Opinion
CIVIL ACTION NO. 02-3263, SECTION "M" (2)
January 26, 2004
ORDER AND REASONS
Plaintiff, The Times-Picayune Publishing Corporation ("The Times-Picayune"), filed this action against defendant, Zurich American Insurance Company ("Zurich"), in Louisiana state court. Plaintiff alleges state law claims of breach of contract, bad faith breach of contract, violations of Louisiana insurance statutes and breach of the implied covenant of good faith and fair dealing, and seeks damages and declaratory relief. Zurich removed the action to this court on the basis of diversity jurisdiction. Notice of Removal and Petition, Record Doc. No. 1. This matter was referred to the undersigned Magistrate Judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636(c) upon written consent of all parties. Record Doc. No. 37.
Co-plaintiff Advance Publications, Inc. dismissed its claims without prejudice by joint stipulation of the parties. Record Doc. No. 26.
Two motions are pending. Oral argument was conducted on both motions on January 9, 2004. Participating were Edward Stein and James Swanson, representing plaintiff, and Kevin Mattessich, James Burke and Paul Vance, representing defendant.
Zurich filed a motion for partial summary judgment on the question whether it is obligated under the excess insurance policy it issued to plaintiff to pay plaintiff's claims for losses that were sustained before, but discovered after, the inception date of Zurich's policy. Record Doc. No. 33. The Times-Picayune filed a timely opposition memorandum. Record Doc. No. 47. Defendant received leave to file a reply memorandum. Record Doc. Nos. 46, 51.
Plaintiff filed a motion to compel claim related-documents. Record Doc. No. 35. Defendant filed a timely opposition memorandum. Record Doc. No. 40. The court deferred consideration of the motion to compel for consideration with defendant's motion for partial summary judgment. Record Doc. No. 45. During the hearing on January 9, 2004, the court ordered Zurich to produce to the court and to plaintiff no later than January 16, 2004 a privilege log describing the documents withheld on the ground of attorney-client privilege, and to produce to the court for in camera review the documents that defendant claims are privileged.
Having considered the complaint, the record, the submissions of the parties and the applicable law, and having review the documents submitted for in camera review, and for the following reasons, IT IS ORDERED that defendant's motion for partial summary judgment is GRANTED. IT IS FURTHER ORDERED that plaintiff's motion to compel claim related-documents is GRANTED IN PART AND DENIED IN PART.
I. FACTUAL BACKGROUND
The following facts are considered undisputed solely for purposes of defendant's motion for partial summary judgment.
Federal Insurance Company issued a crime insurance policy to The Times-Picayune for successive one-year policy periods beginning July 1, 1990 through July 1, 2001. This policy had a $1,000,000 limit and had substantively identical language during the relevant years. Defendant's Exh. C.
Federal also issued excess crime insurance policies to The Times-Picayune for two one-year policy periods beginning July 1, 1996 and July 1, 1997. There was no excess policy in effect before July 1, 1996. The Times-Picayune changed its excess carrier in 1998. Zurich issued an excess crime insurance policy to The Times-Picayune for the three-year period of July 1, 1998 through July 1, 2001. Defendant's Exh. A. Each of the three excess policies provided $1,500,000 of coverage, payable only after the $1,000,000 limits of the primary policy had been paid.
Arthur Anzalone, an employee of The Times-Picayune, embezzled a total of $2,205,879 from plaintiff between January 1995 and December 2000. After discovery of the thefts in late 2000, The Times-Picayune made claims under its then-current primary policy with Federal and its excess policy with Zurich.
The excess policy issued by Zurich covers losses sustained before the effective date of the policy when the losses are not discovered until after the effective date, if certain conditions are met. The interpretation of those conditions is at issue in Zurich's pending motion for partial summary judgment.
The parties have identified the amount of thefts that took place during each policy period, as follows.
January 1, 1995 — July 1, 1996 $536,428 July 1, 1996 — July 1, 1997 $268,871 July 1, 1997 — July 1, 1998 $234,707 July 1, 1998 — July 1, 1999 $330,647 July 1, 1999 — July 1, 2000 $562,859 July 1, 2000 — July 1, 2001 $272,367
Thus, The Times-Picayune sustained losses totaling $1,040,006 before July 1, 1998, the effective date of Zurich's excess policy, and losses totaling $1,165,873 thereafter during the three-year period of Zurich's excess policy.
