Koppers Performance Chemicals, Inc. v. The Travelers Indem. Co.
| Court | United States District Courts. 4th Circuit. United States District Court of South Carolina |
| Parties | Koppers Performance Chemicals, Inc., f/k/a Osmose Wood Preserving Co. of America, Inc. f/k/a Osmose Wood Preserving, Inc. f/k/a Osmose, Inc., Plaintiff, v. The Travelers Indemnity Company; Argonaut-Midwest Insurance Company d/b/a Argo Group; Insurance Company of North America d/b/a Chubb; Indemnity Insurance Company of North America d/b/a Chubb; Pacific Employers Insurance Company d/b/a Chubb; and Ace American Insurance Company d/b/a Chubb, Defendants. |
| Docket Number | Civil Action 2:20-cv-2017-RMG |
| Decision Date | 12 December 2022 |
Koppers Performance Chemicals, Inc., f/k/a Osmose Wood Preserving Co. of America, Inc. f/k/a Osmose Wood Preserving, Inc. f/k/a Osmose, Inc., Plaintiff,
v.
The Travelers Indemnity Company; Argonaut-Midwest Insurance Company d/b/a Argo Group; Insurance Company of North America d/b/a Chubb; Indemnity Insurance Company of North America d/b/a Chubb; Pacific Employers Insurance Company d/b/a Chubb; and Ace American Insurance Company d/b/a Chubb, Defendants.
Civil Action No. 2:20-cv-2017-RMG
United States District Court, D. South Carolina, Charleston Division
December 12, 2022
ORDER AND OPINION
Richard M. Gergel United States District Judge
Before the Court is Plaintiff Koppers Performance Chemicals, Inc. f/k/a Osmose Wood Preserving Co. of America, Inc. f/k/a Osmose Wood Preserving, Inc. f/k/a Osmose, Inc.'s (“Plaintiff” or “Koppers”) amended motion for partial summary judgment against Defendant The Travelers Indemnity Company (“Travelers”) (Dkt. No. 157). Also before the Court is Travelers' renewed motion for summary judgment (Dkt. No. 155) and Travelers' renewed motion to strike (Dkt. No. 154). For the reasons stated below, and as detailed herein, the Court grants Koppers' amended motion for partial summary judgment, grants in part and denies in part Travelers' renewed motion for summary judgment, and denies Travelers' renewed motion to strike.
I. Background[1]
This is a declaratory judgment action and breach of contract action filed by Plaintiff against various insurance companies including Travelers. (Dkt. No. 1).
Travelers issued policy number TR-NSL-107T689-078 in effect from January 1, 1978 to January 1, 1979 (the “Policy”) to Osmose Wood Preserving of America, Inc., an entity to which Koppers is the successor in interest. (Dkt. No. 99 ¶¶ 1-2). The Policy is governed by South Carolina law. (Id. ¶ 4).
On November 24, 2014, Philip H. Riley initiated a lawsuit in South Carolina state court (the “Underlying Action”) against, inter alia, Koppers. (Id. ¶ 5); (Dkt. No. 155-4 at 2-17). The complaint in the Underlying Action alleged that Riley was then 35-years old, that Riley had handled wood treated with chromated copper arsenate (“CCA”), and that his exposure to CCA had caused Riley to develop cancer. (Dkt. No. 155-4 at 2-17).
On March 16, 2016, Riley was deposed in the Underlying Action. (Dkt. No. 99 ¶ 38).
On September 1, 2016, Koppers sought a defense and indemnity from Travelers regarding the Underlying Action. (Dkt. No. 99 ¶ 5).
On May 18, 2017, Travelers first requested and learned that Riley's date of birth was December 27, 1978. (Id. ¶¶ 33-34).
On July 18, 2017, Travelers denied Koppers coverage with respect to the Underlying Action (the “Denial Letter”). (Id. ¶ 35); (Dkt. No. 155-3 at 27-30) (copy of Denial Letter). “At the time that it issued the Denial, Travelers was aware of and was in possession of pages 1, 2, 3, 4, 27, 28, 34, 52, 80, 107, 118, 119 of the deposition transcript of Mr. Riley in the Underlying Action,
taken March 16, 2016, including Mr. Riley's statement at page 107 that his ‘level of exposure to CCA would have been the same as [his] father's ...from '78 to '92, you know when I was - from the time of being born until we stopped working with it in 1992 - that's the timeframe that I'm talking about.'” (Dkt. No. 99 ¶ 38); (Id. ¶ 42) (“The documents in Travelers' possession relating to the Underlying Action at the time it issued the Denial Letter were the Complaint in the Underlying Action, the aforementioned pages of deposition of Mr. Riley, and the other documents produced as part of its document production (TRAV0001-0312 and TRAV0331-0768).”).
On March 23, 2018, Koppers settled the claims against it in the Underlying Action for $150,000.00. (Id. ¶ 51).
On May 27, 2020, Koppers filed a declaratory judgment action, seeking a declaration the Policy applies to the Underlying Action. (Dkt. No. 1 at ¶ 19 et seq.). Koppers brings a breach of contract action alleging Travelers breached the duty to defend and indemnify Koppers in the Underlying Action.
