Preview
FILED: NEW YORK COUNTY CLERK 07/21/2021 06:52 PM INDEX NO. 451540/2021
NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 07/21/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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In the matter of
Index No. 451540/2021
The Ancillary Receivership of
BEDIVERE INSURANCE COMPANY
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COLGATE-PALMOLIVE COMPANY’S
MEMORANDUM OF LAW IN RESPONSE TO
NYCAL PLAINTIFFS’ JUNE 28, 2021 ORDER TO SHOW CAUSE
Adam Budesheim, Esq. Erik C. DiMarco, Esq
MCCARTER & ENGLISH, LLP GORDON & REES
Worldwide Plaza SCULLY MANSUKHANI, LLP
825 Eighth Avenue, 31st Floor One Battery Park Plaza, 28th Floor
New York, New York 10019 New York, New York 10004
(212) 609-6800 (212) 453-0771
Attorneys for Colgate-Palmolive Attorneys for Colgate-Palmolive
Company in the Ancillary Proceeding Company in NYCAL
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PRELIMINARY STATEMENT
Colgate-Palmolive Company (“Colgate”) submits this memorandum of law in opposition
to Plaintiffs’ June 28, 2021 application to modify this Court’s June 16, 2021 injunction that
enjoined certain proceedings against insureds of Bedivere, including Colgate, for 180 days.
Colgate is an insured of Bedivere Insurance Company (“Bedivere”), and, over the course
of over three decades, Colgate purchased primary, umbrella, and excess liability policies through
various insurance companies to which Bedivere is the successor. In March 2021, Bedivere was
declared insolvent by the Pennsylvania Commonwealth Court and ordered into Liquidation. On
application of the Superintendent of Financial Services of the State of New York
(“Superintendent”), this Court issued an Order on June 16, 2021 appointing the Superintendent as
Ancillary Receiver of Bedivere for New York and enjoining all proceedings in cases involving
insureds of Bedivere for 180 days.
Colgate is an insured of Bedivere in nineteen (19) cases currently pending in the New York
City Asbestos Litigation (“NYCAL”).1 Thus, on June 17, 2021, Colgate notified the NYCAL
Coordinating Justice, the NYCAL Special Master, and the parties to the 19 cases of this Court’s
injunction of all proceedings. In response, Plaintiffs have taken issue with the application of this
Court’s injunction to Colgate, but their objections are all based on misstatements of fact and
misunderstandings of the law.
To be clear, Colgate takes no specific position on the Court’s continuation of the prior 180-
day injunction previously requested and secured by the Superintendent. But Colgate is compelled
to correct the record (especially with regard to its long-standing status as an “insured of Bedivere”),
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Plaintiffs’ memorandum incorrectly asserts that Colgate is “routinely sued in asbestos litigation.” In fact, Colgate
– which never manufactured a product intended to contain asbestos at all – is quite infrequently named in the
hundreds of NYCAL cases filed annually.
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and opposes any attempt to have this Court opine on complex factual and legal coverage issues in
a summary fashion based on a de minimis record.
Plaintiffs primarily argue that Bedivere’s prior reinsurance agreement with another carrier
(which expired in 2019) relieved Bedivere of its obligations to its insureds and rendered Bedivere
an insurer “in name only,” and that because Colgate also purchased additional insurance from
carriers other than Bedivere or its predecessors, this Court’s stay is not applicable to Colgate.
These arguments are factually erroneous and legally faulty, but if the Court determines they merit
further review, the coverage issues are sufficiently complex that they require development of a
factual record and fulsome legal argument as well as a proper review by the Superintendent – not
the type of summary disposition that Plaintiffs seek in their motion.
Finally, Colgate notes that multiple other NYCAL defendants also have advised the
NYCAL Coordinating Justice that they are insureds of Bedivere and subject to this Court’s June
16, 2021 Order, but oddly, Plaintiffs’ motion was directed exclusively towards Colgate and one
other entity, Fulton Boiler Works. Colgate’s submission speaks only to its own position and does
not purport to address any other NYCAL defendants.
FACTUAL BACKGROUND
I. Bedivere Insurance Company
Bedivere Insurance Company (“Bedivere”) is a Pennsylvania-based stock
property/casualty insurance company wholly owned by Trebuchet US Holdings, Inc., a Delaware
company. Bedivere was organized under the laws of Pennsylvania, with its principal office located
in Philadelphia. (See the Affidavit of Joan Riddell Deputy Chief Insurance Examiner, Property
Bureau, New York State Department of Financial Services, sworn to on April 27, 2021 (“Riddell
Aff.”), annexed hereto as Exhibit A, ¶ 2.) Bedivere became licensed to do business as an
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authorized foreign insurer in New York on or about December 14, 1956. (See Exhibit A, Riddell
Aff. ¶ 3.)
Bedivere is the successor to Lamorak Insurance Company, which was formerly known as
OneBeacon America Insurance Company (“OneBeacon”). OneBeacon is the successor to
Employer’s Liability Assurance Corporation, Employers Commercial Union Insurance Company,
and Commercial Union Insurance Company. (Annexed hereto as Exhibit B are copies of the
relevant portion of Colgate’s Answer and Counterclaims as well as OneBeacon’s Answers to
Colgate’s Counterclaims from a prior declaratory judgment coverage action (Index No.
651193/2011); see ¶ 56.)
In 2001, Bedivere’s predecessor entered into a reinsurance agreement with National
Indemnity Company (“NICO”), whereby NICO provided $2.5 billion of reinsurance and agreed
to perform all administrative services relating to the reinsurance coverage. See OneBeacon Am.
Ins. Co. v. Colgate-Palmolive Co., 123 A.D.3d 222, 225-26, 995 N.Y.S.2d 35 (1st Dep’t 2014). A
copy of this decision is annexed hereto as Exhibit C. In 2004, NICO contracted with its affiliate,
Resolute Management Inc., to have Resolute adjust the claims under the OneBeacon policies. Id.
at 226. The contract agreeing to the reinsurance terms was solely between NICO and OneBeacon
and Colgate was specifically found by the First Department not to be a party to the contract. Id. at
227. As Plaintiffs admitted in their brief, as of November 2019, the reinsurance agreement
between NICO and OneBeacon exhausted, see Plaintiffs’ Brief at 10 (citing Plaintiffs’ Exhibit O),
and thus Bedivere transitioned its claims handling activities from Resolute to Armour Group.
The Commonwealth Court of Pennsylvania subsequently declared Bedivere to be insolvent
and placed it into liquidation on March 11, 2021. On May 24, 2021, Linda Lacewell, Esq.,
Superintendent of Financial Services of New York, presented this Court with an Article 74 Petition
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to establish an ancillary receivership for Bedivere in New York and to enjoin all actions against
Bedivere insureds for 180 days. (Annexed hereto as Exhibit D is a copy Linda Lacewell’s Article
74 Petition) The 180-day injunction was sought to allow the Superintendent sufficient time to
review and assess the claims in litigation. Id. at 15.
