Cosmopolitan Shipping CO., Inc. v. Continental Insurance Company
| Cosmopolitan Shipping Co., Inc. |
| Continental Insurance Company |
| 1:2018cv03167 |
| April 11, 2018 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| XX Out of State |
| Lorna G. Schofield |
| Insurance |
| 28 U.S.C. ยง 1332 |
| Plaintiff |
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Filing
236
CLERK'S JUDGMENT re: 235 Memorandum & Opinion in favor of Marsh USA, Inc. against Cosmopolitan Shipping Co., Inc. It is hereby ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court's Opinion & Order dated July 27, 2021, Defendant's motion for summary judgment is granted; accordingly, the case is closed. (Signed by Clerk of Court Ruby Krajick on 7/28/2021) (Attachments: # 1 Right to Appeal) (km)
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Filing
235
OPINION & ORDER re: 228 MOTION for Summary Judgment . filed by Marsh USA, Inc. For the reasons stated above, the Defendant's motion for summary judgment is granted. The Clerk of Court is respectfully directed to close the motion at Dkt. No. 228 and to close the case. (As further set forth in this Order.) (Signed by Judge Lorna G. Schofield on 7/27/2021) (cf) Transmission to Orders and Judgments Clerk for processing.
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Filing
224
ORDER: WHEREAS, on January 22, 2021, the Court issued its findings of fact and conclusions of law ("FFCL") following an evidentiary hearing held on August 25 and September 2, 2020. It is hereby ORDERED that, for the reasons stated in the FFCL, all claims of Plaintiff against Defendant Continental Insurance Company are dismissed with prejudice. The Clerk of Court is respectfully directed to terminate Defendant Continental Insurance Company from this case. Continental Insurance Company (a Pennsylvania Corporation) terminated. (Signed by Judge Lorna G. Schofield on 3/5/2021) (cf)
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Filing
219
ORDER denying 214 Motion for Reargument. WHEREAS Plaintiff does not identify any change of controlling law, any new evidence, the need to correct a clear error, or prevent injustice; it is hereby ORDERED that Plaintiff's Motion for Reargument and Reconsideration is DENIED. The Clerk of Court is respectfully directed to close the open motion at Dkt. 214. (As further set forth in this Order.) (Signed by Judge Lorna G. Schofield on 2/17/2021) (cf)
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Filing
211
FINDINGS OF FACT AND CONCLUSIONS OF LAW: In summary, the Court makes the following findings based on the evidence in the record: (1) CIC was the only insurer to issue P&I coverage to the UNRRA for the period between May 1946 and August 1947. (2) P olicy C-4893 covered ships that Cosmopolitan chartered on behalf of the UNRRA; those identified are the S.S. CARROLL VICTORY, the S.S. JOAQUIN MILLER, the S.S. MICHAEL MORAN, the S.S. WILLIAM LYON PHELPS, and the S.S. THOS. W. MURRAY. (3) Cosmopoli tan has failed to establish all material terms of Policy C-4893. For the reasons stated above, the Court DECLARES that Cosmopolitan has not established the terms of Policy C-4893 by preponderance of the evidence, and CIC cannot be found to afford coverage to Cosmopolitan for the underlying asbestos claim. (As further set forth in this Order.) (Signed by Judge Lorna G. Schofield on 1/22/2021) (cf)
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Filing
206
ORDER: WHEREAS, Cosmopolitan Shipping Company, Inc., (Cosmopolitan) seeks to establish insurance coverage by relying on secondary evidence to show the existence and terms of a policy, which -- except for three endorsements -- cannot be found. Under New York law, an insured may rely on secondary evidence (i.e., evidence other than the policy itself) to prove the existence and terms of an insurance policy only after the insured demonstrates that it has made a diligent but unsuccessful search an d inquiry for the missing [policy]. Burt Rigid Box, Inc. v. Travelers Prop. Cas. Corp., 302 F.3d 83, 91 (2d Cir. 2002); accord Danaher Corp. v. Travelers Indem. Co., 414 F.Supp.3d 436, 461 (S.D.N.Y. 2019). The diligence requirement stems from the be st evidence rule codified in Rule 1004 of the Federal Rules