Pursuant to a settlement agreement with The Times-Picayune, Federal paid its primary policy limits of $1,000,000. The settlement agreement did not allocate any portion of the loss to any particular policy period. Zurich agreed to pay under the excess policy for the covered portion of The Times-Picayune's losses that were sustained after the effective date of its policy, but Zurich refused to pay for any losses sustained before July 1, 1998. This lawsuit followed.
II. ANALYSIS
A. Summary Judgment Standards
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but it is not required to negate elements of the nonmoving party's case. Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998) (citingCelotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
When a moving party alleges that there is an absence of evidence necessary to prove a specific element of a case, the nonmoving party bears the burden of presenting evidence that provides a genuine issue for trial. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5th Cir. 1999) (citing Celotex, 477 U.S. at 322-23; quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)).
A fact is "material" if its resolution in favor of one party might affect the outcome of the action under governing law. Anderson, 477 U.S. at 248; Hamilton v. Segue Software Inc., 232 F.3d 473, 477 (5th Cir. 2000). An issue is "genuine" if the evidence is sufficient for a rational trier of fact to return a verdict for the nonmoving party.Id.
To withstand a properly supported motion, the nonmoving party who bears the burden of proof at trial must come forward with evidence to support the essential elements of its claim. National Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 712 (5th Cir. 1994) (citing Celotex, 477 U.S. at 321-23). "[A] complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial." Celotex, 477 U.S. at 323.
The court must consider all evidence in the light most favorable to the nonmoving party. National Ass'n of Gov't Employees, 40 F.3d at 712-13. "Conclusory allegations unsupported by specific facts, however, will not prevent the award of summary judgment; 'the plaintiff [can]not rest on his allegations . . . to get to a jury without any "significant probative evidence tending to support the complaint.""Id. at 713 (quoting Anderson, 477 U.S. at 249).
"Factual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that an actual controversy exists." Edwards, 148 F.3d at 432;accord Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). "We do not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts." Id. (emphasis in original). "Moreover, the nonmoving party's burden is not affected by the type of case; summary judgment is appropriate in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant." Id. (quotation omitted) (emphasis in original).
B. The Contract Is Unambiguous
Zurich argues that its excess policy covers losses incurred before its inception date only if its policy would have covered those losses had it been in effect at the time of the losses, i.e., only if the losses exceeded $1,000,000 during the earlier policy period so that the excess policy then in effect would have been triggered. Zurich contends that it is not liable for any of The Times-Picayune's losses sustained before July 1, 1998 because The Times-Picayune's losses did not exceed $1,000,000 during the prior one-year policy period (or even during the prior two years when the two Federal excess policies were in effect).
The Zurich policy "follows the form" (incorporates the terms) of the primary policy issued by Federal, except as otherwise provided in the Zurich policy. The primary policy contains a "Loss Sustained Prior to Effective Date" clause ("Prior Loss clause"), which is incorporated into the Zurich policy. That clause provides:
If you were continuously insured by a policy prior to this insurance providing the same insurance as this policy, but cannot recover on a loss because that policy was terminated and its discovery period has run out, we will cover your loss provided:
1. this insurance would have covered your loss had it been in effect at the time the acts that caused the loss occurred; and
2. you discovered the loss within one year after this insurance is terminated.
Defendant's Exh. C (emphasis added).
It is undisputed that one of the conditions of the first, unnumbered paragraph (specifically, the termination requirement) and the discovery requirement of paragraph (2) are satisfied. The remainder of the Prior Loss clause contains other conditions that must be met before Zurich is obligated to provide coverage.
First, Zurich must provide coverage only if The Times-Picayune was "continuously insured by a policy prior to this insurance providing the same insurance as this policy." Second, Zurich is obligated to provide coverage only if "this insurance would have covered your loss had it been in effect at the time the acts that caused the loss occurred." The parties dispute the meaning of the terms "continuously insured by a policy." "this insurance" or "this policy," and "in effect at the time the acts that caused the loss occurred."
