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Allstate Insurance Co. v. Century Indemnity Co.

October 29, 2009

ALLSTATE INSURANCE COMPANY, AS SUCCESSOR-IN-INTEREST TO NORTHBROOK EXCESS AND SURPLUS INSURANCE COMPANY, FORMERLY NORTHBROOK INSURANCE COMPANY, PLAINTIFF,
v.
CENTURY INDEMNITY COMPANY, AS SUCCESSOR TO CCI INSURANCE COMPANY, AS SUCCESSOR TO CIGNA SPECIALTY INSURANCE COMPANY, FORMERLY KNOWN AS CALIFORNIA UNION INSURANCE COMPANY; AND GREATER NEW YORK MUTUAL INSURANCE COMPANY, DEFENDANTS.



The opinion of the court was delivered by: Rufe, J.

MEMORANDUM OPINION AND ORDER

On April 15, 2009, Plaintiff Allstate Insurance Company ("Allstate") filed a Motion for Summary Judgment against Defendants Century Indemnity Company ("Century") and Greater New York Mutual Insurance Company ("GNY").*fn1 On May 22, 2009, Century filed a Brief Opposing Allstate's Summary Judgment and Supporting Century's Cross-Motions.*fn2 In its opposition brief, Century moves for a continuance and additional discovery pursuant to Federal Rule of Civil Procedure 56(f). Century contends that it did not have an opportunity to take discovery on the issue of whether Century's policy contains an aggregate limit. Century alleges that it failed to obtain this discovery because Allstate raised the issue at a deposition a mere three (3) days before the end of the discovery period. In considering Century's Rule 56(f) motion, the Court has considered Allstate's Motion for Summary Judgment, Century's Motion in Opposition, and Allstate's Reply Brief to Century's Motion for Partial Summary Judgment and Cross-Motions.*fn3 For the following reasons, Century's motion for a continuance and additional discovery is GRANTED.

I. FACTUAL AND PROCEDURAL SUMMARY

A. Background

The claims between Allstate, Century, and GNY arise out of a settlement reached between Allstate and its insured, Arkema, Inc.*fn4 Allstate originally issued quota share excess insurance to Arkema's predecessor, J.F. Jelenko, from January 1, 1977 to January 1, 1983.*fn5 Century issued excess insurance to J.F. Jelenko from January 1, 1979 to January 1, 1980, and retained a 40% quota share of the same layer during the 1979-1980 policy period (Allstate retained 60% during that period).*fn6 GNY issued the underlying primary insurance to J.F. Jelenko from August 14, 1969 to August 14, 1975.

The insured manufactured asbestos-containing dental products, and the underlying claimants allege exposure to the asbestos contained in these dental products during the parties' respective policy periods (1969-1983).*fn7 The underlying claims consist of both products liability claims and premises liability claims.*fn8 On April 1, 2004, Arkema filed a complaint against Allstate, Employers of Wausau, and Employers' Insurance Company in the Eastern District of Pennsylvania seeking a declaratory judgment as to the rights and obligation of each insurer regarding Arkema's asbestos liabilities.*fn9 From June 15, 2004 through September 15, 2006, the court issued multiple orders staying the litigation to permit the parties to negotiate a settlement.*fn10 As a result of the settlement discussions, Allstate and Arkema negotiated a settlement of Arkema's asbestos liabilities pursuant to a coverage-in-place agreement ("CIP").*fn11 As of April 15, 2009, Allstate has paid $1,575,000 in indemnity and $183,294 in defense pursuant to the CIP.*fn12

On October 2, 2006, Allstate filed a Complaint against Century and GNY seeking declaratory relief and contribution from each defendant.*fn13 On December 21, 2006, GNY filed its Answer and a Cross-Claim against Century. On June 20, 2007, Century filed its Answer and a Cross-Claim against GNY. Pursuant to the Amended Scheduling Order dated May 21, 2008, the Court directed the parties to complete fact discovery by October 15, 2008; according to both parties' pleadings, the discovery deadline was extended thereafter until February 15, 2009.

B. Allstate's Motion for Summary Judgment

On April 15, 2009, Allstate filed a Motion for Summary Judgment against Century and GNY. In its supporting brief, Allstate maintains, in part,*fn14 that Century's 1979-1980 policy does not contain an explicit aggregate limit.*fn15 Allstate argues that "'[w]here... the language of the contract is clear and unambiguous, a court is required to give effect to that language.'"*fn16 Therefore, Allstate requests the Court to "declare that the [Century] Policy has no aggregate limit."*fn17

In response, Century filed a Brief in Opposition to Allstate's Motion for Summary Judgment and supporting affidavit.*fn18 In its brief, Century contends that Allstate first raised the aggregate limit issue during the deposition of Century's witness, Alexandra Tanyoun (Allstate deposed Ms. Tanyoun on February 12, 2009).*fn19 Century maintains that all paper discovery and the depositions of all of Allstate witnesses "had been completed before Allstate advanced the contention that the [Century] policy had no aggregate limit."*fn20 Further, Century asserts that it attempted to obtain additional discovery after Allstate filed its summary judgment motion, but Allstate refused to respond to Century's requests.*fn21 As a result of Century's alleged inability to take discovery on this issue, Century requests an order for a continuance on the aggregate limit issue and additional discovery from Allstate pursuant to Federal Rule of Civil Procedure 56(f).*fn22

Allstate counters that Century fails to establish how the request for additional discovery would be productive.*fn23 First, Allstate contends that Century was aware, or should have been aware, that its policy did not contain an aggregate limit.*fn24 Second, Allstate has produced its entire underwriting file as well as its corporate representatives for deposition, arguing that Century already has the information it needs on this issue.*fn25 Finally, Allstate posits that, even assuming Century first learned of the aggregate limit issue on February 12, 2009 (at the deposition of Ms. Tayoun), Century had an opportunity to seek an extension for additional discovery prior to the February 15, 2009 discovery deadline.*fn26

II. STANDARD FOR SUMMARY JUDGMENT

Rule 56(f) provides that: When Affidavits are Unavailable. If a party opposing the motion shows by affidavit that, for specified reasons, it cannot present facts ...


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