Great Lakes Reinsurance (UK) SE v. Peter Herzig
| Great Lakes Reinsurance (UK) SE |
| Peter Herzig |
| 1:2016cv09848 |
| December 21, 2016 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| XX Out of U.S. |
| Paul G. Gardephe |
| Marine |
| 28 U.S.C. ยง 1333 |
| None |
Follow case documents by RSS
Available Case Documents
The following documents for this case are available for you to view or download:
| Document Text |
|---|
Filing
164
ORDER granting 147 Motion in Limine; granting 147 Motion to Quash. For the reasons stated above, Great Lakes' motion to quash is granted. The Clerk of Court is directed to terminate the motion (Dkt. No. 147). Great Lakes will respond to Herzig's argument that Great Lakes refusal to produce a witness in its control entitles Herzig to an adverse inference at trial (Herzig Opp. to Great Lakes Mot. (Dkt. No. 156) at 6-7) by July 7, 2023 at 5:00 p.m. In its response, Great Lakes will cite in-Circuit case law. SO ORDERED.. (Signed by Judge Paul G. Gardephe on 7/7/2023) (jca)
|
|
Filing
160
ORDER: Accordingly, Great Lakes will forthwith (1) identify the officer most knowledgeable concerning Herzig's counterclaims; and (2) submit a declaration stating where that officer resides, where the officer is employed, and whether the officer regularly transacts business in person within 100 miles of 40 Foley Square, New York, New York, and/or anywhere in the State of New York. (Signed by Judge Paul G. Gardephe on 7/5/2023) (rro)
|
|
Filing
154
MEMORANDUM OPINION & ORDER re: 137 MOTION to Alter Judgment re: 123 Memorandum & Opinion,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, 134 Order, Set Deadlines/Hearings,,,,,,,,,,,, . filed by Great Lakes Reinsurance (UK) SE, 131 M OTION for Reconsideration re; 123 Memorandum & Opinion,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, . filed by Peter Herzig. For the reasons stated above, Herzig's motion for reconsideration is denied, Herzig's Fourth Counterclaim is dismissed with prejudice, and Great Lakes' cross-motion for reconsideration is denied. The Clerk of Court is directed to terminate the motions (Dkt. Nos. 131, 137). SO ORDERED. (Signed by Judge Paul G. Gardephe on 6/29/2023) (ks)
|
|
Filing
134
ORDER Accordingly, it is hereby ORDERED that the SAC's First, Third, and Fourth Causes of Action are dismissed on consent. In a June 9, 2023 letter, Great Lakes with Herzig's consent requests an extension of the deadline for its oppo sition to Herzig's motion for reconsideration, from June 15, 2023 to June 29, 2023, with any reply from Herzig to be submitted by July 14, 2023. (Dkt. No. 133) It is hereby ORDERED that Great Lakes' opposition to Herzig's motion for reconsideration is due by June 22, 2023. Any reply by Herzig is due by June 29, 2023. A bench trial on Herzig's First, Second, and Third Counterclaims will commence on July 10, 2023, at 9:30 a.m., in Courtroom 705 of the Thurgood Marshall U. S. Courthouse, 40 Foley Square, New York, New York. The parties joint pretrial order and any motions in limine are due by June 26, 2023, and responses are due by July 3, 2023. The parties should consult this Court's Individual Rules regarding the applicable procedures and necessary filings for a bench trial. See Individual Rules for Civil Cases, Rule X(C). For purposes of drafting the joint pretrial order and motions in limine, the parties should assume that Herzig's motion for r econsideration will be denied and that his Fourth Counterclaim will be dismissed. SO ORDERED. (Motions due by 6/26/2023., Pretrial Order due by 6/26/2023., Responses due by 7/3/2023, Replies due by 6/29/2023., Bench Trial set for 7/10/2023 at 09:30 AM in Courtroom 705, 40 Centre Street, New York, NY 10007 before Judge Paul G. Gardephe.) (Signed by Judge Paul G. Gardephe on 6/9/2023) (jca)
|
|
Filing
123
MEMORANDUM OPINION & ORDER re: 91 MOTION for Summary Judgment . filed by Great Lakes Reinsurance (UK) SE. For the reasons stated above, Great Lakes' motion for summary judgment (Dkt. No. 91) is (1) granted as to the SAC's Second Cause of Action; (2) denied as moot with respect to the SAC's Third Cause of Action; and (3) denied as to the SAC's Fourth Cause of Action. Great Lakes' motion to strike (Dkt. No. 118) is granted. The Clerk of Court is directed to terminate the motions (Dkt. Nos. 91, 118). Great Lakes did not seek summary judgment on the SAC's First Cause of Action, which seeks a declaratory judgment that Great Lakes' obligation to pay the reasonable cost of repairs does not exc eed $175,000. (See SAC (Dkt. No. 48) paragraph 23-28, p. 13 paragraph E-F) The First Cause of Action appears to be moot, for the reasons explained above. By May 26, 2023, Great