The parties agree, for purposes of the pending motion for partial summary judgment, that Louisiana law governs interpretation of the contract. The Times-Picayune argues that the possibility of multiple interpretations of the Prior Loss clause and other clauses in the excess policy means that the policy language is ambiguous and should be construed in favor of coverage. I have carefully considered the parties' arguments and the language of the policies, and I find that the contract is clear and unambiguous. Parol evidence concerning the intent of the parties is therefore unnecessary to interpret the contract.
Under Louisiana law, a court should interpret an insurance policy under ordinary principles for the interpretation of a contract. The intentions of the parties, as reflected by the words of the policy, should determine the extent of coverage. The words should be given their plain meanings, and the court should not change the coverage of the policy under the guise of interpreting ambiguous language. The court should consider the policy as a whole, and interpret the policy to fulfill the reasonable expectations of the parties in the light of the customs and usages of the industry. If a clause remains ambiguous after such consideration, then it should be construed against the insurer.Trinity Indus., Inc. v. Insurance Co. of N. Am., 916 F.2d 267, 269 (5th Cir. 1990) (citing La. Civ. Code arts, 2045— 2047, 2050, 2053, 2054; Breland v. Schilling, 550 So.2d 609, 610 (La. 1989); Pareti v. Sentry Indem. Co., 536 So.2d 417, 420 (La. 1988); Benton Casing Serv., Inc. v. Avemco Ins., 379 So.2d 225, 231 (La. 1979)).
"'Each provision of a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.' Contract provisions susceptible to different meanings should be interpreted 'to avoid neutralizing or ignoring any of them or treating them as surplusage,' and 'to preserve validity [of the contract].'" Texas Eastern Transmission Corp. v. Amerada Hess Corp., 145 F.3d 737, 742 (5th Cir. 1998) (quoting La. Civ. Code art. 2050; Lambert v. Maryland Cas. Co., 418 So.2d 553, 559-60 (La. 1982); Gibbs Constr. Co. v. Thomas, 500 So.2d 764, 769 (La. 1987)).
Any ambiguities must be construed against the insurer and in favor of the insured. However, the court should not change the policy's terms under the guise of interpreting ambiguous language. The court "ought not to strain to find such ambiguities, if, in so doing, they defeat the probable intentions of the parties." This is so even if it results in harsh consequences to the insured.Fountainebleau Community Bank v. Fidelity Deposit Co., No. 93-4220, 1994 WL 118334, at *2 (E.D. La. Mar. 31, 1994) (Sear, J.) (quoting Sharp v. Federal Sav. Loan Ins. Corp., 858 F.2d 1042, 1045 (5th Cir. 1988); citing La. Civ. Code art, 2056; Trinity, 916 F.2d at 269; Calcasieu-Marine Nat'l Bank v. American Employers' Ins. Co., 533 F.2d 290, 296 (5th Cir. 1976)). "We do not feel that ambiguity 'in the air' justifies a strict construction against the insurer." Trinity Indus., Inc., 916 F.2d at 269 n. 9.
C. The Prior Loss Clause Applies to All Prior Policy Periods During Which an Excess Policy Was in Effect
Zurich interprets the terms "this insurance" and "this policy" in the language of the Prior Loss clause to mean the Zurich policy. The Times-Picayune contends that these terms refer to the primary policy because they appear in the Prior Loss clause of the primary policy. The Times-Picayune argues that the language continues to refer to primary insurance, not excess insurance, after the primary limits are exhausted, because the excess policy "continue[s] in force as primary insurance," according to the exhaustion provision in Zurich's policy. Defendant's Exh. A.
I find that The Times-Picayune's interpretation is convoluted, strained and unjustified by the policy language. Because the excess policy "follows form" with the primary policy, the only reasonable interpretation of the terms "this insurance" and "this policy" in the Prior Loss Provision is that they refer to the primary policy when the terms of that policy are being explained or set out and to the excess policy when the terms of that policy are being explained or set out, to the extent that the excess policy differs from the primary policy,
Thus, the Prior Loss clause necessarily provides that if The Times-Picayune was continuously insured by a policy prior to [Zurich's] insurance providing the same insurance as [Zurich's] policy, but cannot recover on a loss because that policy was terminated and its discovery period has run out, we will cover your loss provided: 1. [Zurich's] insurance would have covered your loss had it [Zurich's policy] been in effect at the time the acts that caused the loss occurred. . . .
