Preview
FILED: NEW YORK COUNTY CLERK 06/28/2021 12:02 PM INDEX NO. 451540/2021
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/28/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
Index No. 451540/2021
In the matter of
The Ancillary Receivership of (Hon. Verna L. Saunders)
Mot. Seq. #002
BEDIVERE INSURANCE COMPANY
AFFIRMATION IN SUPPORT
OF MOTION TO MODIFY THE
180-DAY STAY TO ALLOW TO
PROCEED IN EXTREMIS
ASBESTOS ACTIONS IN
WHICH ALLEGED BEDIVERE
INSURED COLGATE-
PALMOLIVE COMPANY OR
FULTON BOILER WORKS,
INC. IS A NAMED
DEFENDANT
Seth A. Dymond, an attorney duly admitted to practice before the Courts of the State of
New York, affirms the following statements to be true under the penalties of perjury:
1. I am a partner of the law firm Belluck & Fox, LLP, attorneys for various
terminally-ill asbestos plaintiffs in New York State courts. This motion is filed, in a limited
capacity, on behalf of all in extremis asbestos plaintiffs with actions currently pending or to be
commenced in New York State court against COLGATE-PALMOLIVE COMPANY
(hereinafter “Colgate”) or FULTON BOILER WORKS, INC. (hereinafter “Fulton”), who both
allege to be insureds of Bedivere Insurance Company (hereinafter “Bedivere”).
2. My affirmation is submitted in support of the motion of all pertinent in extremis
asbestos plaintiffs’ to deem the stay inapplicable where Bedivere no longer has financial
obligations for asbestos liabilities as to Colgate or Fulton due to reinsurance agreements, but to
the extent otherwise, to modify the stay to permit such in extremis asbestos actions to proceed
upon their accelerated trial preferences under the particular circumstances of these cases, which,
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inter alia, will not impact Bedivere’s assets or the Ancillary Receiver’s liquidation organization
process. Should this Court decline to modify the stay, the asbestos plaintiffs respectfully request
that this Court modify its June 17, 2021 Order to expressly provide that the Coordinating Justices
of the Asbestos Litigation Dockets of New York State have the authority to sever Colgate,
Fulton, or any other insured of Bedivere from any pertinent asbestos action.
3. Annexed hereto as Exhibit A is a true and correct copy of an excerpt of the New
York City Asbestos Litigation Docket (“NCYAL”) Case Management Order (“CMO”).
4. Annexed hereto as Exhibit B is a true and correct copy of decision of former
NYCAL Coordinating Justice, Hon Peter H. Moulton, accompanying the CMO.
5. Annexed hereto as Exhibit C is a true and correct copy of the decision in Fulton
Boiler Works, Inc. v. Am. Motorists Ins. Co., 828 F. Supp. 2d 481 (N.D.N.Y. 2011).
6. Annexed hereto as Exhibit D is a true and correct copy of the Amended
Complaint filed in Fulton Boiler Works, Inc., supra.
7. Annexed hereto as Exhibit E is a true and correct copy of Colgate’s Supplemental
Responses to Plaintiff’s First Set of Request for Product of Documents and Electronically-Stored
Information in Nosse v ArvinMeritor, Inc., et al. (Cal. Super Ct, L.A. Cty, June 16, 2016).
8. Annexed hereto as Exhibit F is a true and correct copy of Colgate’s letter
submitted to Hon. Adam Silvera, dated June 17, 2021.
9. Annexed hereto as Exhibit G is a true and correct copy of Fulton’s letter
submitted to Hon. Adam Silvera, dated June 18, 2021.
10. Annexed hereto as Exhibit H is a true and correct copy of Judge Mendez’s
decision in In re: The Ancillary Receivership of AMICO, AMMICO, & Lumbermens Mut. Cas.
Co., Index No. 400532/13 (Sup Ct., N.Y. Cty, Sept 17, 2013).
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11. Annexed hereto as Exhibit I is a true and correct copy of the asbestos plaintiff’s
responsive letter submitted to Hon. Adam Silvera, dated June 18, 2021.
12. Annexed hereto as Exhibit J is a true and correct copy of Colgate’s second letter
submitted to Hon. Adam Silvera, dated June 21, 2021.
13. Annexed hereto as Exhibit K is a true and correct copy of Fulton’s counsel’s
email to Hon. Adam Silvera, dated June 21, 2021.
14. Annexed hereto as Exhibit L is a true and correct copy of email correspondences
between Belluck & Fox and the Ancillary Receiver, dated June 16-17, 2021.
15. Annexed hereto as Exhibit M is a true and correct copy the article entitled Ruling
in 37-year-old Pollution Dispute Precedes insurer’s Proposed Liquidation, located at
https://www.spglobal.com/marketintelligence/en/news-insights/latest-news-headlines/ruling-in-
37-year-old-pollution-dispute-precedes-insurer-s-proposed-liquidation-63036921
16. Annexed hereto as Exhibit N is a true and correct copy of excerpts of
OneBeacon’s retroactive reinsurance agreement with National Indemnity Company.