On, or about, June 16, 2021, this Court appointed the Superintendent as ancillary receiver
in response to her Article 74 Petition and issued the Superintendent’s requested injunction, staying
all proceedings in New York against Bedivere insureds for 180 days:
All parties to actions, lawsuits, and special or other proceedings in the State of New
York against insureds of Bedivere or in which Bedivere is obligated to defend an
insured or provide a defense to a party pursuant to an insurance policy are enjoined
and restrained from obtaining any judgment or proceeding with any discovery,
court proceedings, or other litigation tasks or procedures, including, but not
limited to, conferences, trials, applications for judgment, or proceedings on
settlement or judgment, for a period of 180 days from the date this Order is signed.
Annexed hereto as Exhibit E hereto, Decision and Order of Judge Saunders dated June 16, 2021
(entered on June 17, 2021), p.2, ¶ 6 (emphasis added).
Following this Court’s Order, Colgate advised the Honorable Adam Silvera of the
applicability of the stay to the nineteen (19) cases pending in the NYCAL wherein Colgate is both
a named defendant and insured by Bedivere. (Annexed hereto as Exhibit F is a copy of Colgate’s
June 17th Letter to Justice Silvera.) On June 21, 2021, per Justice Silvera’s directives, Colgate
submitted a list of all relevant policies sold to Colgate by Bedivere’s predecessors (the “Bedivere
Policies”), pleadings from a prior litigation in which Bedivere’s predecessor, OneBeacon, admitted
it was the successor to entities that sold Colgate the Bedivere Policies and that OneBeacon had
assumed responsibility for the Bedivere Policies, the letters by which Colgate tendered the
nineteen (19) cases to Bedivere for coverage, and additional evidence of Bedivere’s corporate
history. (Annexed hereto as Exhibit G is a copy of Colgate’s June 21st Letter to Justice Silvera
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and exhibits)2
In Plaintiffs’ brief in support of the present application, Plaintiffs do not dispute that
Bedivere’s predecessors sold insurance to Colgate, and, in fact, concede that point. See Plaintiffs’
Brief at 12 (stating that “Bedivere is merely one among many insurers of Colgate”). Moreover,
the First Department issued a decision seven years ago in a dispute between Bedivere’s
predecessor, OneBeacon, and Colgate which, inter alia, acknowledged Colgate was insured for
asbestos claims by OneBeacon policies. See OneBeacon Am., 123 A.D.3d 222.
Although it is presently undisputed that Bedivere’s predecessors sold insurance policies to
Colgate that cover the underlying claims, and Colgate has provided this Court with the same
information provided to Justice Silvera, Colgate can provide any additional evidence this Court
requires.
II. The NYCAL Trial Groups
The NYCAL CMO outlines procedures for placement of cases in certain trial groups. An
In Extremis trial group involves cases brought by plaintiffs who are terminally ill from an asbestos-
related disease with a life expectancy of less than one year or who have a diagnosis of
mesothelioma. (See Exhibit A to Plaintiffs’ OTSC, p. 24.) To be included in an In Extremis trial cluster,
a plaintiff must be alive, have a pending lawsuit at the time of the application, and must
demonstrate a nexus between his exposure and New York City. Id. at 28-29; see also Stitt v
Burham Corp., 2013 N.Y. Misc. LEXIS 4049, *6, 2013 NY Slip Op 32142(U), 5 (N.Y. County
2013) (holding that a NYCAL plaintiff must demonstrate a nexus between his exposure and New
York City in order for his case to be placed in an In-Extremis cluster). However, just because a
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Colgate’s letter to Justice Silvera was submitted confidentially for in camera review to protect attorney work
product contained in the tender letters attached as Exhibit 3 to the letter. For purposes of this submission, the
attorney work product has been redacted from the tender letters. Upon the request of this Court, Colgate can
provided unredacted copies of the letters to this Court for in camera review.
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case is currently in an In Extremis trial group does not mean the injured plaintiff is living. Once a
case is placed on the In Extremis cluster, it is not removed from the trial group under the current
NYCAL CMO even if the terminally ill plaintiff dies, though NYCAL practice is that such cases
will be set for trial on a separate later scheduling than living cases.
Of the nineteen (19) cases originally identified by Colgate, five (5) of the cases are not in
an In Extremis trial group at all. Plaintiffs in eight (8) of the In Extremis cases are already deceased.
In short, only six (6) of the 19 NYCAL cases giving rise to the instant application involve a living
plaintiff in an In Extremis cluster. (A copy of the case list identifying the deceased/living status
of the plaintiff and trial group placement is annexed as Exhibit H.) In all six (6) cases except one,
the terminally ill plaintiffs have been deposed and their testimony was preserved.3
ARGUMENT
I. This Court Should Recognize Colgate’s Status As an “Insured of Bedivere,” But It
Should Not Grant Plaintiffs’ Request to Make Any Complex Coverage
Determinations Based on the De Minimis Factual Record Before the Court.
While Colgate defers to the Superintendent on whether the breadth and duration of this
Court’s prior injunction should be modified, Colgate opposes Plaintiffs’ arguments that the stay
ordered by this Court does not, or should not, apply to Colgate. Plaintiffs rely on a de minimis
factual record and, as a result, assert multiple factual allegations in support of their argument that
are simply not true.
Although there is ample evidence of Colgate’s status as a Bedivere insured and Plaintiffs
do not contest this point, Colgate objects to Plaintiffs’ motion to the extent it asks this Court to
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One in extremis case, Rentko, was scheduled for deposition in March but was adjourned by Plaintiff. A stipulation
was previously entered in the Tippin case which lifted the injunction to allow Mr. Tippin’s deposition. See Exhibit
I. Colgate and the NYLB (on behalf of the Superintendent) have conferred with counsel for the Rentko plaintiff and
offered to enter into a similar stipulation as done in the Tippin case. To date, counsel the Rentko plaintiff has not
done so despite noticing this deposition to proceed on July 27, 2021.
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decide, in a summary fashion, any complex factual and legal issues relating to Colgate’s insurance
coverage on a minimal factual record. The Superintendent, who is provided the underlying
litigation files by the Pennsylvania Liquidator and is familiar with Bedivere’s insurance
relationship with policyholders such as Colgate, is best positioned to address any lingering factual
and legal issues surrounding the extent to which a particular liability matter is covered under the
Bedivere policies.
The Superintendent, as ancillary receiver, is tasked with pursuing and recovering certain
assets of Bedivere in New York, see N.Y. Ins. Law 7410(b), but is also obligated to pay for the
defense and settlement or judgment of allowed claims on behalf of New York insureds of an
insolvent insurer, see N.Y. Ins. Law §§ 7602(g), 7610(a). Carrying out these duties requires the
Superintendent to review, analyze, and evaluate the obligations of the insolvent insurer in light of
the applicable contractual terms, facts and law. The voluminous materials necessary to conduct
this review and analysis are provided and otherwise available to the Superintendent by the
Pennsylvania Liquidator:
17. After Bedivere is placed into ancillary receivership, the Pennsylvania
Liquidator will transfer the books and records of the company relating to certain
New York claims under policies written by Bedivere, including litigation
files, to the Ancillary Receiver and Administrator for further handling.
Because the files and records of an insolvent insurer often require time to review
and assess, a temporary stay is necessary to ensure that claims are
appropriately handled and that there is no prejudice to the company or its
policyholders during the transition to ancillary receivership.
