Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case 1:05-cv-00022-MPT Document 123 Filed O9/19/2006 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ST. PAUL MERCURY INSURANCE )
COMPANY )
)
and )
)
PACK AND PROCESS, ENC. )
)
Plaintiffs, )
v. )
) Case No. O5—OO22 (KAJ)
)
MALY YAN )
I
Defendant, )
>l==i=>l=*$>i=>l<€¤=l=>E=>l¢4==%>i<>i<=€<=l==!==%==l<>$==l<>!==l==l==E=>l==I=>l=>E=#==l<#<>1=>l=>l<>l<
YAN TPEOU, et. ai )
I
}
Plaiiitiflis, )
)
v. ) Case No. O5~OO5i3 (KAJ)
)
PACK & PROCESS, INC., et. ni. ) CONSOLIDATED CASES
I )
Delendeints. )
I’LAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS’ PETITION FOR
LEAVE OF COURT TO FILE SUR REPLY TO PLAINTIFFS’
REPLY IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT
Defendants Peiitionfbr Leave ofCourt to File Sur Rep! y to Plainzijjfs ’ Reply (the “Petition”)
[D}. 121] is noihing more than at ‘olatnnt obfoseation of the clear end unambiguous terms of the St.
Paui policies and should be denied by this Court. In support of the Petition, it is alleged thet
Plainiift`s’ Reply Brief [Di. II?] piesents a contradictory argument concerning the definition of
‘°protected §)€1'SO1'I” under the various insuring agreements contained within the St. Pant policies
which had not been previously assezted end tequires ‘°claritication." Defendeints’ assertion is simply

Case 1:05-cv-00022-MPT Document 123 Filed O9/19/2006 Page 2 of 4
without merit and should be rejected by this Court.
in her Answering Brief {Di. l l i], Defendant asserted she is a protected person under the
urnhreila excess insurance policy (°‘umbrella policy") issued to Pack and Process, lnc. ("Paci< and
Process"). in support of this assertion, Defendant referred the Court to the following language inthe
umbrella policy: l
Under this provision, employees of a corporation are protected
persons oniy for work done within the course of employment by the
corporation or the employee’s performance of duties related to the
conduct ofthe corporation.
(See Umbrella Excess Policy at p. 7 of 20, attached as Exhibit “A” to Plaintiffs’ Reply Brief [Di.
l 17] ).
What Defendant faiied to advise this Court is that the foregoing policy provision is contained in the
umbreila excess policy section entitled "Who is Protected for Claims Not Related to Aut0." (See
Umbrella Excess Policy at p. 6 and 7 of 20) (emphasis added). Not surprisingiy, the cornnierciai
general liability portion ofthe St. Pau? primary policy contains the identical provision (see Form
47500 Rev. l·96 at pp. 5-6 ot`22, attached as Exhibit ‘°G’” to Plaintiff”s Opening Brief{D.i. i07}).
in her Arnnreririg Brie/Q Defendant conceded that she is not a protected person under the
commercial general liabi i ity and auto liability policies that St. Paul issued to Pack and Process. (See
Defendant` s An.s·nrer·irzg· Brie! at p. 26). Nevertheless, Defendant argued that she is a protected person
under the foregoing provision in the umbrella excess policy, even though that language mirrored the
ianguage inthe commercial general liability provision under which Defendant conceded she was not
a protected person. Most disturbingiy, Defendant faiied to advise this Honorable Court that the
policy provision in the um breila policy relied upon by Defendant clearly states that it does not apply
to claims reiated to autos.
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Case 1:05-cv-00022-MPT Document 123 Filed O9/19/2006 Page 3 of 4
ln their Reply Brie/Q Plaintiffs merely alerted the Court to this omission by Defendant, by
pointing out that the coverage provided under the umbrella excess policy for “auto related claims"
is as follows:
Who is Protected for Auto-Related Claims
Any person or organization who is a protected person under your
automobile basic insurance for the use ofan auto is a protected person
under this agreement.
(See Umbrella Excess Policy, Ex. "A”’ to Plaintiffs Reply Brlefi at p. 8 of20).
'i"hus, in order for Defendant to quality as a protected person under the umbrella excess policy for
claims related to autos, site must clearly qualify as a protected person under the terins of the auto
liability policy. Delendant has conceded that she is not a protected person under the auto liability
policy that St. Paui issued to Pack and Process. Defendant does not argue that she is a protected
person under the auto liability policy issued by St. Paul to Pack and Process, Therefore, she cannot
quality as a protected person under the umbrella excess poiicy for °‘auto—reiated claims?
Instead ol addressing this issoe, Defendant resorts to arguing that Plaintiffs are attempting
to use the definition ol` "protected person" for auto-related claims "in order to obviate their
responsibiiity under the St. Paul policy? (See Defendant? proposed Snr Reply to Pleia1g§·Ci·’ Reply
in Support ofllzeir Molionfor Summary htclgmenl (Ex. to D1. l2l) at pp. i~2). Either Defendant
did not review the entire umbrelia excess policy or Defendant is attempting to misrepresent to this
Court the clear and itnainbigtious terms of the umbrella excess policy. Defendant’s attempts to
misconstrue Plaintil`i"s arguments aside, the simple fact remains that the umbrella excess policy
clearly and unambiguously sets ‘£’orth the coverage provided for anto—related claims and Defendant
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Case 1:05-cv-00022-MPT Document 123 Filed O9/19/2006 Page 4 of 4
is oiearly not a "pi·otected person" under this coverage} The clear and unambiguous language ofthe
umbrella excess poiicy demonstrates this fact and Defendant has conceded this faet.
Wl—llEREPORfi, in light ofthe foregoing, Plaintiffs respectfully submit there is no reasonable
basis on which to grant }Defendant`s Peliliorzfor Leave ofCoirrl to File cx Sur Reply to Plriirill]j‘.i"
Reply in Support ofTl¤eir Mlotionjor Summary Juclgmerzt. Thus, Plaintiffs respectfully request that
this Honorabie Court deny Defendant’s Petition.
Dated: September l9, 2006
Respectfully submitted,
l¥3lPi%`ERA"l`O, GENTILOTTI, BIDEN & BALICK
lianm}Coni1 r Biff ato (#3273) _
Joseph I . Koury (#4272)
1308 D laware Avenue
PO. Box 2165
Wilmington, Delaware 19899
(302) 429-1900
(302) 429-1900
and
iiranois J. Deasey, Esq.
irlenri Marcel, Esq.
Deasey, Mahoney & Bender, Ltd.
1800 John F. Kennedy Bivd., Suite 1300
Philadelphia, Pennsylvania 19103~2978
(21 5)587~9400 1
rlliforrzeysfor Plezintgjk
'A fuli expianation ofwhy this St. Paul policy does not provide coverage for Defendant
for the June E8, 2001 accident is set forth in Part C of Plaintiffs Opening Brief
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