Liberty Insurance Corporation v. New York Marine And General Insurance Company ( 2022 )

JAFFE & ASHER up ATTORNEYS AT LAW PLEASE RESPOND TO WHITE PLAINS OFFICE 600 THIRD AVENUE New York, NY 10016-1901 ESTABLISHED 1974 445 HAMILTON AVENUE, SUITE 405 2 | 2-68 7-3000 www.,JAFFEANDASHER.COM Wuite Piains, NY 10601 ToL. FREE 888-625-9895 TEL 212-687-3000 Fax 914-437-8076 September 15, 2022 VIA ECF Hon. Denise L. Cote, U.S.D.J. Daniel Patrick Moynihan United States Courthouse 500 Pearl Street New York, NY 10007-1312 Re: Liberty Insurance Corporation v. New York Marine and General] Insurance Company, American Empire Surplus Lines Insurance Company, and Hudson Excess Insurance Company Civil Action No. : 1:22-cv-01081-DLC Dear Judge Cote: Our firm represents plaintiff Liberty Insurance Corporation (“Liberty”) in the referenced matter. This letter is submitted pursuant to paragraph 2. C. of Your Honor’s Individual Practices in Civil Cases, in opposition to the letter motion filed on September 13, 2022, by defendant Hudson Excess Insurance Company (“Hudson”), seeking permission to move to quash the subpoena that Liberty served on Hudson’s insured, Skittles Service Corp. (“Skittles”). In this action, Liberty seeks recovery of co-insurance contribution from defendants for a common insured, 45 John NY LLC (“45 John”), for an underlying tort action entitled Juarez v. Primework Construction Corp.. Avacon Management LLC and 45 John NY LLC, Index Number 160728/2017, pending in New York Supreme Court, New York County (the “Underlying Action”). A key determinative issue as to whether Hudson owes coverage to 45 John is whether Hudson’s Named Insured, Skittles, “agreed in writing in a contract or agreement” to include 45 John, as a additional insured. Attached, as Exhibit “A”, is a copy of the written agreement that we believe satisfies this requirement. We attempted to authenticate this document via Notice to Admit, to no avail. We even offered to withdraw the Skittles subpoena if Hudson would stipulate to the authenticity of this document, that it was signed by Avacon and Skittles on the dates indicated, and that it applies to the project at issue. Hudson refused; as such, we need to move forward with discovery on this issue. We specifically issued the subpoena to address this issue. This deposition is not duplicative of any discovery in the Underlying Action. The individual deposed, Isaias Barrera Perez (“Barrera”), was a foreman and he was not involved in the contracts related to the Underlying Action. His testimony related to the tort issues — the CALIFORNIA FLORIDA GEORGIA New JERSEY TEXAS Hon. Denise L. Cote, U.S.D.J. September 15, 2022 Page 2 cause of the alleged accident. Barrera did not testify on any subject related to the key coverage issues herein. Indeed, Barrera specifically testified that he had no knowledge of the written contracts related to the job. In contrast, in this action, we seek a deposition to address insurance issues, specifically the contracts related to the job, including the exhibit annexed hereto. As such, we served the subpoena on a principal of Skittles, Araceli Rivero. A copy of the Affidavit of Service is attached hereto as Exhibit “B”. Hudson’s argument that Liberty should not be allowed to depose a different Skittles witness to testify about the contract documents because it could elicit inconsistent testimony is completely frivolous. First, Barrera could not testify about the contract because he lacked knowledge. Second, there is no rule of law preventing discovery because it may elicit inconsistent testimony. The pending summary judgment motion in the Underlying Action should not preclude or delay discovery herein. We have a discovery deadline of October 28, 2022. The motion in State Court does not stay discovery herein. Hudson’s assertion that Skittles was dissolved in 2020 is also not a legitimate reason to quash the Skittles subpoena. Even if Skittles was dissolved as a corporation in 2020, it still must respond to a subpoena concerning pre-dissolution activity. McCready v. Nat'l Credit Inc., No. 07 CIV. 7705 DAB/JCF, 2010 WL 815079 (S.D.N.Y. Mar. 9, 2010). Finally, Hudson’s application for permission to move to quash and/or any motion to quash the Skittles subpoena should be denied because it is untimely. The subpoena was returnable September 12, 2022. Pursuant to Fed. R. Civ. P. 45(d)(3), in order to be timely, a motion to quash a subpoena generally must be filed before the return date of the subpoena. In re Rule 45 Subpoena Issued To JP Morgan Chase Bank, N.A., 319 F.R.D. 132 (S.D.N.Y. 2016). For the above reasons and law, Liberty respectfully submits that Hudson’s application for permission to move to quash the Skittles subpoena should be denied. Moreover, Skittles did not appear on the date noticed in the Skittles subpoena. We received an email from counsel purporting to represent Skittles in connection with the subpoena, Jonathan Banks, Esq. Mr. Banks advised us that he was unavailable to go forward with Skittles’ deposition on the date in the subpoena and would get back to us with an adjourned date. He did not. Liberty respectfully requests that this Court direct Skittles to appear for a deposition in compliance with the subpoena. Permission for Hudson Excess Respee aysubrmutied. Insurance Company to move . to JAFFE & ASHER, LLP quash the subpoena is denied. 