Free Reply Brief - District Court of Delaware - Delaware

Case 1:04-cv-01467-JPF

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Filed 09/28/2005

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Daniel K. Hogan (DE #2814) THE HOGAN FIRM 1311 Delaware Avenue Wilmington, Delaware 19806 Telephone: 302-656-7540 Facsimile: 302-656-7599

Sander L. Esserman (TX Bar No. 06671500) David A. Klingler (TX Bar No. 11574300) STUTZMAN, BROMBERG, ESSERMAN & PLIFKA, A Professional Corporation 2323 Bryan Street, Suite 2200 Dallas, Texas 75201 Telephone : (214) 969-4900 Facsimile: (214) 969-4999

COUNSEL FOR APPELLEES

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

CENTURY INDEMNITY CO., as successor To CCI Insurance Co. as successor to Insurance Co. of North America and Central National Insurance Co., Appellant, v. BARON & BUDD, P.C., and SILBER PEARLMAN LLP, Appellees.

Civil Action Docket No.: 04-CV-1467 Judge: John P. Fullam

IN RE: OWENS CORNING, et al. Debtors.

Chapter 11 Case Nos. 00-3837 ­ 3854 (JKF) (Jointly Administered)

Dated: September 27, 2005

CITATION OF ADDITIONAL SUBSEQUENT AUTHORITY PURSUANT TO LOCAL RULE 7.1.2(c) BY APPELLEES BARON & BUDD, P.C., AND SILBER PEARLMAN LLP

Case 1:04-cv-01467-JPF

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The law firms of Baron & Budd, P.C. and Silber Pearlman, LLP (collectively, "Appellees") file this citation of additional subsequent authority pursuant to Local Rule 7.1.2.(c) to apprise this Court of Judge Joy Flowers Conti's recent decision affirming another order substantively identical to the order at issue in this appeal. Judge Conti's decision was rendered in Certain Underwriters at Lloyd's, London v. Pittsburgh Corning Corp. (In re Pittsburgh Corning Corp.), Civil Action No. 04-1814, 2005 WL ------- (W.D. Pa., Sept. 27, 2005).1 A copy of the Pittsburgh Corning opinion is attached hereto as Exhibit A for the Court's convenient reference, and may further inform the Court's consideration of the appeal sub judice. Judge Conti's decision in Pittsburgh Corning rests on justiciability grounds. The

Pittsburgh Corning court concluded that the appellant insurers had failed to show that they possessed the requisite standing to maintain their appeals: For purposes of standing, this court cannot find that appellants meet the "aggrieved persons" test. The court finds that appellants failed to show that the 2019 Order diminished their property, increased their burdens or impaired their rights. Pittsburgh Corning at 16. Judge Conti concluded in the alternative that the insurers' appeal of the 2019 Order in Pittsburgh Corning was not ripe because the insurers had not availed themselves of a mechanism
in the 2019 Order itself in seeking to obtain access to the so-called 2019 exhibits. In contrast, the

1

The United States Bankruptcy Court for the District of Delaware, Honorable Judith K. Fitzgerald, issued identical "Revised Order[s] Requiring Filing of Statements Pursuant to Fed. R. Bankr. P. 2019" on October 22, 2004, in a number of the mass tort reorganization cases then pending before her in this District and in the District of Western Pennsylvania. A number of these "2019 Orders" were appealed. Appellees have previously brought to the Court's attention District Judge Joseph J. Farnan, Jr.'s decision in late July affirming two orders substantively identical to the order at issue in this appeal in Certain Underwriters at Lloyd's, London v. Future Asbestos Claim Representative (In re Kaiser Aluminum Corp.), 327 B.R. 554, 2005 WL 1799189 (D. Del. 2005). (See D. I. 23). No further appeal was taken from Judge Farnan's affirmance, which is now final.

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appellant here, Century Indemnity Co., has already obtained access to the 2019 exhibits pursuant to that very mechanism, raising the specter of mootness. See Motion to Dismiss Bankruptcy Appeal as Moot by Appellees Baron & Budd, P.C., and Silber Pearlman, LLP with supporting memorandum, D.I. 17 & 18.

Dated: September 27, 2005 Wilmington, Delaware

/s/ Daniel. K. Hogan Daniel K. Hogan (DE #2814) THE HOGAN FIRM 1311 Delaware Avenue Wilmington, Delaware 19806 Telephone: 302-656-7540 Facsimile: 302-656-7599 and STUTZMAN, BROMBERG, ESSERMAN & PLIFKA, A Professional Corporation Sander L. Esserman (TX Bar No. 06671500) David A. Klingler (TX Bar No. 11574300) 2323 Bryan Street, Suite 2200 Dallas, Texas 75201 Telephone : (214) 969-4900 Facsimile: (214) 969-4999 COUNSEL FOR APPELLEES BARON & BUDD, P.C. AND SILBER PEARLMAN, LLP