See Exhibit D (Article 74 Petition), ¶ 17. The Superintendent affirmed in her Article 74 Petition
to this Court that the 180-day stay is necessary for carrying out her duties as the ancillary receiver
of Bedivere:
18. The 180-Day Injunction and 90-Day Injunction will allow the Ancillary
Receiver and Administrator to: (i) review the New York claims and litigations; (ii)
coordinate with third- party administrators for handling claims; (iii) assign claims
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examiners; (iv) review settlement negotiations, if any; (v) analyze the legal issues;
(vi) set reserves; (vii) assign or retain counsel; and (viii) prepare to litigate the
matters, if necessary, upon the expiration of the 180-Day Injunction and 90-Day
Injunction.
See Exhibit D (Article 74 Petition), ¶ 18.
It is thus unrealistic, and highly prejudicial to Colgate, the Superintendent, and the
Bedivere insolvent estate for Plaintiffs to ask this Court to render a decision, based on only a few
documents, on Bedivere’s coverage obligations to Colgate or that the stay somehow should not
apply to Colgate, when the Superintendent, who is in possession of the relevant books and records,
has requested 180 days to make such determinations. For this Court to rule on these types of
coverage issues on the facts before it would interfere with the Superintendent’s statutory
obligations and deprive Colgate of the protections afforded to the insured’s of insolvent insurers.
See In re Transit Cas. Co., 79 N.Y.2d 13, 19, 588 N.E.2d 38, 41 (1992) (noting that the insurance
“statutes providing for the liquidation of insolvent insurance companies are designed to protect
creditors, policyholders and the general public by providing a comprehensive and efficient means
for collecting the insolvent's assets and equitably paying the claims of creditors”).
II. Past Reinsurance Agreements, Which Have Expired, Have No Bearing on Whether
Colgate Is an Insured of Bedivere
Plaintiffs’ unique assertion that certain reinsurance agreements render Bedivere an insurer
of Colgate “in name only” is wrong both factually and legally. Factually, Plaintiffs concede that
the reinsurance agreement that previously existed between Bedivere’s predecessor, OneBeacon,
and National Indemnity Company (“NICO”) exhausted as of late 2019 – more than a year before
Bedivere was declared insolvent and ordered liquidated – and there is no evidence in the record or
the public domain that any “contractual assumptions” passed to Armour Group. Legally, even if
the prior reinsurance agreement had not exhausted, Colgate was not a party to that agreement, and
Bedivere remains Colgate’s direct primary, umbrella, and excess liability insurer.
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A. NICO and Resolute Did Not Transfer Reinsurance Obligations to Armour
Colgate does not dispute that OneBeacon entered into a $2.5 billion reinsurance agreement
in 2001, or that NICO agreed to handle all administrative claims for OneBeacon and contracted
with Resolute to handle the claims in 2004. These facts are set forth in the First Department’s
decision in OneBeacon America Insurance Co. v. Colgate-Palmolive Co., 123 A.D.3d 222, 225-
26, 995 N.Y.S.2d 35 (1st Dept. 2014) (Exhibit C), on which Plaintiffs rely.
Colgate, however, disputes that there is any evidence that NICO transferred any
“contractual assumptions” under the reinsurance agreement to Armour. The First Department
made clear that NICO did not assume any obligations under the OneBeacon policies when it
entered the reinsurance agreement, see id. at 227, and there were no “contractual assumptions” to
transfer. Moreover, as Plaintiff’s concede, the reinsurance contract exhausted in 2019. See
Plaintiffs’ Brief at 10. With the exhaustion of the contract, NICO’s obligations terminated,
including its obligations to handle the administration of the claims. Thus, NICO has no obligations
to Bedivere under its prior reinsurance contract, and Plaintiffs’ argument that the now-exhausted
reinsurance contract somehow presently makes Bedivere an insurer “in name only” is factually
baseless.
Plaintiffs have provided no evidence that there was any transfer of reinsurance obligations
from NICO to Armour. To support this proposition, Plaintiffs cite to an article about Bedivere’s
financial condition, but the article does not support Plaintiffs’ assertion. Rather, the article states
only that “claims handling responsibilities would shift from Resolute to the new owners, Armour
Group.” See Plaintiffs’ Brief at 10, citing Plaintiffs’ Exhibit O (emphasis added). Although
Plaintiffs’ argument appears to conflate NICO and Resolute as if both were reinsurers, the very
cases on which Plaintiffs rely make clear that Resolute served as a third party administrator, not a
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reinsurer. See OneBeacon Am., 123 A.D.3d at 226-27; Konstantin v. Certain Underwriters at
Lloyd’s London, No. 652897/2013, 2018 WL 746154, at*2-4 (N.Y. Sup. Ct. Feb. 7, 2018).
Bedivere transferred from Resolute to Armour the responsibility for handling claims; the parties
did not transfer any reinsurance rights or obligations. And, as noted above, the reinsurance contract
between Bedivere and NICO was exhausted so there were no reinsurance obligations remaining
that could have even been subject to transfer.
B. Bedivere’s Reinsurance Does Not Impact Colgate’s Status as a “Bedivere
Insured”
As a legal matter, even if the reinsurance agreement continued in force, it did not give
Colgate any rights under the agreement against NICO or any reinsurer. In fact, the First
Department has held that Colgate lacked standing to bring a claim against NICO for breach of the
reinsurance contract because it was “a contract only between NICO and [Bedivere’s predecessor]
OneBeacon” that was “separate and distinct from the underlying [insurance] policies,” and a
reinsurance contract to which Colgate was not a party. OneBeacon Am., 123 A.D.3d at 227. The
First Department confirmed that “OneBeacon remains fully and solely responsible for the
performance of its obligations under the Policies even if NICO and Resolute are performing those
obligations on its behalf.” Id. Thus, even if the reinsurance agreement had not exhausted, Colgate
remains an insured of Bedivere, and Bedivere remains liable to Colgate under the insurance
policies. In short, for purposes of evaluating Colgate’s status as an insured of Bedivere, the
reinsurance agreement between NICO and OneBeacon is irrelevant.
III. Plaintiffs’ Claim That Colgate Has Other Insurance Is Irrelevant
Plaintiffs’ assertion that, in addition to the Bedivere policies, Colgate has insurance policies
issued by other insurers is entirely irrelevant to whether Colgate is an insured under Bedivere
policies. Bedivere’s contractual obligations exist under its policies regardless of whether another
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insurer might also have issued coverage to Colgate. The cases relied upon by Plaintiffs involve
questions of a duty to defend by primary insurers and contribution rights among those insurers.
See Plaintiffs’ Brief at 19 (citing Cont’l Cas. Co. v. Rapid-Am. Corp., 80 N.Y.2d 640 (1993) and
Travelers Cas. & Surety Co. v. Alfa Laval Inc., 100 A.D.3d 451 (1st Dep’t 2012)). The complexity
of the issues in these cases and the analysis of various insurance contract terms in connection with
the allegations of the underlying claims underscores why coverage determinations should not be
made in a summary fashion before this tribunal – at least without affording the Superintendent the
opportunity to review and evaluate Bedivere’s coverage obligations.
