Free Motion to Intervene - District Court of Delaware - Delaware

R Case 1 :04-cv-00163-GIVIS Document 242 Filed 09/13/2006 Page 1 of 3

I IN THE UNITED STATES DISTRICT COURT
_.[ FOR THE DISTRICT OF DELAWARE
I
1 DONALD M. DURKIN CONTRACTING, E
Y INC., Plaintw . ;
A vs. i _
i CITY OF NEWARK, et al., Defendants 1 CASE NO. 04-0163-GMS
and E
1 1 _ V
1 1
I CITY OF NEWARK, T hird-Party Plaintgf g
VS. :
1 { . ‘
1 DONALD M. DURKIN CONTRACTING,
I 1 FEDERAL INSURANCE COMPANY and g
p URS CORPORATION, T hird-Party I _
‘- I Defendants 5
A 1 MOTION TO INTERVENE BY ST. PAUL FIRE
l & MARINE INSURANCE COMPANY
l
E St. Paul Fire & Marine Insurance Company (hereinafter "St. Paul") hereby moves `
__ this Court for entry of an Order permitting it to intervene in this matter pursuant to Fed.
R. Civ. P. 24(a) solely for the purpose of participating in the conference concerning Jury
1
Verdict Form and in support thereof states the following:
1
l. As a result of the above-captioned matter, the Defendants presented a
E claim for coverage under a policy issued by St. Paul to the City of Newark, Policy
' GP093 10121 .
- 2. Some ofthe allegations asserted in the Complaint filed by the Plaintiffs
fall within the coverage of that policy and St. Paul has been defending the City of
Newark and Council Members under a Reservation of Rights letter.
-
U

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Case 1 :04-cv-00163-GIVIS Document 242 Filed O9/13/2006 Page 2 of 3
N 3. The St. Paul policy contained various terms, conditions, and exclusions
that define and/or limit the available coverage and some ofthe alleged wrongdoings and
l
injuries fall outside the scope of coverage of the St. Paul policy.
4. Because some of the claims in the lawsuit are potentially covered, while
_ others are not, it is necessary that the J ury Verdict Form in this matter clearly
differentiate whether liability and damages are being imposed for wrongdoing and
i damages that are within the scope of the coverage or for wrongdoing and damages that
are not covered by the St. Paul policy. This is necessary so that after the trial is
f concluded, it can be determined the extent to which the St. Paul policy potentially affords
coverage for any Judgment.
5. The Delaware Supreme Court has not addressed whether the insured or the
· insurance company bears the burden of apportioning or allocating damages, when a
i Verdict includes elements which may fall within coverage and others which may be
excluded from coverage.
6. The Delaware Superior Court has addressed the issue in TIG Insurance v.
l Royal Insurance Company of America, CA. No. 02C-04-126 JRS (Del. Super., May I0,
2004) [Exhibit "A"]. The Court in TIG Insurance, citing cases mostly from Florida and
Massachusetts, concluded that the burden was on the insurance company: l
A [T]he insurer must request an allocation of damages that will allow the parties to
more readily address the coverage issues after the trial. Id. at 14.
J 7. St. Paul has asked the attorneys defending the City of Newark and Council
Members to request three additional Questions (or subparts) on the Jury Verdict Form to
the Questions proposed by the Plaintiff A copy of the Jury Verdict Form with those
l
All
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Case 1 :O4—cv-00163-GI\/IS Document 242 Filed O9/13/2006 Page 3 of 3
‘ additional questions (II.A.1., ILB.2-5. and II.C.1.) highlighted is attached hereto as
i Exhibit "B".
1
8. Fed. R. Civ. P. 24(a) provides in parts:
‘ "Upon timely application, anyone shall be permitted to intervene in an action:
I (2) when the applicant claims an interest relating to the property or the
transaction which is the subject to the action and the applicant is so
f situated that the disposition ofthe action may as a practical matter
impair or impede the app1icant’s ability to protect that interest,
unless the applicant’s interest is adequately represented by existing
_ parties?
Intervention by St. Paul is necessary to assure that the Jury Verdict Form makes it
I l
ii possible to determine the potential applicability of the St. Paul policy to any Judgment
I that is entered. _
I 9. St. Paul does not seek to intervene to participate in the actual trial itself,
but only to intervene to the extent necessary to participate in the preparation ofthe Jury
ik Verdict Form.
_ WHEREF ORE, it is requested that this Court permit St. Paul to intervene in this
g matter solely for the ptupose of submitting Requests for the Jury Verdict Form and
participating in any conference concerning the Jury Verdict Form.
& HENDER LP
if
J 1 William J. attie, lII,lEsq. — ID # 953
;, 300 Delaware Avenu , Sui e 1015
7 P. O. Box 588
Wilmington, DE 19899-0588
302-778-1200
Attorneys for St. Paul Fire & Marine
. I Insurance Company
$ Dated: Ol [ { Q Gé
] . .
.l
.1 -
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