of Evidence and is a preliminary question concerning the admissibility of evidence that is to be determined by the Court. Burt Rigid Box, Inc., 302 F.3d at 91-92. WHEREAS, to show diligence , Cosmopolitan submitted an affidavit of Granville T. Conway, son of the former president of Cosmopolitan and a former shareholder and employee of the company. The affidavit states that Cosmopolitan commenced an investigation in 1995 for relevant in surance policies to respond to claims asserted by former seamen but found none at that time. Cosmopolitan conducted a second search nearly a decade later and found no relevant insurance policies. Late, in around 2016, Cosmopolitan directed its couns el to serve subpoenas on insurance companies it believed might have records of lost policies issued to Cosmopolitan, including the Fulton Syndicate, Continental Insurance Company, the American Club, and the Fireman's Fund. These subpoenas turned up no relevant insurance policy. Cosmopolitan also searched various archives, presumably for policies issued to Cosmopolitan, again with no success. WHEREAS, the Continental Insurance Company (CIC) argues that Cosmopolitan's policy search was i nsufficiently diligent because Cosmopolitan did not request the four subpoenaed entities to search for policies issued to the UNRRA; Cosmopolitan did not issue subpoenas to possible foreign insurers; and Cosmopolitan's expert did not conduct an independent search for any policy. WHEREAS, while Cosmopolitan has shown that it conducted a diligent search for policies issued to Cosmopolitan, it has not yet shown that it conducted a diligent search for Policy C-4893 issued to UNRRA, apart from the three endorsements before the Court. While the three endorsements are sufficient to supply many critical terms of the policy, they also omit critical terms, which must be proved, if at all, by secondary evidence. It is hereby ORDERED that, consis tent with the best evidence rule, Cosmopolitan shall by January 5, 2021, file a letter with the Court proposing how it intends to make a showing that it has conducted, or will conduct, a diligent search for the pertinent remainder of Policy C-4893, and shall state why it should be permitted to do so. CIC shall file a responsive letter by January 12, 2021. The Clerk of Court is respectfully directed to strike the Order at Dkt. No. 205. (Signed by Judge Lorna G. Schofield on 1/4/2021) (nb)
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Filing
205
ORDER: It is hereby ORDERED that, consistent with the best evidence rule, Continental shall by January 5, 2021, file a letter with the Court proposing how it intends to make a showing that it has conducted, or will conduct, a diligent search for the pertinent remainder of Policy C-4893, and shall state why it should be permitted to do so. CIC shall file a responsive letter by January 12, 2021. (Signed by Judge Lorna G. Schofield on 12/22/2020) (rro)
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Filing
200
ORDER: It is hereby ORDERED that, by September 11, 2020, Plaintiff shall file on ECF (1) an Excel chart comparing policy terms for the various insurance policies and endorsements contained in Plaintiff's exhibits; (2) a clearer copy of Plai ntiff's Exhibit 6; (3) an affidavit by Mr. Alan Jervis laying the foundation for his use of, and reliance on, Plaintiffs Exhibits 30-32, 81, and 133; (4) and any affidavits that provide additional authenticating information for Plaintiff' ;s exhibits. Plaintiff shall email the Court and Defendant a courtesy copy of the Excel chart in native format. ORDERED that, by September 17, 2020, Defendant shall file on ECF any response to Plaintiff's submissions detailed above. In the event that Defendant has additions or modifications to the Excel chart, Defendant shall submit a revised version of the chart showing the changes. (Signed by Judge Lorna G. Schofield on 9/2/2020) (rro)
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Filing
199
ORDER, It is hereby ORDERED that closing statements for the evidentiary hearing are adjourned from September 2, 2020, at 9:30 A.M. to September 2, 2020, at 2 P.M. (Evidentiary Hearing set for 9/2/2020 at 02:00 PM before Judge Lorna G. Schofield.) (Signed by Judge Lorna G. Schofield on 8/31/2020) (kv)