Lakes will show cause why the SAC's First, Third and Fourth Causes of Action should not be dismissed, given this Court's ruling as to the SAC's Second Cause of Action. Great Lakes likewise did not move for summary judgment on Herzig's counterclaims. In his First and Second Counterclaims, Herz ig asserts claims for fraudulent inducement and rescission based on alleged material misrepresentations by Great Lakes. (Answer to SAC (Dkt. No. 49) at 15-19) There are two categories of alleged misrepresentations. The first category of alleged misr epresentations relates to statements made by Goldman on December 29, 2016, regarding the November 2016 Endorsement and the credit of premium return. (See id. at 14-19) In granting Great Lakes summary judgment on its Second Cause of Action, this Court held that Goldman's alleged misrepresentations were not material representations upon which Herzig reasonably relied. The second category of alleged misrepresentation relates to Great Lakes' representation that "$175,000.00 was the maximum required to effect the covered repairs to the vessel." (Id. at 13, 16, 18) Based on the evidence in the record, it appears that Herzig in signing the Release did not rely on representations from Great Lakes or its agent about the adequacy of the survey or the cost of repairs. The relevant evidence is as follows: Herzig's surveyor, Shorter, attended the November 3, 2016 inspection of the Crescendo, and in an email to Herzig the next day, Shorter stated that, "in ord er to ascertain the full extent of the structural hull damage and the cost of repairs, [Shorter] had pointed out to all in attendance [at the inspection] that the correct way to survey this yacht [was] out of the water, using instruments and other proven skill methods." (Pltf. R. 56.1 Stmt. (Dkt. No. 109) paragraph 44 (emphasis omitted)) Herzig then obtained two repair estimates from boat yards. One estimate came in at $465,536, or an "all-in price" of $490,000. T he other estimate was for an "all-in price" of "approximately $155,000," not including "approximately $10,000... already incurred." (Pltf. R. 56.1 Stmt. (Dkt. No. 109) paragraph 52; Def. R. 56.1 Stmt., Ex. F (Dkt. No. 108-7) at 2) On December 19, 2016, Herzig emailed Wager the claim investigator Concept had retained and discussed these two estimates, characterizing the $465,536/$490,000 quote as "high" and the $155,000 quote a s "a minimum projected cost." Herzig also stated that an estimate Wager had provided was "useless" and "serve[d] the purpose of the carrier only." Herzig proposed that Concept make a lump-sum payment of $300,000, a figure arrived at by calculating the midpoint of the two quotes Herzig had obtained and discounting it to account for the deductible under the Policy. (Def. R. 56.1 Stmt., Ex. F (Dkt. No. 108-7) at 2-3) On December 27, 2016 having been informed of the instant lawsuit Heffner wrote to Concept, reiterating Defendant's $300,000 lump sum settlement proposal and stating: dispute that you are evaluating the damages sustained by the subject vessel based upon a surveyor who did, at best, a cursory inspection while the vessel remained in the water. We are at a complete loss as to how your surveyor can issue opinions that will dictate substantial repairs to a substantial vessel, without the vessel being placed in dry dock and subject to a thorough survey as dictated by standard and accepted practices and procedures followed by licensed and experienced surveyors in the subject community. We stand by the estimates and opinions we have obtained from professionals with decades of exper ience evaluating issues comparable to those presented herein. (Def. R. 56.1 Stmt. (Dkt. No. 108) paragraph 105; Dec. 27, 2016, Heffner Ltr. (Dkt. No. 115) at 3) In sum, the evidence in the record indicates that before Herzig agreed to enter into t he Release on December 29, 2016 he had (1) been informed of the purported inadequacies in the November 3, 2016 inspection of the Crescendo; (2) formed the view that those purported inadequacies made the resulting survey unreliable; (3) rejected Con cept's quote as "useless"; (4) obtained his own estimates of the cost of repairing the Crescendo; and (5) considered those estimates in arriving at what he believed to be a reasonable settlement. Given this evidence, it appears clea r that Herzig did not rely on representations by Great Lakes or its agent about the inspection, the survey, or the estimated cost of repairs. Herzig's Third Counterclaim is for breach of contract regarding the November 2016 Endorsement. Herzig alleges that "[u]nder the terms of the Policy, Great Lakes is not permitted to modify the value of the [P]olicy or any other provisions without the consent of Herzig," and therefore, "[b]y unilaterally reducing the value of the Policy [by issuing the November 2016 Endorsement], Great Lakes breached the terms of [the] [P]olicy." (Answer to SAC (Dkt. No. 49) at 19-20) Given that (1) no Policy provision authorizes unilateral modifications by Great Lakes; and (2) New York case la w indicates that modifications to insurance policies require the insured's consent, see Danzig, 78 A.D.2d at 305-06, 309 (holding that "the modification [to a group health insurance policy] changing the lifetime maximum for expenses for private duty nursing care from 'unlimited' to $5000 [was] ineffective" because the insurer had not "obtain[ed] the consent of [the insureds] to such modification"), the November 2016 Endorsement may not have been valid . But Herzig has not identified any provision of the Policy that Great Lakes breached by issuing the Endorsement. Moreover, this Court has ruled that Herzig did not reasonably rely on the issuance of the November 2016 Endorsement in agreeing to th e Release, and it is unclear what other damages he could have suffered in connection with the Endorsement. In his Fourth Counterclaim, Herzig alleges breach of contract in connection with Great Lakes not paying the reasonable cost of repairs. Herzig contends that "the sum of $175,000.00 was grossly inadequate to address the damages sustained to return the Vessel to its pre-incident condition." (Answer to SAC (Dkt. No. 49) at 20-21) But this Court has ruled that the Release Herz ig executed is a valid and binding contract. Having released Great Lakes from any further claim regarding the October 2016 damage to the Crescendo in exchange for a payment of $175,000 (see Pltf. R. 56.1 Stmt. (Dkt. No. 109) 157; Ex. L (Dkt. No . 109-12) at 2 ("[Herzig] releases, acquits, and forever discharges [Great Lakes] and Concept Special Risks Ltd.... of and from any and all [claims] which [Herzig or his] heirs, executors, administrators and assigns ever had, now have, or herea fter can, shall, or may have for... any and all known and unknown damage and/or property damage resulting... from the incident and the resulting claim for insurance coverage involving... Crescendo insured under [the Policy] which is alleged to have occurred on or about October 7, 2016.")), Herzig will not be heard to complain that the $175,000 was inadequate to perform the necessary repairs. By May 26, 2023, Herzig will submit a letter (1) stating whether he intends to proceed to trial on his First, Second, and Third Counterclaims; and (2) showing cause why his Fourth Counterclaim should not be dismissed. (Signed by Judge Paul G. Gardephe on 5/18/2023) (rro)
|
|
Filing
72
ORDER denying 62 MOTION to Amend/Correct Leave to Amend Counterclaims and for Jury Trial. For the reasons stated above, Herzig's motion to amend and motion for a jury trial are denied in their entirety. The Clerk of Court is directed to term inate the motion (Dkt. No. 62). There will be a telephone conference in this matter on October 21, 2019 at 12:30 p.m. The parties will initiate the call. Once both sides are on the line, they should contact Chambers at 212-805-0224. SO ORDERED. (Signed by Judge Paul G. Gardephe on 9/23/2019) (jca)
|
Use the links below to access additional information about this case on the US Court's PACER system. A subscription to PACER is required.
Access this case on the New York Southern District Court's Electronic Court Filings (ECF) System
- Search for Party Aliases
- Associated Cases
- Attorneys
- Case File Location
- Case Summary
- Docket Report
- History/Documents
- Parties
- Related Transactions
- Check Status
| Search for this case: Great Lakes Reinsurance (UK) SE v. Peter Herzig | |
|---|---|
| Search News | [ Google News | Marketwatch | Wall Street Journal | Financial Times | New York Times ] |
| Search Web | [ Unicourt | Legal Web | Google | Bing | Yahoo | Ask ] |
| Plaintiff: Great Lakes Reinsurance (UK) SE | |
| Represented By: | Steven Eric Goldman |
| Search News | [ Google News | Marketwatch | Wall Street Journal | Financial Times | New York Times ] |
| Search Finance | [ Google Finance | Yahoo Finance | Hoovers | SEC Edgar Filings ] |
| Search Web | [ Unicourt | Justia Dockets | Legal Web | Google | Bing | Yahoo | Ask ] |
| Defendant: Peter Herzig | |
| Search News | [ Google News | Marketwatch | Wall Street Journal | Financial Times | New York Times ] |
| Search Finance | [ Google Finance | Yahoo Finance | Hoovers | SEC Edgar Filings ] |
| Search Web | [ Unicourt | Justia Dockets | Legal Web | Google | Bing | Yahoo | Ask ] |
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
