Servants of Paraclete v. Great American Ins. Co.

Decision Date07 November 1994
Docket NumberCiv. No. 93-236 JB/DJS.
Citation866 F. Supp. 1560
PartiesThe SERVANTS OF THE PARACLETE, INC., Plaintiff, v. GREAT AMERICAN INSURANCE CO., et al., Defendants.
CourtU.S. District Court — District of New Mexico

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Floyd D. Wilson, Wilson and Pryor, P.C., Albuquerque, NM, for plaintiff.

Jeffrey R. Anderson, Mark A. Wendorf, Thomas C. Racette, Reinhardt and Anderson, St. Paul, MN, Bruce E. Pasternack, Albuquerque, NM, for John Does.

Jeffrey J. Bouslog Oppenheimer, Wolff & Donnelly, St. Paul, MN, Robert J. Mroz, Madison, Harbour, Mroz & Puglisi, P.A., Albuquerque, NM, for St. Paul.

Stephen J. Lauer, Grey W. Handy, Michael W. Brennan, Carpenter, Comeau, Maldegen, Brennan, Nixon & Templeman, Santa Fe, NM, for Great American.

David M. Spector, Kira Druyan, Mayer, Brown & Platt, Chicago, IL, Victor Ortega, Montgomery & Andrews, P.A., Albuquerque, NM, for Catholic Mut.

Peter W. Burg, James D. Kilroy, Burg & Eldredge, P.C., Denver, CO, David M. Houliston, Albuquerque, NM, for intervenor U.S. Fire Ins.

Kenneth L. Harrigan, Timothy R. Van Valen, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, NM, for intervenor Roman Catholic Diocese of Fall River.

Karen C. Kennedy, Simons, Cuddy & Friedman, Albuquerque, NM, for intervenor Roman Catholic Archdiocese of Santa Fe.

MEMORANDUM OPINION AND ORDER

BURCIAGA, Chief Judge.

THIS MATTER is before the Court on the following motions of the parties: Defendant St. Paul Fire and Marine Insurance Company's ("St. Paul's") motion to strike the affidavit of Linda Soroos dated January 18, 1994; St. Paul's motion to strike the affidavit of Linda Soroos dated May 11, 1994; Defendants John Does' ("Does'") cross-motion for partial summary judgment against St. Paul; Plaintiff The Servants of the Paraclete, Inc.'s ("Plaintiff's," "Servants") motion for consolidation of Civ. No. 93-236 with Civ. No. 94-143 and Civ. No. 94-144; Defendant Great American Insurance Company's ("Great American's") motion for disclosure of settlement amounts; Plaintiff's and the Does' motion for amendment and clarification of judgment against Defendant Catholic Mutual Relief Society ("Catholic Mutual"); Catholic Mutual's motion for partial summary judgment establishing the extent of Catholic Mutual's liability as a result of breaching its duty to defend; Catholic Mutual's motion for partial summary judgment dismissing Plaintiff's extra-contractual claims; Catholic Mutual's motion for entry of partial final judgment pursuant to Rule 54(b); Great American's motion to alter or amend judgment; and, St. Paul's motion to reconsider, clarify and/or amend order denying its motion for summary judgment. The Court, having reviewed the pleadings, the submissions of the parties and the relevant law, and being otherwise fully advised of the premises, finds that most of the parties' motions are not well taken and are denied; however, the Court will grant in part St. Paul's motion to strike the affidavit of Linda Soroos dated May 11, 1994, Plaintiff's and the Does' motion for amendment and clarification of judgment against Catholic Mutual, Great American's motion to alter or amend judgment, and St. Paul's motion to reconsider, clarify and/or amend order denying its motion for summary judgment, as noted below.

FACTS AND PROCEDURAL HISTORY

This is a declaratory judgment action. Plaintiff alleges that Defendants, insurance companies St. Paul, Catholic Mutual, and Great American, breached their respective contracts to defend and indemnify Plaintiff in numerous lawsuits seeking damages against Plaintiff for alleged sexual abuse that former priest James R. Porter ("Porter") committed. Porter was a priest with the Diocese of Fall River in Massachusetts. In 1967, he was sent to Plaintiff's facilities in Jemez Springs, New Mexico, a retreat for pedophilic priests. During his retreat, Porter was assigned to work as a supply priest in various parishes throughout New Mexico in 1968 and was similarly assigned to a church in Bemidji, Minnesota in August, 1969. At these locations, Porter allegedly sexually abused numerous parish children.

In 1992, the Does sued Plaintiff in the state courts of New Mexico and Minnesota. Does I-XVI are the plaintiffs in the Minnesota actions and Does I-IV are the New Mexico claimants. Plaintiff made a demand to each of the Defendants insurance companies for defense and indemnification in these lawsuits, but, with the exception of Great American, which agreed to defend only against the New Mexico Does, the insurance companies rejected Plaintiff's demands. In November 1993, Plaintiff settled both the Minnesota and New Mexico actions and as part of the settlement, assigned to the Does its claims against Defendants insurance companies.