On May 3, 2022, Travelers filed a renewed motion to strike. (Dkt. Nos. 154, 165). Koppers opposes. (Dkt. No. 162).
That same day, Travelers also filed a renewed motion for summary judgment. (Dkt. Nos. 155, 164). Koppers opposes. (Dkt. No. 161).
Simultaneously, Koppers filed its amended partial motion for summary judgment. (Dkt Nos. 157, 166). Travelers opposes. (Dkt. No. 160).
The parties' respective motions are fully briefed and ripe for disposition.
II. Pertinent Procedural History
On February 23, 2022, the Court granted Plaintiff's partial motion for summary judgment, granted in part and denied in part Travelers' motion for summary judgement, and denied Travelers'
motion to strike. (Dkt No. 133) (the “Prior Order”). In pertinent part, the Court found a question of material fact existed as to whether Koppers' notice of the Underlying Action was reasonable under the circumstances and relied on the declaration of Koppers' former in-house counsel Stephen Kifer in reaching this conclusion. (Id. at 8-9)
On March 24, 2022, the Court granted reconsideration of the Prior Order. (Dkt. No. 138) (the “Reconsideration Order”). The Court reopened discovery to permit Travelers to obtain discovery “on the issues raised in Kifer's declaration.” (Dkt. No. 138 at 8). As explained in the Reconsideration Order, Kifer's declaration-alongside a declaration by Robert Friedman were used by Koppers to oppose Travelers' motion for summary judgment but “consisted exclusively of evidence Koppers refused to disclose in discovery.” (Id. at 3). While the Court found most of Fed.R.Civ.P. 37's factors leaned toward excluding Kifer's declaration, the Court found Koppers' nondisclosures harmless as they were possible to cure by reopening discovery “to allow Travelers to obtain discovery on the issued raised in Kifer's declaration including deposing Kifer and/or Friedman on the issues raised in Kifer's declaration.” (Id. at 6-7).
The parties' completed said discovery. See Order and Opinion, (Dkt. No. 171) (granting Plaintiff's motion for protective order and denying Travelers' motion to compel and finding discovery completed per the Reconsideration Order).
III. Legal Standard
To prevail on a motion for summary judgment, the movant must demonstrate that there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The party seeking summary judgment has the burden of identifying the portions of the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, [which] show that there is no genuine issue as to any material fact and that the
moving part is entitled to a judgement as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 & n.4 (1986) (citing Rule 56(c)). The Court will interpret all inferences and ambiguities against the movant and in favor of the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Where the moving party has met its burden to put forth sufficient evidence to demonstrate there is no genuine dispute of material fact, the non-moving party must come forth with “specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing Rule 56(e)). An issue of material fact is genuine if the evidence is such that a reasonable jury could return a verdict in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
IV. Discussion
To begin, the Court considers Travelers' renewed motion to strike Kifer's declaration. (Dkt. No. 154). Travelers' principal argument for striking Kifer's declaration is that his deposition testimony revealed it was not based on personal knowledge. See (Dkt. No. 154 at 6-8). Specifically, Travelers notes that when asked if he had personal knowledge regarding his entire declaration, Kifer testified that he had personal knowledge once Friedman “refreshed my recollection.” (Dkt. No. 157-4 at 17:14-24) (testifying “It's mostly date issues. I don't recall dates. So I don't know if that's personal knowledge or not. But I - I relied on Rob [Friedman] to provide me with dates of when the lawsuit was filed and that sort of thing.”). Travelers also asserts that certain record evidence produced in supplemental discovery contradicts statements Kifer made in his declaration. (Dkt. No. 154 at 14) (arguing Kifer stated that after Riley was deposed in March 2016, Kifer was informed by Koppers' counsel that Riley's alleged period of exposure went back “potentially . . . to the day Mr. Riley was born” but that emails Koppers' counsel sent Kifer did not mention exposure going back to the “day Mr. Riley was born”); see also (Dkt. No. 154 at 8-
13) (arguing Freidman admitted that he did nothing to prepare for his deposition and “claimed no personal knowledge as to dates or anything else”).
The Court denies Travelers' renewed motion to strike Kifer's declaration. Travelers identifies no case law justifying striking Kifer's declaration. See (Dkt. No. 154). Put simply, while Travelers' most cogent argument is that Kifer's declaration is not based on personal knowledge, see Fed.R.Evid. 602, that assertion is not accurate as Kifer testified only that he had he “d[idn't] recall dates.” See also (Dkt. No. 154 at 14) (arguing Kifer's statement in paragraph 4 of his declaration wherein he states that he was informed by Koppers' defense counsel that Riley's alleged exposure went back “potentially . . . to the day Mr. Riley was born” was false because emails from March 2016 to Kifer from defense counsel do not contain discussion of Riley as a newborn); Kifer Deposition, (Dkt. No. 154-7 at 63, 68-69) (testifying Koppers' defense counsel likely told Kifer about Riley's alleged exposure from birth and that...
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