Moreover, it is wholly irrelevant that Colgate is a viable entity and also purchased liability
coverage from other insurers over the years. There is no suggestion in any of the statutes that the
rules governing liquidations or New York ancillary proceedings are meant to apply only to those
insureds that are not able to mount their own defense or are not viable entities. If this Court makes
a determination regarding either the application of Bedivere coverage to any NYCAL case or
whether any insured can seek contribution from Bedivere later, it will preemptively undermine the
authority of the Superintendent to carry out her designated duties and cause undue prejudice to
Bedivere, as well as Colgate as a policyholder, with possible risks of unnecessary litigation in the
future.
Finally, Plaintiffs’ argument that Bedivere insureds can obtain a defense from the
Pennsylvania Property and Casualty Insurance Guaranty Association is entirely misplaced. There
has been no determination whether and to what extent the Pennsylvania Property and Casualty
Insurance Guaranty Association will handle the claims against Colgate. Plaintiffs’ brief contains
no analysis at all whether the claims against Colgate pending in New York are even covered by
the Pennsylvania guaranty association, and does not even cite to the definition of what kinds of
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claims are covered by the guaranty association. See 40 P.S. § 991.1802 (defining “covered claim”
as claims for which “the claimant or insured is a resident of this Commonwealth at the time of the
insured event”). And, notably, the Superintendent’s Article 74 Petition to this Court made clear
that the Pennsylvania Liquidator is sending the Superintendent in New York the underlying files
for the Colgate cases pending in New York for handling in the first instance. See Exhibit D
(Article 74 Petition), ¶ 17.
IV. Severance Should Only be Permitted on Motion and for Cause
Colgate is not opposed to this Court allowing Plaintiffs to petition their respective NYCAL
trial courts to have Colgate severed from their cases, but only upon proper motion and for proper
cause. Plaintiffs’ broad request that this Court declare that trial courts be allowed to sever insureds
of Bedivere at their discretion – without motion or consideration of the merits – would be highly
prejudicial to Colgate, as well as the Bedivere estate, and should be denied.
It is well-settled law in New York that courts should exercise caution when considering an
application to sever “so as to avoid multiplicity and circuity of litigation and to achieve the
desirable goal of determining both primary and ultimate liability in a single proceeding.” Karama
Supermarket, Inc. v. Frawley Plaza Assocs., 200 A.D.2d 355, 356, 606 N.Y.S.2d 177 (1st Dept.
1994) (citing Cohen Agency v Perlman Agency, 51 NY2d 358, 365 (1980)). Because it is
preferable for related actions to be tried together, to avoid wasting judicial resources or risking
inconsistent verdicts, Rothstein v. Milleridge Inn, Inc., 251 A.D.2d 154, 155, 674 N.Y.S.2d 346
(1st Dept. 1998), courts should deny applications to sever where the factual and legal questions
involved in the main action and the action requested to be severed are virtually identical. Fries v.
Sid Tool Co., 90 A.D.2d 512, 512, 455 N.Y.S.2d 25 (2nd Dept. 1982).
To be clear, not all of Colgate’s NYCAL cases are appropriate for severing Colgate from
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the remainder of the case. In some circumstances, Colgate’s defenses may be so intertwined with
the facts of a given matter that allowing the matter to proceed without Colgate could risk great
prejudice to Colgate and Bedivere. For example, severance could harm Colgate by depriving it of
the opportunity to preserve and lodge objections if an adverse finding or determination is made
against its interests in a separate action. In cases that are still in the early stages, any further
discovery or judicial determinations pertaining to fact and expert witnesses, co-defendants or non-
parties would need to be duplicated and, if such evidence becomes unavailable at the time the
severed action proceeds, Colgate could be deprived of its ability to preserve its objections and be
able to prepare meaningfully its full defenses. Each petition for severance should be judged on its
own merits upon proper motion practice before the trial court handling the underlying claim.
VI. Alternative Modifications For Consideration
As demonstrated herein, the NYLB and Colgate have engaged in efforts to balance the
rights of the NYCAL plaintiffs in preserving the testimony of terminally ill plaintiffs while
preserving the interests of the Bedivere estate and its insured. Colgate recognizes that these
piecemeal approaches to stipulations place significant burdens on the parties, this Court and the
NYLB, and that the NYLB is better served focusing on processing and assessing the potentially
thousands of claims impacted by the Bedivere insolvency. Accordingly, subject to the
Superintendent’s approval, Colgate respectfully suggests that the Court may consider
implementing modifications to this Court’s June 16, 2021 Order as to the enjoined asbestos
litigation matters in the State of New York, to permit, upon written stipulation from the NYLB on
a case by case basis:
1) terminally ill plaintiffs to prepare and serve responses to standard interrogatories
and requests for production of documents in accordance with applicable Case Management Orders;
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2) discovery and/or de bene esse depositions of terminally ill plaintiffs to proceed to
preserve their testimony;
3) the dismissal of any defendant by stipulation or other mechanisms permitted under
operable Case Management Order;
4) Plaintiffs to enter into settlement with any non-Bedivere insured in any matter, and
further to enter into settlement with any Bedivere insured upon approval of the NYLB;
5) Plaintiffs in any living In Extremis case to file a motion to sever an insured of
Bedivere to the trial court on notice to the NYLB or alternatively to enter into a Stipulation with
the Bedivere insured for such severance with the approval of the NYLB; and
6) Plaintiffs to form and substitute estates in cases in which the terminally ill plaintiff
passes away during the period of this injunction.
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CONCLUSION
For the reasons and the arguments set forth herein, Colgate respectfully states that it is
indisputably an insured of Bedivere, and thus, Plaintiffs’ challenge to the application of this
Court’s injunction to Colgate (and their attempt to effectively seek a summary declaration
regarding Bedivere’s coverage obligations to Colgate) should be denied by this Court. Colgate
further respectfully requests that if this Court modifies the order to allow severance of Colgate
from the underlying litigations that such severance be permitted only on motions and for cause
before the tribunal(s) in which such matters are pending.