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Filing
198
ORDER: It is hereby ORDERED that closing statements for the evidentiary hearing shall be scheduled for September 2, 2020, at 9:30AM. It is further ORDERED that, by August 31, 2020, the parties shall provide the video conference information for the closing statements to the Court as well as a dial in number for the public. (Signed by Judge Lorna G. Schofield on 8/25/2020) ( Evidentiary Hearing set for 9/2/2020 at 09:30 AM before Judge Lorna G. Schofield.) (ks)
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Filing
188
ORDER: It is further ORDERED that by June 4, 2020, the parties shall disclose all demonstrative aids that may be used at the upcoming evidentiary hearing. Any disputes should be raised promptly with the Court. It is further ORDERED that the evid entiary hearing scheduled to begin on June 8, 2020, at 10:00 A.M. is adjourned to August 25, 2020, at 10:00 A.M. The parties shall make diligent efforts to ensure that, if necessary, the hearing can take place by video conference without any int erruptions. It is further ORDERED that the parties may file a letter by July 17, 2020, requesting another pre-hearing conference. The letter shall state a proposed date for the conference and all issues the parties wish to discuss., Evidentiary Hearing set for 8/25/2020 at 10:00 AM before Judge Lorna G. Schofield. (Signed by Judge Lorna G. Schofield on 5/14/2020) (rj)
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Filing
186
ORDER: WHEREAS, the telephonic pre-hearing conference is set for May 14, 2020, at 10:30 A.M. ECF 181. It is hereby ORDERED that the telephonic pre-hearing conference is adjourned to May 14, 2020, at 11:50 A.M. (Telephone Conference set for 5/14/2020 at 11:50 AM before Judge Lorna G. Schofield.) (Signed by Judge Lorna G. Schofield on 5/12/2020) (jca)
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Filing
183
ORDER: It is hereby ORDERED that the parties May 5, 2020, letter shall also address whether they are able to proceed with the hearing and conference by Skype per the attached instructions and whether they are able to secure witnesses for the hearing. (As further set forth in this Order.) (Signed by Judge Lorna G. Schofield on 5/1/2020) (cf)
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Filing
182
ORDER: WHEREAS, an evidentiary hearing is set to begin on June 8, 2020, at 10:00 A.M. ECF 181. The pre-hearing conference is set for May 14, 2020, at 10:30 A.M. It is hereby ORDERED that the parties shall, by May 5, 2020, file a letter with the Court stating whether the June 8 evidentiary hearing and the May 14 conference can proceed by video conference. (Signed by Judge Lorna G. Schofield on 4/28/2020) (cf)
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Filing
181
ORDER: It is hereby ORDERED that the evidentiary hearing set for May 11, 2020, at 10:00 A.M. is adjourned to June 8, 2020, at 10:00 A.M. The pre-hearing conference set for April 16, 2020, at 10:40 A.M. is adjourned to May 14, 2020, at 10:30 A.M. (Evidentiary Hearing set for 6/8/2020 at 10:00 AM before Judge Lorna G. Schofield. Telephone Conference set for 5/14/2020 at 10:30 AM before Judge Lorna G. Schofield.) (Signed by Judge Lorna G. Schofield on 3/27/2020) (jwh)
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Filing
178
ORDER: It is hereby ORDERED that the hearing will last no longer than 5 hours. The parties shall file their stipulation for the allocation of the remaining time by March 17, 2020. It is further ORDERED that the parties shall file a joint letter b y March 17, 2020, identifying any additional issues that need to be addressed at the pre-hearing conference. If there are no issues, or if they can be addressed on the papers, the conference will be canceled. If the conference goes forward, it wil l be telephonic. In case the conference goes forward, the joint letter shall provide the Court with one telephone call-in number for a conference call, and if necessary a passcode. The Court's bench trial procedures are attached to this Order. (As further set forth in this Order.) (Signed by Judge Lorna G. Schofield on 3/12/2020) (cf)
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Filing