9/19/22 By: Went Praag Florence Langer, Esq. DENISE COTE United States District Judge Hon. Denise L. Cote, U.S.D.J. September 15, 2022 Page 3 FL:fl cc: William F. Stewart, Esq. (via ECF w/ exh.) Nancy Zangrilli (via ECF w/ exh.) Daniel F. McFaul, Jr., Esq. (via ECF w/ exh.) Michael Panayotou, Esq. (via ECF w/ exh.) Jonathan Banks, Esq. (via email w/ exh.) Exhibit A SUBCONTRACT AGREEMENT RIDER (CONTRACTOR/SUBCONTRACTOR) indemnity. in consideration of fhe Contract Agreement, and to the fullest exten! permitted by iow, the Subconirecior shall defend and shall indemnify, and hola normiess, af Subcorirociors sole exoeme, fhe Contraction ab entmes the Contracior ’s required indemnify and hoid harmiess. the Owner of tne properly. ana the officers, directors. agents. employees. successors and assians of each of from and agains! oll fablity or claimed liabiily for bodily aniury or death to any operons}, and for any and all oroperly damage or economic damage. including oll attomey fees, disbursements and relofed costs, arising out of or resulling from ine Work covered by this Contract Agreement! fo the exient such Work was performed by or contracted through the Subcontracior or by anyone for whose acts the Subcontractor moy be held fable, excluding only labmiy created by the sole and exclusive negligence of fhe Indemnified Parfles. This indemnity agreement! shat survive the compiction of the Work specified in tne Contract Agreement. 2. Insurance. The Subcontractor shall oracure ond shall maintain unfl find acceotonce of ine Work. such insurance as wil orotec! the Contractor, all entities ‘ne Caoniracior □ required Indernnily ond hold marvess, Ihe Owner, and ther officers, directors, agenis and emmioyees. for claims ansing out of or resulling from Subcontracior’s Work under this Conract Agreement’, whether oerformed by the Suocontroctor, of by anyone directly or indirechy emoloyed by Subcorniractor. or by anyone for whose acts Subcoriractar may be Hoble. Such insurance shal pe prowided by an insurance carrer rated “A-" or better py A.M. Bes! and lawfully authorized to do business in the lurisdiction where the Work is being oerformed. Si. The Subcortrvactor’s imsurarece spall mctuode contractual habity coverage ana adotional insured’ coverage for the benefit of the Contractor. Owner anc anyone else the OQwneris.rcecquired roname fas sel foriivin the schedule peiow), and shal speciicahy inciude coverage for compieica omerations. ine msurance requred fo be caried by fhe Supcontacior and any Suso-Sub- Contractors shall be PRIMARY AND NON-CONTRIBLITORY. With recnect to each 'yoe of insurance weqched herounder, the Cantraciors and Owner's SSurorkces shot DG excess to Subcontractors meurance. 22. Tee Subcontractor worants tmah the coverage orowded uncer the cormmenngal qenerai naoaty ooscy smal be writen on an “occurence” oasis with coverage as brood as ine insurance Service Office inc.’s form and that AO OOicCy provisions sali resinici, rechece, limit or otherwise imoar contractual hamlly coverage or the Contractor's. Owners lor olners as required and as asiea below} satus as addifional insured, FA Not less fron five (S) doys oeorio curmencemen! of tne Work and unt hina gececgiance of fhe Work, Subcontractor shall prowide Conkactor wih certificate(s) of insurance evidencing the required imurance coverage wir tho limits stated below or Gsewhere in ine Subcomiract documents. The Subcontractor smah orovide Contractor thirty (30) dave writen nofce of a change of cancellahon in coverage. in addon. ai insurance policies smal state that the insurer wit orovide Contractor thirty (20) days poor written nohce of a Change or canceliaton in coverage. 24, Unless oinervse shmsated in the Conlroct Agreement, fhe Subcontracior snail mrainiain ma jess than the iimits smecihed for cach of the following insurance COVerIges: oi Commerca General Liobify usmag an industry standard unmodited coverage form imciuding contractual liability vin minimum iimils of $1,000,000 each ccecvrence. $2,000,000 aggregate and $2,000,000 Products completed operations aagregate with either per orolect or per rocation endonement for property Garnaqge and bodily injury: 0) 0 6 v3 rs a : "Process Server, Please Sign Notary Public - State of New York bre te Joseph P.F. 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