Zurich argues that The Times-Picayune was "continuously insured by a policy prior to" July 1, 1998 (the effective date of Zurich's excess policy) only for the single excess policy period of July 1, 1997 through July 1, 1998. Defendant argues that the term "a policy" refers to a single excess policy and that the term "continuously insured by a policy" refers only to that policy period immediately preceding the effective date of Zurich's policy. Zurich argues that this language does not include the coverage periods of any prior primary policies or of any excess policies before July 1, 1997. According to Zurich, the terms extend only to the policy that the Zurich policy directly replaces and for which Zurich provides "the same insurance," i.e., the excess policy in effect directly preceding the Zurich policy period. Because the Zurich policy did not directly replace the excess policy in effect from July 1, 1996 to July 1, 1997, defendant argues that losses sustained during that policy period are not covered by its policy.
Zurich's argument has merit in part. The phrase "continuously insured by a policy prior to this [Zurich's] insurance providing the same insurance as this [Zurich's] policy" is clear and unambiguous. It means that The Times-Picayune must have been insured without interruption by a (some, any) policy of excess insurance that provided the same coverage as the Zurich excess policy. However, nothing in the Prior Loss clause or in the policy as a whole can reasonably be interpreted to mean that excess coverage extends back only for a single, one-year policy period when qualified policies (i.e., policies that provided the same insurance as Zurich's policy) were in effect without interruption for more than one prior policy period. "The words [of the contract] should be given their plain meanings. . . ."Trinity Indus., Inc., 916 F.2d at 269; see, e.g., Winthrop Weinstine v. Travelers Cas. Sur. Co., 993 F. Supp. 1248, 1251 (D. Minn. 1998), aff'd, 187 F.3d 871 (8th Cir. 1999) (noting that the parties had stipulated that plaintiff was "continuously insured" when it carried crime insurance for three consecutive policy periods). Defendant cites Lincoln Tech. Inst. of Ariz., Inc. v. Federal Ins. Co., 927 F. Supp. 376 (D. Ariz. 1994), aff'd, 76 F.3d 387, 1996 WL 40119 (9th Cir. 1996) (unpubl. opin.), and Winthrop Weinstine v. Travelers Cas. Sur. Co., 187 F.3d 871 (8th Cir. 1999). However, neither of these cases is factually on point. To interpret the Prior Loss clause as Zurich contends would render the term "continuously" meaningless because any insurance policy will provide continuous coverage during its own policy period.
Moreover, as the facts of this and other reported cases demonstrate, losses from embezzlement or fraud frequently may extend over several years before they are discovered. See, e.g., id. at 873 (accounts payable clerk stole 153 checks over 4 years before losses were discovered); Brigham Young Univ. v. Lumbermens Mut. Cas. Co., 965 F.2d 830, 831 (10th Cir. 1992) (professor stole 300 works of art from university over 10-year period). Insureds purchase crime insurance with prior loss provisions with the reasonable expectation that they may change carriers and remain insured for as-yet-undiscovered, potentially substantial, prior losses. Zurich's argument in this regard would confound these reasonable expectations.
To have been "continuously insured" for purposes of the Prior Loss clause therefore means that The Times-Picayune was covered by an excess insurance policy or policies for as long as that excess coverage was in effect without interruption. The Times-Picayune had excess coverage in place before the effective date of Zurich's policy from July 1, 1996 through July 1, 1998. The Prior Loss clause obligates Zurich to provide coverage during that entire period.
However, The Times-Picayune was not "continuously insured by a policy prior to this insurance providing the same insurance as this policy" before July 1, 1996 because there was no "same insurance," i.e., no excess policy, in effect before that date. See First Nat'l Bank of Amarillo v. Continental Cas. Co., 71 F.2d 838, 839 (5th Cir. 1934) (bankers' blanket excess bond does not cover losses prior to its effective date when the bank had no excess coverage during the prior policy period).