17. Annexed hereto as Exhibit O is a true and correct copy of the article entitled
OneBeacon 2019 Financials – It’s Not Pretty, located at
https://www.kcic.com/trending/feed/onebeacon-2019-financials-it-s-not-pretty/
18. Annexed hereto as Exhibit P is a true and correct copy of in extremis plaintiff
Tippin’s letter submitted to Hon. Adam Silvera, dated June 23, 2021.
19. Annexed hereto as Exhibit Q is a true and correct copy of the Affidavit of Corey
Tippin, dated June 24, 2021.
20. Annexed hereto as Exhibit R is a true and correct copy of the email
correspondence of Fulton’s Counsel to Hon. Erin P. Gall, dated June 1, 2021.
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21. No prior request for this relief has been made before this Court or formally made
before any other Court of concurrent jurisdiction.
WHEREFORE, based upon the evidence set forth herein, and based upon the in extremis
asbestos plaintiffs’ Memorandum of Law in Support of Motion to Modify the 180-day stay, the
in extremis asbestos plaintiffs respectfully request that this Court enter an Order deeming the
stay not applicable to asbestos actions in which COLGATE-PALMOLIVE COMPANY or
FULTON BOILER WORKS, INC. are named defendants, or upon a finding to the contrary,
modifying the stay to permit in extremis asbestos actions to proceed, or upon declining to modify
the stay, modifying this Court’s June 17, 2021 Order to provide express authority to the
Coordinating Justices of the New York State Asbestos Litigation Dockets to sever COLGATE-
PALMOLIVE COMPANY or FULTON BOILER WORKS, INC. or any other Bedivere insured
from any pertinent asbestos action, and granting all further relief deemed just and proper.
Dated: New York, New York
June 28, 2021 Respectfully submitted,
/s/ Seth A. Dymond
Seth A. Dymond
BELLUCK & FOX, LLP
546 Fifth Avenue, 5th Floor
New York, New York 10036
T: 212.681.1575
F: 212.681.1574
sdymond@belluckfox.com
Attorneys, in the limited capacity of
this application, for all in extremis
Asbestos Plaintiffs in New York State
court
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Preview
FILED: NEW YORK COUNTY CLERK 06/28/2021 12:02 PM INDEX NO. 451540/2021 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/28/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Index No. 451540/2021 In the matter of The Ancillary Receivership of (Hon. Verna L. Saunders) Mot. Seq. #002 BEDIVERE INSURANCE COMPANY AFFIRMATION IN SUPPORT OF MOTION TO MODIFY THE 180-DAY STAY TO ALLOW TO PROCEED IN EXTREMIS ASBESTOS ACTIONS IN WHICH ALLEGED BEDIVERE INSURED COLGATE- PALMOLIVE COMPANY OR FULTON BOILER WORKS, INC. IS A NAMED DEFENDANT Seth A. Dymond, an attorney duly admitted to practice before the Courts of the State of New York, affirms the following statements to be true under the penalties of perjury: 1. I am a partner of the law firm Belluck & Fox, LLP, attorneys for various terminally-ill asbestos plaintiffs in New York State courts. This motion is filed, in a limited capacity, on behalf of all in extremis asbestos plaintiffs with actions currently pending or to be commenced in New York State court against COLGATE-PALMOLIVE COMPANY (hereinafter “Colgate”) or FULTON BOILER WORKS, INC. (hereinafter “Fulton”), who both allege to be insureds of Bedivere Insurance Company (hereinafter “Bedivere”). 2. My affirmation is submitted in support of the motion of all pertinent in extremis asbestos plaintiffs’ to deem the stay inapplicable where Bedivere no longer has financial obligations for asbestos liabilities as to Colgate or Fulton due to reinsurance agreements, but to the extent otherwise, to modify the stay to permit such in extremis asbestos actions to proceed upon their accelerated trial preferences under the particular circumstances of these cases, which, 1 of 4 FILED: NEW YORK COUNTY CLERK 06/28/2021 12:02 PM INDEX NO. 451540/2021 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/28/2021 inter alia, will not impact Bedivere’s assets or the Ancillary Receiver’s liquidation organization process. Should this Court decline to modify the stay, the asbestos plaintiffs respectfully request that this Court modify its June 17, 2021 Order to expressly provide that the Coordinating Justices of the Asbestos Litigation Dockets of New York State have the authority to sever Colgate, Fulton, or any other insured of Bedivere from any pertinent asbestos action. 3. Annexed hereto as Exhibit A is a true and correct copy of an excerpt of the New York City Asbestos Litigation Docket (“NCYAL”) Case Management Order (“CMO”). 