Dated: New York, New York
July 21, 2021
_________________________________ _____________________________
Adam Budesheim Erik C. DiMarco
MCCARTER & ENGLISH, LLP GORDON & REES SCULLY &
Worldwide Plaza MANSUKHANI, LLP
825 Eighth Avenue, 31st Floor One Battery Park Plaza, 28th Floor
New York, New York 10019 New York, NY 10004
(212) 609-6800 (212) 453-0771
Attorneys for Colgate-Palmolive Attorneys for Colgate-Palmolive
Company in the Ancillary Proceeding Company in NYCAL
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FILED: NEW YORK COUNTY CLERK 07/21/2021 06:52 PM INDEX NO. 451540/2021 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 07/21/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------------------X In the matter of Index No. 451540/2021 The Ancillary Receivership of BEDIVERE INSURANCE COMPANY -----------------------------------------------------------------------X COLGATE-PALMOLIVE COMPANY’S MEMORANDUM OF LAW IN RESPONSE TO NYCAL PLAINTIFFS’ JUNE 28, 2021 ORDER TO SHOW CAUSE Adam Budesheim, Esq. Erik C. DiMarco, Esq MCCARTER & ENGLISH, LLP GORDON & REES Worldwide Plaza SCULLY MANSUKHANI, LLP 825 Eighth Avenue, 31st Floor One Battery Park Plaza, 28th Floor New York, New York 10019 New York, New York 10004 (212) 609-6800 (212) 453-0771 Attorneys for Colgate-Palmolive Attorneys for Colgate-Palmolive Company in the Ancillary Proceeding Company in NYCAL 1 of 16 FILED: NEW YORK COUNTY CLERK 07/21/2021 06:52 PM INDEX NO. 451540/2021 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 07/21/2021 PRELIMINARY STATEMENT Colgate-Palmolive Company (“Colgate”) submits this memorandum of law in opposition to Plaintiffs’ June 28, 2021 application to modify this Court’s June 16, 2021 injunction that enjoined certain proceedings against insureds of Bedivere, including Colgate, for 180 days. Colgate is an insured of Bedivere Insurance Company (“Bedivere”), and, over the course of over three decades, Colgate purchased primary, umbrella, and excess liability policies through various insurance companies to which Bedivere is the successor. In March 2021, Bedivere was declared insolvent by the Pennsylvania Commonwealth Court and ordered into Liquidation. On application of the Superintendent of Financial Services of the State of New York (“Superintendent”), this Court issued an Order on June 16, 2021 appointing the Superintendent as Ancillary Receiver of Bedivere for New York and enjoining all proceedings in cases involving insureds of Bedivere for 180 days. Colgate is an insured of Bedivere in nineteen (19) cases currently pending in the New York City Asbestos Litigation (“NYCAL”).1 Thus, on June 17, 2021, Colgate notified the NYCAL Coordinating Justice, the NYCAL Special Master, and the parties to the 19 cases of this Court’s injunction of all proceedings. In response, Plaintiffs have taken issue with the application of this Court’s injunction to Colgate, but their objections are all based on misstatements of fact and misunderstandings of the law. To be clear, Colgate takes no specific position on the Court’s continuation of the prior 180- day injunction previously requested and secured by the Superintendent. But Colgate is compelled to correct the record (especially with regard to its long-standing status as an “insured of Bedivere”), 1 Plaintiffs’ memorandum incorrectly asserts that Colgate is “routinely sued in asbestos litigation.” In fact, Colgate – which never manufactured a product intended to contain asbestos at all – is quite infrequently named in the hundreds of NYCAL cases filed annually. 2 of 16 FILED: NEW YORK COUNTY CLERK 07/21/2021 06:52 PM INDEX NO. 451540/2021 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 07/21/2021 and opposes any attempt to have this Court opine on complex factual and legal coverage issues in a summary fashion based on a de minimis record. Plaintiffs primarily argue that Bedivere’s prior reinsurance agreement with another carrier (which expired in 2019) relieved Bedivere of its obligations to its insureds and rendered Bedivere an insurer “in name only,” and that because Colgate also purchased additional insurance from carriers other than Bedivere or its predecessors, this Court’s stay is not applicable to Colgate. These arguments are factually erroneous and legally faulty, but if the Court determines they merit further review, the coverage issues are sufficiently complex that they require development of a factual record and fulsome legal argument as well as a proper review by the Superintendent – not the type of summary disposition that Plaintiffs seek in their motion. Finally, Colgate notes that multiple other NYCAL defendants also have advised the NYCAL Coordinating Justice that they are insureds of Bedivere and subject to this Court’s June 16, 2021 Order, but oddly, Plaintiffs’ motion was directed exclusively towards Colgate and one other entity, Fulton Boiler Works. Colgate’s submission speaks only to its own position and does not purport to address any other NYCAL defendants. FACTUAL BACKGROUND I. Bedivere Insurance Company Bedivere Insurance Company (“Bedivere”) is a Pennsylvania-based stock property/casualty insurance company wholly owned by Trebuchet US Holdings, Inc., a Delaware company. Bedivere was organized under the laws of Pennsylvania, with its principal office located in Philadelphia. (See the Affidavit of Joan Riddell Deputy Chief Insurance Examiner, Property Bureau, New York State Department of Financial Services, sworn to on April 27, 2021 (“Riddell Aff.”), annexed hereto as Exhibit A, ¶ 2.) Bedivere became licensed to do business as an 2 3 of 16 FILED: NEW YORK COUNTY CLERK 07/21/2021 06:52 PM INDEX NO. 451540/2021 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 07/21/2021 authorized foreign insurer in New York on or about December 14, 1956. (See Exhibit A, Riddell Aff. ¶ 3.) Bedivere is the successor to Lamorak Insurance Company, which was formerly known as OneBeacon America Insurance Company (“OneBeacon”). OneBeacon is the successor to Employer’s Liability Assurance Corporation, Employers Commercial Union Insurance Company, and Commercial Union Insurance Company. (Annexed hereto as Exhibit B are copies of the relevant portion of Colgate’s Answer and Counterclaims as well as OneBeacon’s Answers to Colgate’s Counterclaims from a prior declaratory judgment coverage action (Index No. 651193/2011); see ¶ 56.) In 2001, Bedivere’s predecessor entered into a reinsurance agreement with National Indemnity Company (“NICO”), whereby NICO provided $2.5 billion of reinsurance and agreed to perform all administrative services relating to the reinsurance coverage. See OneBeacon Am. Ins. Co. v. Colgate-Palmolive Co., 123 A.D.3d 222, 225-26, 995 N.Y.S.2d 35 (1st Dep’t 2014). A copy of this decision is annexed hereto as Exhibit C. In 2004, NICO contracted with its affiliate, Resolute Management Inc., to have Resolute adjust the claims under the OneBeacon policies. Id. at 226. The contract agreeing to the reinsurance terms was solely between NICO and OneBeacon and Colgate was specifically found by the First Department not to be a party to the contract. Id. at 227. As Plaintiffs admitted in their brief, as of November 2019, the reinsurance agreement between NICO and OneBeacon exhausted, see Plaintiffs’ Brief at 10 (citing Plaintiffs’ Exhibit O), and thus Bedivere transitioned its claims handling activities from Resolute to Armour Group. The Commonwealth Court of Pennsylvania subsequently declared Bedivere to be insolvent and placed it into liquidation on March 11, 2021. On May 24, 2021, Linda Lacewell, Esq., Superintendent of Financial Services of New York, presented this Court with an Article 74 Petition 3 4 of 16 FILED: NEW YORK COUNTY CLERK 07/21/2021 06:52 PM INDEX NO. 451540/2021 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 07/21/2021 to establish an ancillary receivership for Bedivere in New York and to enjoin all actions against Bedivere insureds for 180 days. (Annexed hereto as Exhibit D is a copy Linda Lacewell’s Article 74 Petition) The 180-day injunction was sought to allow the Superintendent sufficient time to review and assess the claims in litigation. Id. at 15. On, or about, June 