D. Zurich's Policy Would Not Have "Been in Effect at the Time the Acts That Caused the Loss Occurred"
Zurich argues that its obligation to provide coverage was not triggered because its policy would not have "been in effect at the time the acts that caused the loss occurred," as required by the Prior Loss clause. It is undisputed that excess coverage attaches only "after all of the Limit(s) of Liability of Underlying Insurance has been exhausted by the actual payment of loss(es)." Defendant's Exh. C.
Zurich argues that The Times-Picayune did not suffer a loss greater than $1,000,000, the limit of the primary policy, during any single policy period before July 1, 1998, The Times-Picayune suffered a total loss in excess of $1,000,000 before July 1, 1998 only if its losses during all of the years before that date are added together.
Zurich contends that its policy would have "been in effect" and provided coverage in an earlier time period only if the $1,000,000 limit of the underlying primary policy was exhausted during that policy period. Because Anzalone embezzled $234,707 during the immediately preceding policy period of July 1, 1997 through July 1, 1998, Zurich argues that the primary policy limits would not have been exhausted during that period and Zurich's policy would not have covered the loss. I have rejected Zurich's argument that the Prior Loss clause applies only to the immediately preceding policy period and I have held that it applies to the two prior policy periods during which The Times-Picayune maintained excess coverage. However, Anzalone embezzled a total of $503,578 during those policy periods. Thus, Zurich appears to argue that the primary policy limits would not have been exhausted during either or both of those periods and therefore Zurich's policy would not have covered the losses.
The Times-Picayune responds that the Zurich policy, particularly the limit of liability and exhaustion provisions, does not restrict the losses that must have exhausted the primary policy solely to losses sustained during the policy period. The Times-Picayune argues that all loss covered by the primary policy, including loss sustained during prior periods covered by the Prior Loss provision, may exhaust the primary policy limits and thus trigger coverage by the excess policy, so that Zurich owes The Times-Picayune the full amount of $1,205,879 lost over and above the primary policy limits. Plaintiff contends that the policy does not allow Zurich to allocate payment amounts by the primary insurer between losses sustained during and those sustained before the policy period. The Times-Picayune asserts that its settlement with Federal for $1,000,000 does not make any such allocation, but that Federal's payment necessarily included some of the amounts lost before July 1, 1998. The Times-Picayune argues that because the excess policy "continue[s] in force as primary insurance" upon exhaustion of the primary policy limits, Defendant's Exh. A, it does not matter whether the Zurich excess policy would have covered the loss had it been in effect when the loss occurred and also does not matter that annual losses incurred during any single policy period were less than $1,000,000. What matters, according to plaintiff, is that the primary policies would have provided coverage if the losses were discovered during their respective discovery periods.
Again, I find that The Times-Picayune argues for a strained, convoluted and unreasonable reading of the policy language, while Zurich's argument is based on the plain language of the policy.
The Fifth Circuit in First Nat'l Bank of Amarillo held under somewhat similar facts that the issuer of an excess banker's blanket bond was not liable for any amount of the loss incurred by the bank, either before or after the effective date of the excess bond. Defendant Continental Casualty Co. issued to the bank a primary bond with coverage up to $50,000 and an excess bond for coverage of losses in excess of $50,000. Both bonds recited that they replaced a single prior (primary) bond and they covered losses under the prior bond that were discovered during the current bonds' effective period, if such losses would have been recoverable under the prior bond. The bank discovered during the effective period of the Continental bonds that a bank employee had embezzled a total of $78,000, of which $46,000 had been stolen before the effective date of the two current bonds. Continental paid the $50,000 limit of its primary bond (which included $46,000 of prior losses and $4,000 of losses sustained during its own policy period), but denied coverage under the excess bond for the remaining $28,000 loss. First Nat'l Bank of Amarillo, 71 F.2d at 838.
