Free Response - District Court of Arizona - Arizona

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Wayne Gill, Esq. (Fla Bar. No. 114953) WALTON LANTAFF SCHROEDER & CARSON LLP 1700 Palm Beach Lakes Boulevard, 7th Floor West Palm Beach, Florida 33401 Telephone: (561) 689-6700 Facsimile: (561) 689-2647 Steven Plitt, Esq. (State Bar No. 007481) Daniel Maldonado, Esq. (State Bar No. 018483) BESS KUNZ, A Professional Corporation 3838 North Central Avenue, Suite 1500 Phoenix, Arizona 85012-1092 Telephone: (602) 331-4600 Facsimile: (602) 331-8600 Attorneys for Defendant/Counter-Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA U-Haul International, Inc.; U-Haul Company Of Pennsylvania; U-Haul Company Of Florida; and Republic Western Insurance Company, Plaintiffs, vs. Lumbermens Mutual Casualty Company, Defendants. No. CIV 04-0662 PHX DGC (Maricopa County Superior Court Cause No. CV 2004-002438) DEFENDANT'S RESPONSE TO PLAINTIFFS' OBJECTIONS TO DEFENDANT'S CALCULATION OF DAMAGES FOR THE FERNANDEZ MATTER (Assigned to the Honorable David G. Campbell)

Defendant, Lumbermens Mutual Casualty Company ("LMC"), by and through its
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undersigned counsel, respectfully lodges its following response to plaintiffs' objection to defendant's damages calculation regarding the Fernandez matter, which defendant filed on March 9, 2007 pursuant to the court's specific instruction. Defendant maintains all
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of the objections and legal arguments that it previously made at trial, and does not waive any of them. As to each enumerated paragraph of plaintiffs' objection to defendant's calculation, defendant further states as follows:

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1.

Defendant's calculation of damages for the Fernandez matter, including

the attachments attached thereto marked Exhibits "A" and "B," set forth defendant's calculation of Republic Western's damages claim against LMC regarding the Fernandez matter.

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2.

(a)

Plaintiffs' trial exhibit #28 lists alleged LAE payments by Republic

Western totaling $2,152,736.23. LMC's statement that the total LAE listed on exhibit #28 is $2,152,736.23 is correct because that is what is shown on exhibit #28 as being the total LAE paid by Republic Western regarding the Fernandez matter.

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(b)

LMC does not object to factoring in the $100,000 Vela Mante

recovery and the $274,976 Veloz settlement even though they are not identified as such in Mr. Matush's Fernandez payment summary, which is the first page of exhibit #28. Factoring in of these amounts changes the balance at the bottom of defendant's exhibit "A" to $1,216,942.73. 3. a) Plaintiffs' calculation of the amount of plaintiffs' damages claim

regarding the Fernandez matter is based, in part, on plaintiffs' allegation that the Martinez settlement exhausted the aggregate limits of Republic Western's underlying policies RGMM and RXMM prior to the Fernandez settlement. Defendant therefore does not have the burden of proving that the Martinez settlement and LAE did not

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exhaust the underlying policies (RGMM and RXMM). Instead, whether the Martinez settlement and LAE exhausted RGMM's and RXMM's aggregate limits prior to the Fernandez settlement is part of plaintiffs' burden of proof on plaintiffs' damages claim

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regarding the Fernandez matter. b) Plaintiffs have never produced any such records, and have not

produced any invoices, bills, or records substantiating any of the alleged Martinez indemnity and LAE payments listed in plaintiffs' trial exhibit #30.

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c)

Plaintiffs contend in paragraph 3 of their objection that "Trial

Exhibit 31 substantiates the indemnity and LAE payments in connection with the Martinez claim." Plaintiffs may have meant to refer to plaintiffs' trial exhibit #30 entitled "Martinez-Expense History" instead of exhibit #31, which the court did not

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admit into evidence. Mr. Matush testified at his deposition that the exhibits to his deposition (now trial exhibits #28, #29, and #30) do not show whether any of the payments made in regard to Martinez were made before the Fernandez settlement (Matush Deposition, p. 51, ll. 13-17), and that there is nothing in exhibit #112 to his deposition (now trial exhibit #30) that gives the dates of those payments. (Matush Deposition, p. 53, ll. 18-20) Trial exhibit #30, which is an unsupported summary of alleged Martinez indemnity and LAE payments, does not substantiate the indemnity and LAE payments in connection with the Martinez claim, and does not provide the dates of the listed payments.

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d)

Defendant, in the Joint Pretrial Order, raised the issue of lack of

exhaustion of Republic Western's RGMM's and RXMM's aggregate limits as a result of the Martinez claim. See Defendant's Response to Plaintiffs' stated issue #30 in which

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plaintiffs contended that: "The remaining Republic Western policy limit available after the settlement of the Martinez claim was $5,000,000." Defendant's response included defendant's statement that: ". . . Since plaintiffs have not provided defendant with copies of the bills for LAE paid by Republic Western on the Martinez claim, defendant

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denies the allegation contained in issue #30." (Proposed Final Pretrial Order, p. 12) DATED this 14th day of March, 2007. WALTON LANTAFF SCHROEDER & CARSON LLP Wayne T. Gill, Esq. Southtrust Center 1700 Palm Beach Lakes Blvd., #700 West Palm Beach, FL 33401 KUNZ PLITT HYLAND DEMLONG KLEIFIELD

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By: w/Daniel Maldonado Daniel Maldonado, Esq. Steven Plitt, Esq. 3838 N. Central Ave., Suite 1500 Phoenix, AZ 85012-1902 Attorneys for Defendant

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CERTIFICATE OF SERVICE Filed electronically this 14th day of March, 2007 and copies electronically served/mailed to: Gerald Gaffaney, Esq. David J. Ouimette, Esq. Attorneys for Plaintiffs/Counter-Defendants Mariscal, Weeks, McIntyre & Friedlander, P.A. 2901 North Central, Suite 200 Phoenix, Arizona 85012 Bruce Friedman, Esq. Mark S. Fragner, Esq. Attorneys for Plaintiffs/Counter-Defendants Rubin, Fiorella & Friedman, LLP 292 Madison Avenue New York, New York 10017

s/ Tracey Barnes
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