16, 2021, this Court appointed the Superintendent as ancillary receiver in response to her Article 74 Petition and issued the Superintendent’s requested injunction, staying all proceedings in New York against Bedivere insureds for 180 days: All parties to actions, lawsuits, and special or other proceedings in the State of New York against insureds of Bedivere or in which Bedivere is obligated to defend an insured or provide a defense to a party pursuant to an insurance policy are enjoined and restrained from obtaining any judgment or proceeding with any discovery, court proceedings, or other litigation tasks or procedures, including, but not limited to, conferences, trials, applications for judgment, or proceedings on settlement or judgment, for a period of 180 days from the date this Order is signed. Annexed hereto as Exhibit E hereto, Decision and Order of Judge Saunders dated June 16, 2021 (entered on June 17, 2021), p.2, ¶ 6 (emphasis added). Following this Court’s Order, Colgate advised the Honorable Adam Silvera of the applicability of the stay to the nineteen (19) cases pending in the NYCAL wherein Colgate is both a named defendant and insured by Bedivere. (Annexed hereto as Exhibit F is a copy of Colgate’s June 17th Letter to Justice Silvera.) On June 21, 2021, per Justice Silvera’s directives, Colgate submitted a list of all relevant policies sold to Colgate by Bedivere’s predecessors (the “Bedivere Policies”), pleadings from a prior litigation in which Bedivere’s predecessor, OneBeacon, admitted it was the successor to entities that sold Colgate the Bedivere Policies and that OneBeacon had assumed responsibility for the Bedivere Policies, the letters by which Colgate tendered the nineteen (19) cases to Bedivere for coverage, and additional evidence of Bedivere’s corporate history. (Annexed hereto as Exhibit G is a copy of Colgate’s June 21st Letter to Justice Silvera 4 5 of 16 FILED: NEW YORK COUNTY CLERK 07/21/2021 06:52 PM INDEX NO. 451540/2021 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 07/21/2021 and exhibits)2 In Plaintiffs’ brief in support of the present application, Plaintiffs do not dispute that Bedivere’s predecessors sold insurance to Colgate, and, in fact, concede that point. See Plaintiffs’ Brief at 12 (stating that “Bedivere is merely one among many insurers of Colgate”). Moreover, the First Department issued a decision seven years ago in a dispute between Bedivere’s predecessor, OneBeacon, and Colgate which, inter alia, acknowledged Colgate was insured for asbestos claims by OneBeacon policies. See OneBeacon Am., 123 A.D.3d 222. Although it is presently undisputed that Bedivere’s predecessors sold insurance policies to Colgate that cover the underlying claims, and Colgate has provided this Court with the same information provided to Justice Silvera, Colgate can provide any additional evidence this Court requires. II. The NYCAL Trial Groups The NYCAL CMO outlines procedures for placement of cases in certain trial groups. An In Extremis trial group involves cases brought by plaintiffs who are terminally ill from an asbestos- related disease with a life expectancy of less than one year or who have a diagnosis of mesothelioma. (See Exhibit A to Plaintiffs’ OTSC, p. 24.) To be included in an In Extremis trial cluster, a plaintiff must be alive, have a pending lawsuit at the time of the application, and must demonstrate a nexus between his exposure and New York City. Id. at 28-29; see also Stitt v Burham Corp., 2013 N.Y. Misc. LEXIS 4049, *6, 2013 NY Slip Op 32142(U), 5 (N.Y. County 2013) (holding that a NYCAL plaintiff must demonstrate a nexus between his exposure and New York City in order for his case to be placed in an In-Extremis cluster). However, just because a 2 Colgate’s letter to Justice Silvera was submitted confidentially for in camera review to protect attorney work product contained in the tender letters attached as Exhibit 3 to the letter. For purposes of this submission, the attorney work product has been redacted from the tender letters. Upon the request of this Court, Colgate can provided unredacted copies of the letters to this Court for in camera review. 5 6 of 16 FILED: NEW YORK COUNTY CLERK 07/21/2021 06:52 PM INDEX NO. 451540/2021 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 07/21/2021 case is currently in an In Extremis trial group does not mean the injured plaintiff is living. Once a case is placed on the In Extremis cluster, it is not removed from the trial group under the current NYCAL CMO even if the terminally ill plaintiff dies, though NYCAL practice is that such cases will be set for trial on a separate later scheduling than living cases. Of the nineteen (19) cases originally identified by Colgate, five (5) of the cases are not in an In Extremis trial group at all. Plaintiffs in eight (8) of the In Extremis cases are already deceased. In short, only six (6) of the 19 NYCAL cases giving rise to the instant application involve a living plaintiff in an In Extremis cluster. (A copy of the case list identifying the deceased/living status of the plaintiff and trial group placement is annexed as Exhibit H.) In all six (6) cases except one, the terminally ill plaintiffs have been deposed and their testimony was preserved.3 ARGUMENT I. This Court Should Recognize Colgate’s Status As an “Insured of Bedivere,” But It Should Not Grant Plaintiffs’ Request to Make Any Complex Coverage Determinations Based on the De Minimis Factual Record Before the Court. While Colgate defers to the Superintendent on whether the breadth and duration of this Court’s prior injunction should be modified, Colgate opposes Plaintiffs’ arguments that the stay ordered by this Court does not, or should not, apply to Colgate. Plaintiffs rely on a de minimis factual record and, as a result, assert multiple factual allegations in support of their argument that are simply not true. Although there is ample evidence of Colgate’s status as a Bedivere insured and Plaintiffs do not contest this point, Colgate objects to Plaintiffs’ motion to the extent it asks this Court to 3 One in extremis case, Rentko, was scheduled for deposition in March but was adjourned by Plaintiff. A stipulation was previously entered in the Tippin case which lifted the injunction to allow Mr. Tippin’s deposition. See Exhibit I. Colgate and the NYLB (on behalf of the Superintendent) have conferred with counsel for the Rentko plaintiff and offered to enter into a similar stipulation as done in the Tippin case. To date, counsel the Rentko plaintiff has not done so despite noticing this deposition to proceed on July 27, 2021. 6 7 of 16 FILED: NEW YORK COUNTY CLERK 07/21/2021 06:52 PM INDEX NO. 451540/2021 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 07/21/2021 decide, in a summary fashion, any complex factual and legal issues relating to Colgate’s insurance coverage on a minimal factual record. The Superintendent, who is provided the underlying litigation files by the Pennsylvania Liquidator and is familiar with Bedivere’s insurance relationship with policyholders such as Colgate, is best positioned to address any lingering factual and legal issues surrounding the extent to which a particular liability matter is covered under the Bedivere policies. The Superintendent, as ancillary receiver, is tasked with pursuing and recovering certain assets of Bedivere in New York, see N.Y. Ins. Law 7410(b), but is also obligated to pay for the defense and settlement or judgment of allowed claims on behalf of New York insureds of an insolvent insurer, see N.Y. Ins. Law §§ 7602(g), 7610(a). Carrying out these duties requires the Superintendent to review, analyze, and evaluate the obligations of the insolvent insurer in light of the applicable contractual terms, facts and law. The voluminous materials necessary to conduct this review and analysis are provided and otherwise available to the Superintendent by the Pennsylvania Liquidator: 17. After Bedivere is placed into ancillary receivership, the Pennsylvania Liquidator will transfer the books and records of the company relating to certain New York claims under policies written by Bedivere, including litigation