The Fifth Circuit declined to add together the losses incurred in the two separate policy periods to reach the $50,000 primary bond limits and thus trigger excess coverage for the remaining $28,000 loss. The court reasoned that the excess bond did not cover the $28,000 loss that was incurred during the current policy period because there had not been a loss greater than $50,000 during that period; thus, the underlying condition for excess bond coverage had not been triggered. Further, the Fifth Circuit held that the excess bond by its terms covered only prior losses that would have been recoverable under the prior bond and under the terms of the excess bond. The $46,000 prior loss could not have been recoverable out of the excess bond under the prior bond because there was no previous excess bond and because the prior loss did not exceed $50,000. Id. at 838-39. Finally, the court held that the current primary and the prior bond
may not properly be treated as one and thereby make the excess bond liable for losses which it had not assumed. The excess bond assumed liability for losses above $50,000 incurred either before or after its effective date; but it did not contemplate or authorize the adding together or combining of losses incurred both before and after that date. To take future losses and add them to past losses and thus make up an amount sufficient to create a liability under the excess bond would be not to construe the contract by which the Casualty Company agreed to be bound, but to make one under which the bank could recover.Id. at 839.
Thus, I find that Zurich's policy would not have "been in effect at the time the acts that caused the loss occurred." as required by the Prior Loss clause, because its obligation extended only to the two prior policy periods during which The Times-Picayune had carried excess coverage and the losses sustained during those two periods did not exceed the $1,000,000 limit of the primary policy.
Accordingly, Zurich is entitled to summary judgment in its favor as a matter of law that it is not liable for payment of any losses sustained prior to July 1, 1998.
E. Plaintiff's Motion to Compel Claim Related-Documents
Having reviewed in camera the documents that Zurich has withheld from The Times-Picayune, I find that the documents are covered by the attorney-client privilege, with the exceptions noted herein, and that defendant has not waived its privilege.
"The burden of substantiating a claim of attorney-client privilege falls upon the party asserting the privilege." Exxon Corp. v. St. Paul Fire Marine Ins., 903 F. Supp. 1007, 1008 (E.D. La. 1995) (Jones, J.) (citing In re: Shell Oil Ref. 812 F. Supp. 658, 661 (E.D. La. 1993) (citing Smith v. Kavanaugh, Pierson Talley, 513 So.2d 1138, 1143 (La. 1987))); High Tech Communications, Inc. v. Panasonic Co., No. 94-1477, 1995 WL 45 847, at * 1 (E.D. La. Feb. 2, 1995) (Vance, J.) (citing Hodges, Grant Kaufman v. United States, 768 F.2d 719, 721 (5th Cir. 1985)) (other citations omitted).
Zurich has carried its burden, with the exceptions noted below. The documents produced to me for in camera review clearly consist of confidential communications between attorneys and client, made for the purpose of facilitating the rendition of professional legal services to the client. La. Code Evid. art. 506(B).
Once a claim of privilege has been established, the burden of proof shifts to the party seeking discovery to prove any applicable exception to the privilege, such as waiver. Perkins v. Gregg County, 891 F. Supp. 361.363 (E.D. Tex. 1997); Texaco, Inc. v. Louisiana Land Exploration, Inc., 805 F. Supp. 385, 387 (M.D. La. 1992). The Times-Picayune has not carried its burden to show that Zurich waived its attorney-client privilege concerning the documents produced to me or that Cozen O'Connor acted in any way other than as lawyers advising a client.
Accordingly, plaintiff's motion to compel is denied in substantial part. However, the documents numbered 2, 4, 5, 6 and 8 on the index of documents submitted for in camera review are not privileged. They are merely transmittal letters that convey no confidential attorney-client communication, regardless whether they were sent from, addressed to or copied to an attorney or a paralegal.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that Zurich's motion for partial summary judgment is GRANTED. IT IS FURTHER ORDERED that plaintiff's motion to compel claim related-documents is DENIED, except as to the transmittal documents identified above.
This action will proceed as follows. Counsel for the parties must meet and confer in the fashion suggested by Fed.R.Civ.P. 26(f). They should also engage in settlement discussions. Within two weeks of entry of this order, counsel must provide me with a joint report, which sets forth the matters that remain in dispute in this lawsuit and addresses the considerations set forth in Rule 26(f). The report should include a discussion of what remains to be done to prepare for trial, the status of settlement negotiations and a suggested trial date. After receiving the report, I will issue a scheduling order setting a trial date and other deadlines, and/or schedule a telephone conference with counsel, if necessary.