4. Annexed hereto as Exhibit B is a true and correct copy of decision of former NYCAL Coordinating Justice, Hon Peter H. Moulton, accompanying the CMO. 5. Annexed hereto as Exhibit C is a true and correct copy of the decision in Fulton Boiler Works, Inc. v. Am. Motorists Ins. Co., 828 F. Supp. 2d 481 (N.D.N.Y. 2011). 6. Annexed hereto as Exhibit D is a true and correct copy of the Amended Complaint filed in Fulton Boiler Works, Inc., supra. 7. Annexed hereto as Exhibit E is a true and correct copy of Colgate’s Supplemental Responses to Plaintiff’s First Set of Request for Product of Documents and Electronically-Stored Information in Nosse v ArvinMeritor, Inc., et al. (Cal. Super Ct, L.A. Cty, June 16, 2016). 8. Annexed hereto as Exhibit F is a true and correct copy of Colgate’s letter submitted to Hon. Adam Silvera, dated June 17, 2021. 9. Annexed hereto as Exhibit G is a true and correct copy of Fulton’s letter submitted to Hon. Adam Silvera, dated June 18, 2021. 10. Annexed hereto as Exhibit H is a true and correct copy of Judge Mendez’s decision in In re: The Ancillary Receivership of AMICO, AMMICO, & Lumbermens Mut. Cas. Co., Index No. 400532/13 (Sup Ct., N.Y. Cty, Sept 17, 2013). 2 of 4 FILED: NEW YORK COUNTY CLERK 06/28/2021 12:02 PM INDEX NO. 451540/2021 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/28/2021 11. Annexed hereto as Exhibit I is a true and correct copy of the asbestos plaintiff’s responsive letter submitted to Hon. Adam Silvera, dated June 18, 2021. 12. Annexed hereto as Exhibit J is a true and correct copy of Colgate’s second letter submitted to Hon. Adam Silvera, dated June 21, 2021. 13. Annexed hereto as Exhibit K is a true and correct copy of Fulton’s counsel’s email to Hon. Adam Silvera, dated June 21, 2021. 14. Annexed hereto as Exhibit L is a true and correct copy of email correspondences between Belluck & Fox and the Ancillary Receiver, dated June 16-17, 2021. 15. Annexed hereto as Exhibit M is a true and correct copy the article entitled Ruling in 37-year-old Pollution Dispute Precedes insurer’s Proposed Liquidation, located at https://www.spglobal.com/marketintelligence/en/news-insights/latest-news-headlines/ruling-in- 37-year-old-pollution-dispute-precedes-insurer-s-proposed-liquidation-63036921 16. Annexed hereto as Exhibit N is a true and correct copy of excerpts of OneBeacon’s retroactive reinsurance agreement with National Indemnity Company. 17. Annexed hereto as Exhibit O is a true and correct copy of the article entitled OneBeacon 2019 Financials – It’s Not Pretty, located at https://www.kcic.com/trending/feed/onebeacon-2019-financials-it-s-not-pretty/ 18. Annexed hereto as Exhibit P is a true and correct copy of in extremis plaintiff Tippin’s letter submitted to Hon. Adam Silvera, dated June 23, 2021. 19. Annexed hereto as Exhibit Q is a true and correct copy of the Affidavit of Corey Tippin, dated June 24, 2021. 20. Annexed hereto as Exhibit R is a true and correct copy of the email correspondence of Fulton’s Counsel to Hon. Erin P. Gall, dated June 1, 2021. 3 of 4 FILED: NEW YORK COUNTY CLERK 06/28/2021 12:02 PM INDEX NO. 451540/2021 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/28/2021 21. No prior request for this relief has been made before this Court or formally made before any other Court of concurrent jurisdiction. WHEREFORE, based upon the evidence set forth herein, and based upon the in extremis asbestos plaintiffs’ Memorandum of Law in Support of Motion to Modify the 180-day stay, the in extremis asbestos plaintiffs respectfully request that this Court enter an Order deeming the stay not applicable to asbestos actions in which COLGATE-PALMOLIVE COMPANY or FULTON BOILER WORKS, INC. are named defendants, or upon a finding to the contrary, modifying the stay to permit in extremis asbestos actions to proceed, or upon declining to modify the stay, modifying this Court’s June 17, 2021 Order to provide express authority to the Coordinating Justices of the New York State Asbestos Litigation Dockets to sever COLGATE- PALMOLIVE COMPANY or FULTON BOILER WORKS, INC. or any other Bedivere insured from any pertinent asbestos action, and granting all further relief deemed just and proper. Dated: New York, New York June 28, 2021 Respectfully submitted, /s/ Seth A. Dymond Seth A. Dymond BELLUCK & FOX, LLP 546 Fifth Avenue, 5th Floor New York, New York 10036 T: 212.681.1575 F: 212.681.1574 sdymond@belluckfox.com Attorneys, in the limited capacity of this application, for all in extremis Asbestos Plaintiffs in New York State court 4 of 4