On June 14, 1994, this Court decided several motions in the present action. The Court denied St. Paul's motion for summary judgment that it had no duty to defend Plaintiff in the Minnesota actions but granted the summary judgment motion that St. Paul had no duty to defend the New Mexico actions. The Court denied Catholic Mutual's motion for summary judgment that it had no duty to defend Plaintiff in the Does' actions, but granted the summary judgment motion that Catholic Mutual had no duty to indemnify Plaintiff in those actions. Finally, the Court denied Great American's motion for summary judgment that it had no duty to defend or indemnify Plaintiff, and granted Plaintiff's and the Does' cross-motions for partial summary judgment against Great American. See generally Servants of the Paraclete, Inc. v. Great Am. Ins. Co., 857 F.Supp. 822 (D.N.M.1994). Since that time the parties have filed the several motions presently before the Court, which the Court now considers in turn.

I. ST. PAUL'S MOTION TO STRIKE SOROOS AFFIDAVIT OF JANUARY 18, 1994

The Court will deny St. Paul's motion to strike the affidavit of Linda Soroos dated January 18, 1994 ("January Soroos Affidavit"), because the affidavit is admissible under Rule 56(e) of the Federal Rules of Civil Procedure governing affidavits accompanying motions for summary judgment. Fed.R.Civ.P. 56(e). Before reaching the substantive requirements for summary judgment affidavits, the Court briefly notes and rejects Plaintiff's initial argument, that St. Paul's motion to strike is not the proper way to challenge the legal sufficiency of an affidavit. The United States Court of Appeals for the Tenth Circuit has explicitly held that legally insufficient affidavits under Rule 56(e) are subject to a motion to strike. Noblett v. General Elec. Credit Corp., 400 F.2d 442, 445 (10th Cir.1968); see also Thrasher v. B & B Chemical Co., 2 F.3d 995, 998 (10th Cir. 1993); Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir.1988).

Turning to the substantive requirements for summary judgment affidavits, Rule 56(e) specifies that affidavits supporting or opposing a motion for summary judgment "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed.R.Civ.P. 56(e). Furthermore, the United States Court of Appeals for the Tenth Circuit has held that "conclusory" summary judgment affidavits are legally insufficient. See, e.g., Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir.1991). St. Paul has failed to establish that the January Soroos affidavit is deficient in any of these respects.

St. Paul first argues that the Court should strike the January Soroos Affidavit because it is conclusory. The parties do not dispute that if the January Soroos Affidavit is conclusory, the Court may strike it. See, e.g., Travelers Ins. Co. v. D. & D. Contracting, 962 F.2d 971, 972 (10th Cir.1992); Hall, 935 F.2d at 1111. Rather, the parties dispute whether the January Soroos Affidavit is conclusory. The Court finds that it is not. The operative part of the January Soroos Affidavit states:

I have searched the records of the Servants of the Paraclete, Inc. in an attempt to locate copies of policies or other documentation regarding the Servants' liability insurance coverage during the late 1960's and early 1970's, including any policies or documentation regarding liability insurance coverage which the Servants obtained from St. Paul Fire and Marine Insurance Company. Despite that search, I have not located any policy or other documentation regarding St. Paul's providing liability insurance coverage to the Servants during this period of time.

January Soroos Affidavit ¶ 2. St. Paul alleges that the affidavit is conclusory because it "does not provide any substantive discussion whatsoever of Ms. Soroos' alleged `search' for the lost policies." St. Paul's Mem. Supp. Mot. Strike Jan. Aff. Linda Soroos, at 3 (emphasis omitted). St. Paul appears to mistake "concise" for "conclusory." Concise Ms. Soroos' affidavit certainly is, and the affidavit's brevity must go to its weight. Conclusory, however, it is not. Webster's Third New International Dictionary ("Webster's") defines "conclusion" as "the drawing of an inference." Webster's, supra, at 471. An affidavit is "conclusory," then, when it draws inferences. When Ms. Soroos states, "I have searched the records of the Servants of the Paraclete, Inc.," she is not drawing an inference. Rather, she is briefly stating a physical action that she took.

As St. Paul observes in its Reply, Ms. Soroos does state in her affidavit, "I can only conclude that any policies or documentation which the Servants once had regarding such insurance coverage must have been lost." January Soroos Aff. ¶ 2; St. Paul's Reply Supp. Mot. Strike Jan. Aff. Linda Soroos, at 4. At the risk of splitting hairs, however, Ms. Soroos' conclusion does not render her affidavit conclusory. Ms. Soroos does not attest that the policies or other documentation have been lost. Had she done so, she would have attested to a fact based on an inference. Rather,...

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