153
ORDER granting 152 Letter Motion for Extension of Time to File. APPLICATION GRANTED. The parties shall file a proposed stipulation of facts and Plaintiff shall file an amended exhibit list no later than January 31, 2020. (Signed by Judge Lorna G. Schofield on 1/22/2020) (tro)
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Filing
151
ORDER: It is hereby ORDERED that, by January 24, 2020, Plaintiff Cosmopolitan Shipping Co., Inc. shall file a revised Exhibit List as discussed at the pre-hearing conference. It is further ORDERED that, by January 24, 2020, the parties shall file (1) a stipulation of facts in narrative form including all relevant facts that are undisputed. The parties shall identify within the narrative those facts that are disputed, and each partys position. The parties shall email to Chambers a courtesy copy of the stipulation in Word format; (2) a stipulation as to Defendants search of its own records; and (3) a stipulation as to Plaintiffs Exhibit 82. It is further ORDERED that, by February 14, 2020, Plaintiff shall file witness statements to serve as direct testimony for Alan Jarvis, Lane Andrae and Russell P. Manheimer. Defendant Continental Insurance Company shall, by February 14, 2020, file a witness statement to serve as direct testimony for Thomas Prendergast. Any application to call additional witnesses must be made with supporting arguments no later than February 4, 2020. It is further ORDERED that, by no later than February 28, 2020, the parties shall file simultaneous memoranda of law addressing whether Continental iss ued a policy or policies to Cosmopolitan regarding the seamen at issue and, if so, the terms thereof, and including citations to the witness statements and exhibits. The Court's Individual Rules III.B. regarding memoranda of law, including co urtesy copies and page limits, shall apply except as otherwise provided herein. It is further ORDERED that, the February 20, 2020, final pre-hearing conference is adjourned and will be held on March 19, 2020, at 11:30 A.M. It is further ORDERED tha t the March 5, 2020, hearing is adjourned and will be held instead on April 13, 2020, at 10:00 A.M. The Clerk of Court is respectfully directed to add the March and April dates to the calendar. (Evidentiary Hearing set for 4/13/2020 at 10:00 AM before Judge Lorna G. Schofield., Final Pretrial Conference set for 3/19/2020 at 11:30 AM before Judge Lorna G. Schofield.) (Signed by Judge Lorna G. Schofield on 12/19/2019) (jca)
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Filing
150
ORDER: WHEREAS, on December 19, 2019, the parties shall attend a pre-hearing conference at which the Court will rule on exhibits, address the witness lists, and determine whether there is a "basis to proceed." Dkt No. 125. It is hereby ORDERED that December 19, 2019, conference shall take place at 11:30 A.M. ( Status Conference set for 12/19/2019 at 11:30 AM before Judge Lorna G. Schofield.) (Signed by Judge Lorna G. Schofield on 12/16/2019) (mro)
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Filing
146
ORDER: It is hereby ORDERED that the parties shall, by December 11, 2019, file an Amended Joint List of Proposed Exhibits (see Dkt No. 132). The Amended Joint List shall include a new column which states whether Plaintiff's expert, Defendant 's expert or both experts rely on the exhibit. The parties shall also revise the expert reports to include the Exhibit Number in citation to documents. (As further set forth in this Order.) (Signed by Judge Lorna G. Schofield on 12/9/2019) (cf)
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Filing
142
ORDER: It is hereby ORDERED that the parties shall, by December 6, 2019, send a copy of Plaintiff's exhibits on a bookmarked CD to the Court's Chambers. (Signed by Judge Lorna G. Schofield on 12/5/2019) (jca)
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| Plaintiff: Cosmopolitan Shipping Co., Inc. | |
| Represented By: | Gregory Coffey |
| Represented By: | Richard Joseph Dewland |
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| Defendant: Continental Insurance Company | |
| Represented By: | Kevin T. Coughlin |
| Represented By: | Karen H. Moriarty |
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