Opinion
No. 03 Civ. 0332 (AKH).
March 1, 2005
ORDER SUPPLEMENTING OPINION AND ORDER OF FEBRUARY 23, 2005
United States Fire Insurance Company ("U.S. Fire"), an excess insurer and writing also for other excess insurers, seeks clarification of my Opinion and Order dated February 23, 2005. It appears that the excess carriers chose to stand aloof from the first wave of discovery, choosing to defer discovery until after the meaning and effect of Zurich's policy binder had been determined. U.S. Fire and other of the excess insurers are now concerned that my order of February 23, 2005 may frustrate their own discovery efforts.
Background
The owners and lessees of the Twin Towers of the World Trade Center, upon being sued for their own alleged wrongs in causing and contributing to the deaths, injuries and damage to property resulting from the terrorist-related aircrafts crashes of September 11, 2001, sued their insurance carriers for indemnification of their loss and expense. The primary, or underlying carrier, Zurich American Insurance Company ("Zurich") took the lead in opposing the insureds' claims. But that choice was made by the insurers; my case management orders did not distinguish among insurers. Thus, I ordered all insurers, and all insureds, to state their contentions regarding the meaning and effect of insurance coverage. (Initial Case Management Order, ¶ 10). And, in establishing a first wave of depositions, ten to a side, I defined the "side" as "Zurich and all insurers excess to Zurich's primary policy." (Order, April 16, 2004, § 13). I explicitly had denied applications of the excess insurers to defer their discovery to later dates. (Tr., March 2, 2004).
Discussion
U.S. Fire, in its letter of February 28, 2005, seeks clarification of already-clear directions stated in my Order dated February 23, 2005. I will not restate that which I previously stated.
U.S. Fire asks if expert witnesses whom the parties may wish to call as witnesses, or whose testimony they may wish to present in support of, or in opposition to, motions, are subject to the requirements of my February 23 order. These experts are included, but only as to issues permitting expert testimony, for example, custom and usage to explain ambiguities. Testimony or affidavits on issues not proper for experts will be precluded. The requirements of 26(a)(2) Fed.R.Civ.P. apply. Enlargements to allow time to prepare experts' reports will be considered on showing of good cause.
U.S. Fire asks that the WTC Entities, the Port Authority, and the Westfield Entities be required to make the same identifications of witnesses and productions of documents as are required of other parties, and to identify any separate claims they intend to press against the excess insurers in order to allow the excess insurers to consider if they need additional depositions. I deny the U.S. Fire request. This is not the first time that U.S. Fire was inattentive to its obligations to make requests timely, see Order, December 12, 2003, and I again deny its request. I fixed a schedule taking into consideration all timely made submissions, and assuming that the parties conducted the discovery they were authorized to conduct when they exchanged documents and when they conducted first wave depositions. The parties will be prejudiced by U.S. Fire's belated requests.
Conclusion
The requests of U.S. Fire, stated in its letter of February 28, 2005, are denied.
SO ORDERED.