files, to the Ancillary Receiver and Administrator for further handling. Because the files and records of an insolvent insurer often require time to review and assess, a temporary stay is necessary to ensure that claims are appropriately handled and that there is no prejudice to the company or its policyholders during the transition to ancillary receivership. See Exhibit D (Article 74 Petition), ¶ 17. The Superintendent affirmed in her Article 74 Petition to this Court that the 180-day stay is necessary for carrying out her duties as the ancillary receiver of Bedivere: 18. The 180-Day Injunction and 90-Day Injunction will allow the Ancillary Receiver and Administrator to: (i) review the New York claims and litigations; (ii) coordinate with third- party administrators for handling claims; (iii) assign claims 7 8 of 16 FILED: NEW YORK COUNTY CLERK 07/21/2021 06:52 PM INDEX NO. 451540/2021 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 07/21/2021 examiners; (iv) review settlement negotiations, if any; (v) analyze the legal issues; (vi) set reserves; (vii) assign or retain counsel; and (viii) prepare to litigate the matters, if necessary, upon the expiration of the 180-Day Injunction and 90-Day Injunction. See Exhibit D (Article 74 Petition), ¶ 18. It is thus unrealistic, and highly prejudicial to Colgate, the Superintendent, and the Bedivere insolvent estate for Plaintiffs to ask this Court to render a decision, based on only a few documents, on Bedivere’s coverage obligations to Colgate or that the stay somehow should not apply to Colgate, when the Superintendent, who is in possession of the relevant books and records, has requested 180 days to make such determinations. For this Court to rule on these types of coverage issues on the facts before it would interfere with the Superintendent’s statutory obligations and deprive Colgate of the protections afforded to the insured’s of insolvent insurers. See In re Transit Cas. Co., 79 N.Y.2d 13, 19, 588 N.E.2d 38, 41 (1992) (noting that the insurance “statutes providing for the liquidation of insolvent insurance companies are designed to protect creditors, policyholders and the general public by providing a comprehensive and efficient means for collecting the insolvent's assets and equitably paying the claims of creditors”). II. Past Reinsurance Agreements, Which Have Expired, Have No Bearing on Whether Colgate Is an Insured of Bedivere Plaintiffs’ unique assertion that certain reinsurance agreements render Bedivere an insurer of Colgate “in name only” is wrong both factually and legally. Factually, Plaintiffs concede that the reinsurance agreement that previously existed between Bedivere’s predecessor, OneBeacon, and National Indemnity Company (“NICO”) exhausted as of late 2019 – more than a year before Bedivere was declared insolvent and ordered liquidated – and there is no evidence in the record or the public domain that any “contractual assumptions” passed to Armour Group. Legally, even if the prior reinsurance agreement had not exhausted, Colgate was not a party to that agreement, and Bedivere remains Colgate’s direct primary, umbrella, and excess liability insurer. 8 9 of 16 FILED: NEW YORK COUNTY CLERK 07/21/2021 06:52 PM INDEX NO. 451540/2021 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 07/21/2021 A. NICO and Resolute Did Not Transfer Reinsurance Obligations to Armour Colgate does not dispute that OneBeacon entered into a $2.5 billion reinsurance agreement in 2001, or that NICO agreed to handle all administrative claims for OneBeacon and contracted with Resolute to handle the claims in 2004. These facts are set forth in the First Department’s decision in OneBeacon America Insurance Co. v. Colgate-Palmolive Co., 123 A.D.3d 222, 225- 26, 995 N.Y.S.2d 35 (1st Dept. 2014) (Exhibit C), on which Plaintiffs rely. Colgate, however, disputes that there is any evidence that NICO transferred any “contractual assumptions” under the reinsurance agreement to Armour. The First Department made clear that NICO did not assume any obligations under the OneBeacon policies when it entered the reinsurance agreement, see id. at 227, and there were no “contractual assumptions” to transfer. Moreover, as Plaintiff’s concede, the reinsurance contract exhausted in 2019. See Plaintiffs’ Brief at 10. With the exhaustion of the contract, NICO’s obligations terminated, including its obligations to handle the administration of the claims. Thus, NICO has no obligations to Bedivere under its prior reinsurance contract, and Plaintiffs’ argument that the now-exhausted reinsurance contract somehow presently makes Bedivere an insurer “in name only” is factually baseless. Plaintiffs have provided no evidence that there was any transfer of reinsurance obligations from NICO to Armour. To support this proposition, Plaintiffs cite to an article about Bedivere’s financial condition, but the article does not support Plaintiffs’ assertion. Rather, the article states only that “claims handling responsibilities would shift from Resolute to the new owners, Armour Group.” See Plaintiffs’ Brief at 10, citing Plaintiffs’ Exhibit O (emphasis added). Although Plaintiffs’ argument appears to conflate NICO and Resolute as if both were reinsurers, the very cases on which Plaintiffs rely make clear that Resolute served as a third party administrator, not a 9 10 of 16 FILED: NEW YORK COUNTY CLERK 07/21/2021 06:52 PM INDEX NO. 451540/2021 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 07/21/2021 reinsurer. See OneBeacon Am., 123 A.D.3d at 226-27; Konstantin v. Certain Underwriters at Lloyd’s London, No. 652897/2013, 2018 WL 746154, at*2-4 (N.Y. Sup. Ct. Feb. 7, 2018). Bedivere transferred from Resolute to Armour the responsibility for handling claims; the parties did not transfer any reinsurance rights or obligations. And, as noted above, the reinsurance contract between Bedivere and NICO was exhausted so there were no reinsurance obligations remaining that could have even been subject to transfer. B. Bedivere’s Reinsurance Does Not Impact Colgate’s Status as a “Bedivere Insured” As a legal matter, even if the reinsurance agreement continued in force, it did not give Colgate any rights under the agreement against NICO or any reinsurer. In fact, the First Department has held that Colgate lacked standing to bring a claim against NICO for breach of the reinsurance contract because it was “a contract only between NICO and [Bedivere’s predecessor] OneBeacon” that was “separate and distinct from the underlying [insurance] policies,” and a reinsurance contract to which Colgate was not a party. OneBeacon Am., 123 A.D.3d at 227. The First Department confirmed that “OneBeacon remains fully and solely responsible for the performance of its obligations under the Policies even if NICO and Resolute are performing those obligations on its behalf.” Id. Thus, even if the reinsurance agreement had not exhausted, Colgate remains an insured of Bedivere, and Bedivere remains liable to Colgate under the insurance policies. In short, for purposes of evaluating Colgate’s status as an insured of Bedivere, the reinsurance agreement between NICO and OneBeacon is irrelevant. III. Plaintiffs’ Claim That Colgate Has Other Insurance Is Irrelevant Plaintiffs’ assertion that, in addition to the Bedivere policies, Colgate has insurance policies issued by other insurers is entirely irrelevant to whether Colgate is an insured under Bedivere policies. Bedivere’s contractual obligations exist under its policies regardless of whether another 10 11 of 16 FILED: NEW YORK COUNTY CLERK 07/21/2021 06:52 PM INDEX NO. 451540/2021 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 07/21/2021 insurer might also have issued coverage to Colgate. The cases relied upon by Plaintiffs involve questions of a duty to defend by primary insurers and contribution rights among those insurers. See Plaintiffs’ Brief at 19 (citing Cont’l Cas. Co. v. Rapid-Am. Corp., 80 N.Y.2d 640 (1993) and Travelers Cas. & Surety Co. v. Alfa Laval Inc., 100 A.D.3d 451 (1st Dep’t 2012)). The complexity of the issues in these cases and the analysis of various insurance contract terms in connection with the