Free Statement of Material Facts - District Court of Connecticut - Connecticut

A ase 3:00-cv—00834-SRU Document 69 Filed 12/16/2004 Page 1 of 4
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
STEWARD MACHINE COMPANY : 3:00 CV 00834 (SRU)
PLAINTIFF :
VS. 2
WHITE OAK CORPORATION et al :
DEFENDANT : December 16, 2004
1 DEFENDAN T NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH,
1 PA’s LOCAL RULE 9(c)(1) STATEMENT 4
Pursuant to Local Rule of Civil Procedure 9(c) , the Defendant National Union Fire
Insurance Company of Pittsburgh PA hereby submits this statement of each material fact which
it contends there is no genuine issue to be tried.
1. On or about August 8, 1994 Steward and White Oak entered into a Purchase
Order Contract (the "Purchase Order"), pursuant to which Steward agreed to fabricate and
deliver certain bridge lifting machinery ("the Machinery") to White Oak, in consideration for an
agreed-upon total price of $7,553,000. E Purchase Order, a true copy of which is attached as
Exhibit 1 to the Affidavit of Frank Zito ("Zito Affidavit"), A
2. The Machinery was to be provided in connection with a State of Connecticut
Department of Transportation Proj ect for the Construction of the Tomlinson Bridge, New Haven
Connecticut ("the Proj ect"). White Oak was the general contractor on the Project.
E Purchase Order, Exh, 1 to Zito Affidavit.
3. On or about June 6, 1994 National Union as surety and White Oak as principal
issued a payment bond ("the Bond") for the Proj ect. & Payment Bond, a true copy of which is
attached as Exhibit 2 to the Zito Affidavit. A I A
WOLF, HOROWITZ, ETLINGER, & CASE L. L. C. Counselors AtLaw E
99 Pratt stmt, Hartford, CT 06103 *(860) 724-6667 * Fax (860) 293-1979 * Juris N6. 402488

if ase 3:00-cv—00834-SRU Document 69 Filed 12/16/2004 Page 2 of 4 A
4. In this action Steward has asserted a business disruption and inefficiency claim
against National Union and White Oak for damages caused as a result of the alleged interference
in Steward’s operations caused by the presence of the Machinery at Steward’s facilities from
1997 through 2000 (the "Storage Period"). This claim has been calculated based on the
additional labor hours which Steward claims it was required to incur on other projects in its
facilities during the Storage Period. None of the damages asserted in this claim reflect labor costs
incurred on the White Oak proj ect. The calculations supporting of this claim are included in the
Expert Witness Reports of J. Lester Alexander. According to Mr. A1exander’s last report,
Steward claims to have incurred additional labor costs of$ 1,895,551 on projects other than the
White Oak Proj ect. S; Zito Affidavit, 1] 9 & 10. S; @ Expert Witness Report of J. Lester
Alexander.
5. In this action, Steward has asserted a "storage fee claim" of $2,1 1 1,017.23.
Steward has calculated this claim by imposing a fee for its alleged storage of the Machinery
during the Storage Period. The Purchase Order makes no reference to any "storage fee" to be)
paid by White Oak. nor is any rate for storage stated in the Purchase Order. In calculating the
storage fee, Steward applied a storage rate which it allegedly obtained from warehouse and
storage facilities. The storage fee claim asserted by Steward does not reflect any actual out-of-
pocket fee paid or expenses incurred by Steward for storage of the machinery, but rather the
amount which Steward claims it would have paid, but did not, if it had placed the machinery in
storage in a storage facility. ge Purchase Order; Zito Affidavit, il ll.
2
WOLF, HoRow1Tz, ETLINGER, & CASE L. L. C. C6rmre16rrAzLaw
99 Frau Street, Hanford, CT 06103 *(860) 724-6667 * Fax (860) 293-1979 * Juris N6. 402488 r

ase 3:00-cv—00834-SRU Document 69 Filed 12/16/2004 Page 3 of 4
6. On or about August 24, 2000, Steward, National Union and White Oak entered p
into an Agreement (the "August 2000 Agreement") with respect to the Machinery and this ;
Action. Paragraph 12 of the August, 2000 Agreement provides:
Steward National Union and White Oak each agrees that it will not seek to recover in the
Bond Action any damages accruing after the date of this Agreement.
E August 2000 Agreement, a true copy of which is attached to the August, 2000 Agreement is
attached as Exhibit 3 to the Zito Affidavit.
7. Each of Steward’s claims against National Union include substantial claims for
prejudgrnent interest accruing after August 24, 2000. gg Zito Affidavit, 1[ 13.
8. Steward’s claim against National Union includes a "costs of storage claim" of
$ 431,669, consisting of labor and material costs which Steward claims it actually incurred to
store, move and maintain the machinery during the Storage Period. See Zito Affidavit, 1] 14. S;
gg Expert Witness Report of J . Lester Alexander.
NATIONAL UNION FIRE INSURANCE
COMPANY OF PIT S” URG , PA
BY //7
( y M. ’ ase { ,
W lf orowitz, Etlinger & Case, LLC ·
24 in Street j
H rt rd, CT 06106-1852 _
( 6 724-6667
t 610
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WOLF, HOROWITZ, ETLINGER, & CASE L. L. C. Counselors At Law
99 Pratt Street, Hartford, CT 06103 *(860) 724-6667 * Fax (860) 293-1979 * Juris No. 402488 Y

ase 3:00-cv—00834-SRU Document 69 Filed 12/16/2004 Page 4 of 4
CERTIFICATION
This is to certify that a true copy of the foregoing document was mailed via first class J
postage, prepaid, this 16th day of December, 2004, to all counsel of record. _
. William Egan 4
Barbara Crowley
Egan & Crowley
234 Church Street
New Haven, CT 06510
Jane I. Milas
t Garcia & Milas, P.C.
44 Trumbull Street p
New Haven, CT 06510
Phone — (ZO3)773-3 824 / j
Fax — (203) 782-2312 1 ’
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WOLF, HOROWITZ, ETLINGER, & CASE L. L. C. C0unsel0rsAt Law Q
99 Pratt Street, Hartford, CT 06103 *(860) 724-6667 * Fax (860) 293-1979 * Juris N0. 402488 Q