Free Motion to Preclude - District Court of Delaware - Delaware

Case 1 :04-cv-00163-GIVIS Document 210 Filed 08/24/2006 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DONALD M. DURKIN CONTRACTING, INC. )
Plaintiff, )
)
v. ) CIVIL ACTION NO. 04-0163
)
CITY OF NEWARK, et al., )
Defendants, )
)
and )
)
CITY OF NEWARK, )
Third—Party Plaintiff, )
)
v. )
)
FEDERAL INSURANCE COMPANY, )
Third—Party Defendant. )
FEDERAL’S MOTION TO PRECLUDE
ANY EVIDENCE RELATING TO THE CITY OF NEWARK’S ALLEGED CLAIMS
AGAINST FEDERAL
Third—Party Defendant, Federal Insurance Company ("Federal"), moves to
preclude from admission into evidence at trial any reference to or evidence of the claims of
Third-Party Plaintiff City of Newark (the ‘°City"), under the Performance Bond against Federal.
In support thereof, Federal avers as follows:
1. On October 7, 2005, the Court entered a scheduling order that provided
that the parties’ trial briefs "are intended to provide full and complete disclosure ofthe parties’
respective theories of the case."
2. The Order ihrther provided that "[a]ny theory of liability or defense that is
not expressed in a party’s trial brief will be deemed waived.”

Case 1 :04-cv-00163-GIVIS Document 210 Filed 08/24/2006 Page 2 of 3
3. On August 21, 2006, the City filed a 10-page trial brief It contains only
three vague sentences relating to the City’s claims against Federal. In its trial brief} the City
provided:
• "The City is also entitled to damages from Federal by virtue of its
obligation under the performance bond." (Trial Brief at 3.)
• "The City followed the Bond procedures." Q
• "As to Federal, it refused to honor its bond asserting that Durkin
was correct in claiming that the reservoir could not be built as
designed." Q at 4.
4. Clearly, the City has failed to state what its claims are against Federal.
5. For example, as the party seeking coverage under the Performance Bond,
it is the City’s burden alone to establish that it complied with the specific conditions precedent
identified by Federal. gag Nat’1 Surety Co. v. Architectural Decorating Co., 226 U.S. 276, 281
(1912) (burden of complying with condition precedent rests with beneficiary under bond).
6. Not only did the City fail to properly identify any specific provision under
the Performance Bond, but also it failed to describe in a.ny manner how it complied with any of
the conditions precedent to coverage under the Performance Bond.
7. The City also failed to mention a single word in support of Count II
(relating to breach of implied covenant of good faith and fair dealing) of its Third-Party
Complaint against Federal.
S. The City plainly ignored this Court’s Order by failing to express its
theories of liability and damages. As a result, the City’s theories of liability against Federal have
been waived.
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Case 1 :04-cv-00163-GIVIS Document 210 Filed 08/24/2006 Page 3 of 3
WHEREFORE, for these reasons and those set forth in the accompanying
Opening Brief, which is incorporated herein by reference, any reference or evidence relating to
the City’s claims against Federal should be excluded horn evidence at trial.
Respectfully submitted,
/s/' Kevin W. Goldstein
Kevin W. Goldstein, Esquire
Delaware Bar No. 2967
STRADLEY, RONON, STEVENS & YOUNG, LLP
300 Delaware Avenue
Suite 800
Wilmington, DE 19801
(302) 576-5850
(302) 576-5858 Fax
Samuel J. Arena, J r., Esquire (pro hac vice)
Patrick R. Kingsley, Esquire (pro hac vice)
David M. Burkholder, Esquire (pro hac vice)
STRADLEY, RONON, STEVENS & YOUNG, LLP
2600 One Commerce Square
Philadelphia, PA 19103-7098
(215) 564-8000
(215) 564-8120 Fax
Attorneys for Third-Party Defendant,
Federal Insurance Company
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