allegations of the underlying claims underscores why coverage determinations should not be made in a summary fashion before this tribunal – at least without affording the Superintendent the opportunity to review and evaluate Bedivere’s coverage obligations. Moreover, it is wholly irrelevant that Colgate is a viable entity and also purchased liability coverage from other insurers over the years. There is no suggestion in any of the statutes that the rules governing liquidations or New York ancillary proceedings are meant to apply only to those insureds that are not able to mount their own defense or are not viable entities. If this Court makes a determination regarding either the application of Bedivere coverage to any NYCAL case or whether any insured can seek contribution from Bedivere later, it will preemptively undermine the authority of the Superintendent to carry out her designated duties and cause undue prejudice to Bedivere, as well as Colgate as a policyholder, with possible risks of unnecessary litigation in the future. Finally, Plaintiffs’ argument that Bedivere insureds can obtain a defense from the Pennsylvania Property and Casualty Insurance Guaranty Association is entirely misplaced. There has been no determination whether and to what extent the Pennsylvania Property and Casualty Insurance Guaranty Association will handle the claims against Colgate. Plaintiffs’ brief contains no analysis at all whether the claims against Colgate pending in New York are even covered by the Pennsylvania guaranty association, and does not even cite to the definition of what kinds of 11 12 of 16 FILED: NEW YORK COUNTY CLERK 07/21/2021 06:52 PM INDEX NO. 451540/2021 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 07/21/2021 claims are covered by the guaranty association. See 40 P.S. § 991.1802 (defining “covered claim” as claims for which “the claimant or insured is a resident of this Commonwealth at the time of the insured event”). And, notably, the Superintendent’s Article 74 Petition to this Court made clear that the Pennsylvania Liquidator is sending the Superintendent in New York the underlying files for the Colgate cases pending in New York for handling in the first instance. See Exhibit D (Article 74 Petition), ¶ 17. IV. Severance Should Only be Permitted on Motion and for Cause Colgate is not opposed to this Court allowing Plaintiffs to petition their respective NYCAL trial courts to have Colgate severed from their cases, but only upon proper motion and for proper cause. Plaintiffs’ broad request that this Court declare that trial courts be allowed to sever insureds of Bedivere at their discretion – without motion or consideration of the merits – would be highly prejudicial to Colgate, as well as the Bedivere estate, and should be denied. It is well-settled law in New York that courts should exercise caution when considering an application to sever “so as to avoid multiplicity and circuity of litigation and to achieve the desirable goal of determining both primary and ultimate liability in a single proceeding.” Karama Supermarket, Inc. v. Frawley Plaza Assocs., 200 A.D.2d 355, 356, 606 N.Y.S.2d 177 (1st Dept. 1994) (citing Cohen Agency v Perlman Agency, 51 NY2d 358, 365 (1980)). Because it is preferable for related actions to be tried together, to avoid wasting judicial resources or risking inconsistent verdicts, Rothstein v. Milleridge Inn, Inc., 251 A.D.2d 154, 155, 674 N.Y.S.2d 346 (1st Dept. 1998), courts should deny applications to sever where the factual and legal questions involved in the main action and the action requested to be severed are virtually identical. Fries v. Sid Tool Co., 90 A.D.2d 512, 512, 455 N.Y.S.2d 25 (2nd Dept. 1982). To be clear, not all of Colgate’s NYCAL cases are appropriate for severing Colgate from 12 13 of 16 FILED: NEW YORK COUNTY CLERK 07/21/2021 06:52 PM INDEX NO. 451540/2021 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 07/21/2021 the remainder of the case. In some circumstances, Colgate’s defenses may be so intertwined with the facts of a given matter that allowing the matter to proceed without Colgate could risk great prejudice to Colgate and Bedivere. For example, severance could harm Colgate by depriving it of the opportunity to preserve and lodge objections if an adverse finding or determination is made against its interests in a separate action. In cases that are still in the early stages, any further discovery or judicial determinations pertaining to fact and expert witnesses, co-defendants or non- parties would need to be duplicated and, if such evidence becomes unavailable at the time the severed action proceeds, Colgate could be deprived of its ability to preserve its objections and be able to prepare meaningfully its full defenses. Each petition for severance should be judged on its own merits upon proper motion practice before the trial court handling the underlying claim. VI. Alternative Modifications For Consideration As demonstrated herein, the NYLB and Colgate have engaged in efforts to balance the rights of the NYCAL plaintiffs in preserving the testimony of terminally ill plaintiffs while preserving the interests of the Bedivere estate and its insured. Colgate recognizes that these piecemeal approaches to stipulations place significant burdens on the parties, this Court and the NYLB, and that the NYLB is better served focusing on processing and assessing the potentially thousands of claims impacted by the Bedivere insolvency. Accordingly, subject to the Superintendent’s approval, Colgate respectfully suggests that the Court may consider implementing modifications to this Court’s June 16, 2021 Order as to the enjoined asbestos litigation matters in the State of New York, to permit, upon written stipulation from the NYLB on a case by case basis: 1) terminally ill plaintiffs to prepare and serve responses to standard interrogatories and requests for production of documents in accordance with applicable Case Management Orders; 13 14 of 16 FILED: NEW YORK COUNTY CLERK 07/21/2021 06:52 PM INDEX NO. 451540/2021 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 07/21/2021 2) discovery and/or de bene esse depositions of terminally ill plaintiffs to proceed to preserve their testimony; 3) the dismissal of any defendant by stipulation or other mechanisms permitted under operable Case Management Order; 4) Plaintiffs to enter into settlement with any non-Bedivere insured in any matter, and further to enter into settlement with any Bedivere insured upon approval of the NYLB; 5) Plaintiffs in any living In Extremis case to file a motion to sever an insured of Bedivere to the trial court on notice to the NYLB or alternatively to enter into a Stipulation with the Bedivere insured for such severance with the approval of the NYLB; and 6) Plaintiffs to form and substitute estates in cases in which the terminally ill plaintiff passes away during the period of this injunction. 14 15 of 16 FILED: NEW YORK COUNTY CLERK 07/21/2021 06:52 PM INDEX NO. 451540/2021 NYSCEF DOC. NO. 68 RECEIVED NYSCEF: 07/21/2021 CONCLUSION For the reasons and the arguments set forth herein, Colgate respectfully states that it is indisputably an insured of Bedivere, and thus, Plaintiffs’ challenge to the application of this Court’s injunction to Colgate (and their attempt to effectively seek a summary declaration regarding Bedivere’s coverage obligations to Colgate) should be denied by this Court. Colgate further respectfully requests that if this Court modifies the order to allow severance of Colgate from the underlying litigations that such severance be permitted only on motions and for cause before the tribunal(s) in which such matters are pending. Dated: New York, New York July 21, 2021 _________________________________ _____________________________ Adam Budesheim Erik C. DiMarco MCCARTER & ENGLISH, LLP GORDON & REES SCULLY & Worldwide Plaza MANSUKHANI, LLP 825 Eighth Avenue, 31st Floor One Battery Park Plaza, 28th Floor New York, New York 10019 New York, NY 10004 (212) 609-6800 (212) 453-0771 Attorneys for Colgate-Palmolive Attorneys for Colgate-Palmolive Company in the Ancillary Proceeding Company in NYCAL 15 16 of 16