct 15 establishing its failure to provide a full and complete defense. It became clear that its efforts 16 were more geared towards finding a way out of coverage than in defending its insured, FMI." 17 National objects to the foregoing testimony on the grounds that it is not based on personal 18 knowledge but constitutes inadmissible hearsay. Mr. Brick has not demonstrated that he has 19 personal knowledge of National's actions and conduct in providing a defense for FMI. To the 20 extent that Mr. Brick learned of the actions and conduct of National as set out in his testimony 21 through a conversation with a third person or a review of a document, the same constitutes 22 inadmissible hearsay. See Fed.R.Evid. 602, 802. In addition, Mr. Brick's testimony in ¶ 7 23 constitutes impermissible argument and opinion and statements of legal conclusions without 24 factual foundation. Therefore, National requests that the testimony in ¶ 7 of the Brick 25 Declaration be stricken in its entirety. 26 5. In ¶ 8 of the Brick Declaration, Mr. Brick testifies: "Upon receipt of this decision

27 to wrongfully withdraw from the defense of its insured, FMI once again enlisted the services of 28 our firm to attempt to compel National to abide by its contractual terms and comply with 3
CASE NO. 07-05064 WHA MED

DEFENDANT'S EVIDENTIARY OBJECTIONS TO THE DECL. OF JON BRICK SUBMITTED BY PLT. IN SUPPORT OF ITS OPP. TO DEF.'S MOT. TO STAY PROCEEDINGS

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1 California law. . . . These letters evidence the continued refusal on the part of National to 2 investigate the claim and provide its insured with a defense." National objects to the foregoing 3 testimony on the grounds that it constitutes impermissible argument and opinion, and involves 4 legal conclusions without factual support or foundation. Therefore, National requests that the 5 foregoing testimony set forth in ¶ 8 of the Brick Declaration be stricken. 6 6. In ¶ 9 of the Brick Declaration, Mr. Brick testifies: "As evidenced by this

7 correspondence, FMI repeatedly provided CNA [National] with sufficient evidence to establish a 8 duty to defend. National refused to engage in any type of investigation on behalf of its insured, 9 and continued to deny a defense to FMI." National objects to the foregoing testimony on the 10 grounds that it is not based on personal knowledge but constitutes inadmissible hearsay. Mr. 11 Brick has not demonstrated that he has personal knowledge of National's decision regarding 12 whether or not to provide a defense to FMI. To the extent that Mr. Brick learned of National's 13 decision regarding whether or not to provide a defense to FMI through a conversation with a 14 third person or a review of a document, the same constitutes inadmissible hearsay. See 15 Fed.R.Evid. 602, 802. In addition, the testimony in ¶ 9 constitutes impermissible argument and 16 opinion, and involves statements of legal conclusions without factual foundation or support. 17 Therefore, National requests that the testimony set forth in ¶ 9 of the Brick Declaration be 18 stricken in its entirety. 19 7. In the first sentence of ¶ 10 of the Brick Declaration, Mr. Brick characterizes

20 materials provided to National in a December 19, 2007 letter as "even further evidence of 21 National's obligation to defend." National objects to the characterization on the grounds that it 22 constitutes impermissible argument and opinion, and involves statements of legal conclusions 23 without factual foundation or support. Therefore, National requests that the testimony set forth 24 in the first sentence of ¶ 10 of the Brick Declaration be stricken. 25 8. In ¶ 11 of the Brick Declaration, Mr. Brick testifies: "National failed to have a

26 claims representative present at these mediations, and refused to offer any money towards the 27 settlement ­ relying on its decision to deny a defense. The failure of National to appear for 28 mediation has had a chilling effect on the settlement process for several reasons. First, National 4
CASE NO. 07-05064 WHA MED

DEFENDANT'S EVIDENTIARY OBJECTIONS TO THE DECL. OF JON BRICK SUBMITTED BY PLT. IN SUPPORT OF ITS OPP. TO DEF.'S MOT. TO STAY PROCEEDINGS

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1 was not at the mediation with any money to contribute towards settlement. Second, the refusal 2 on the part of National to participate provided the excess carrier over National's primary 3 coverage a very simple and easy response to our demand that it contribute towards a settlement. 4 That is, the excess carrier obviously will not contribute until such time as the primary carrier has 5 exhausted." 6 National objects to the foregoing testimony on the grounds that it is not based on

7 personal knowledge but constitutes inadmissible hearsay. Mr. Brick has failed to set forth facts 8 showing that he personally appeared at the mediations referenced in ¶ 11 of the Brick 9 Declaration. To the extent that Mr. Brick learned of what happened at the referenced mediations 10 through a conversation with a third person or a review of a document, the same constitutes 11 inadmissible hearsay. See Fed.R.Evid. 602, 802. In addition, the foregoing testimony set out in 12 ¶ 11 of the Brick Declaration constitutes impermissible argument and opinion, and involves 13 statements of legal conclusions without factual support or foundation. Therefore, National 14 requests that the foregoing testimony set out in ¶ 11 of the Brick Declaration be stricken. 15 9. In ¶ 12 of the Brick Declaration, Mr. Brick contends that "[t]his Court should be

16 aware of the fact . . .." National objects to the foregoing testimony on the grounds that it 17 constitutes impermissible argument and opinion. Therefore, National requests that the foregoing 18 testimony in ¶ 12 of the Brick Declaration be stricken. 19 10. In ¶ 13 of the Brick Declaration, Mr. Brick testifies in part: "FMI has incurred in

20 excess of $85,000 in attorneys' fees and costs as a result of the above-described bad faith 21 conduct." National objects to the foregoing testimony on the grounds that it lacks foundation as 22 to the purported amount of fees and costs incurred. Mr. Brick has not attached any 23 documentation which would support the statement regarding the amounts incurred by FMI. In 24 addition, Mr. Brick's characterization that the purported amounts incurred by FMI were "as the 25 result of the above-described bad faith conduct" constitutes impermissible argument and opinion, 26 and involves the statements of legal conclusion without factual foundation or support. 27 Therefore, National requests that the foregoing testimony set forth in ¶ 13 of the Brick 28 Declaration be stricken. 5
CASE NO. 07-05064 WHA MED

DEFENDANT'S EVIDENTIARY OBJECTIONS TO THE DECL. OF JON BRICK SUBMITTED BY PLT. IN SUPPORT OF ITS OPP. TO DEF.'S MOT. TO STAY PROCEEDINGS

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1 2 3 For the foregoing reasons, defendant National Fire Insurance Company of Hartford

4 respectfully requests that its evidentiary objections to the Declaration of Jon S. Brick, which is 5 dated March 6, 2008, be sustained. 6 7 DATED: March 13, 2008 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
CASE NO. 07-05064 WHA MED

SEDGWICK, DETERT, MORAN & ARNOLD LLP

By:

/s/ Dean J. McElroy BRUCE D. CELEBREZZE ROBERT N. BERG DEAN J. MCELROY Attorneys for Defendant NATIONAL FIRE INSURANCE COMPANY OF HARTFORD

DEFENDANT'S EVIDENTIARY OBJECTIONS TO THE DECL. OF JON BRICK SUBMITTED BY PLT. IN SUPPORT OF ITS OPP. TO DEF.'S MOT. TO STAY PROCEEDINGS