Free Motion to Amend/Correct - District Court of Delaware - Delaware

Case 1:04-cv-01294-JJF Document 95-6 Filed 08/23/2006 Paget of 2
LAW OFFICES
NISEN & ELLIOTT, LLC
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PAUL F. GERBOSI E00 WEST ADAMS STREET DONALD F, FROEHLKC
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ROBERT O.·MIDDLETON . PATRICK VINING
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HELEN M.
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VIA E-MAIL AND
REGULAR MAIL
Irving C. Faber, Esq.
Grippo & Elden
111 S. Wacker Drive, #5100
Chicago, IL 60606
Re: Judge Farnan's Order Granting Burns'
Motion for Temporary Restraining
Order and Preliminary lnjunction
Dear lrv:
Enclosed herewith is another copy of the Order Judge Faman entered March 22,
2006 granting Bums' Motion for Temporary Restraining Order and Preliminary injunction,
and the Judge's Memorandum Opinion ofthe same date. Judge Farnan's March 22 order
directed the parties to submit an agreed lnjunction Order prohibiting Flowserve from:
"a. terminating and replacing Bums’ choice of defense counsel for the
underlying asbestos claims, unless Flowserve undertakes to pay such
replacement counsel with its own funds;
negotiating a ‘global’ or other settlement of its asbestos liability using,
attempting to use or assigning the BWC insurance coverage to fund such
settlements." (Emphasis supplied)
As you know, the parties did not agree on the tenns of an injunction Order and
submitted competing orders, and until the Judge acts further, his March 22 Order and
Opinion are binding and constitute the law of the case. Thus, in our view it would be a
violation of the March 22 Order and inappropriate for Flowserve to “use" or to "attemptto
use" any Borg-Warner Corporation insurance proceeds to fund settlements or pay its
counsel
Exhibit C

Case 1:04-cv-01294-JJF Document 95-6 Filed 08/23/2006 Page 2 of 2
Muslim & ELLIOTT, LLC
ln/ing C. Faber, Esq.
June 28, 2006
Page 2
Although the umbrella carriers are not parties to the Delaware action, by this letter
and Mike Moirano’s e—mail dated March 22, 2006, the umbrella carriers are on notice of
Judge Faman’s March 22 Order and we believe, as a consequence, the Order is binding
on the carriers. Any payment, or any other action in violation of the Order, such as
attempting to circumvent the plain meaning of the Order, would be at the carriers! and
FIowserve’s sole risk.
Please let us know if you have any questions.
Very truly yours,
Edward B. Mueller
EBM:jm
Enclosures
cc: Lawrence E. Henke, Esq.
Christopher M. Bechhold, Esq.
Gregory Rogus, Esq.
Patrick Shine, Esq.
Lisa S. Brogan, Esq.
Laura S. McKay, Esq. »
Michael H. Moirano, Esq.
Anthony Packard, Esq.