Preview
Filed 13 Ma 9 A8:20
Chris Daniel - District Clerk
Harris Coun!
ED101) 017476020
By: Carol Williams
CAUSE NO. 2010
GPM HOUSTON PROPERTIES, LTD.
TRIYAR COMPANIES, INC. (f/k/a IN THE DISTRICT COURT
TRIYAR COMPANIES, LLC.),
TRIYAR COMPANIES, LLC,
SJM REALTY, LTD.
Plaintiffs
vs. JUDICIAL DISTRICT
FIREMAN’S FUND INSURANCE HARRIS COUNTY, TEXAS
COMPANY
Defendant JURY TRIAL REQUESTED
OBJECTIONS TO SECONDAFFIDAVIT OF BRIAN KLEPCHICK AND MOTION TO
STRIKE TESTIMONY OF BRIAN KLEPCHICK
To the Honorable Judge of Said Court:
Now come Plaintiffs GPM Houston Properties, Ltd. (“GPM”), Triyar Companies, Inc.
(f/k/a Triyar Companies, LLC), Triyar Companies, LLC and SJM Realty, Ltd. (“SJM”)
(hereinafter “Plaintiffs” or “Triyar”) and file these Objections to the Second Affidavit of Brian
Klepchick and Motion to Strike Testimony of Brian Klepchick in support of the Amended Plea
to Court's Jurisdiction and Traditional No Evidence Motion for Summary Judgment
Plea/Motion for Summary Judgment”) filed by Defendant Fireman’s Fund Insurance Company
(“FFIC”) and, in support thereof, shows this Court the following:
Introduction
In support of its Plea/Motion for Summary Judgment, FFIC has proffered the Affidavit of
Brian Klepchick (“Klepchick”) lepchick is a Vice President for Commercial Property
Insurance employed by FFICKlepchick does set out any of his qualifications, except he states
that he has been employed in FFIC’s underwriting department for approximately 20 years.
Klepchick was not personally involved of the underwriting of the 2006 policy, the 2007 policy
or the 2008 policy. Thus, Klepchick has no personal knowledge regarding the underwriting or
issuance of th e policies. Klepchick was not personally involved of the underwriting of the
2006 policy, the 2007 policy or the 2008 policy. Rather, Klepchick’s opinions appear to be
based upon his review of the underwriting files for the 2006, 2007 and 2008 policies.
Furthermore, Klepchick has not been designated as an expert on any issue whatsoever
Notwithstanding the foregoing, Klepchick attempts to provide opinion testimony
regarding various events and subject matters despite the fact that (1) he has no personal
knowledge, (2) he has not been designated as an expert (3) he is not qualified, (4) his opinion
amount to legal conclusions and/or (5) he has no reliable basis on such opinions. Triyar objects
to Klepchick’s testimony/opinions/legal conclusions upon such bases.
Background
As noted above, Klepchick was not personally involved with the underwriting of the
2006 policy, the 2007 policy or the 2008 policy, and Klepchick is now providing opinions and
legal conclusion based upon his review of the underwriting files for the 2006, 2007 and 2008
policies, although he has not been designated as an expert on underwriting or on any other
subject
Also, it is noteworthy that, in his Affidavit, Klepchick has been careful not to disclaim
that the 2007 policy and the 2008 policy were renewals of the 2006 policy respectively.
Undisputedly,the 2007 policy and the 2008 policy were renewals of the 2006 policy.
These policies were, in fact, renewal policies as a matter of law. A renewal insurance policy automatically
provides the same coverage as its predecessor unless the insurer gives the insured notice that the cove has been
changed
in the renewal. See Allan
D. Windt, Insurance
Claims and Disputes § 6.9, at 6 139 n. 3 (5th ed.2007)
(collecting cases in support of this nile). The justification for this nile is that “when an insured already owns a
policy issued by a particular insurer, the insured can, absent notice from the insurer to the contrary, justifiably
assume that a renewal of the same policy by that insurer provides the same coverage.” 1 WINDT, supra, § 6.9, at6
140 (emphases added).
Here, the 2007 renewal policy and the 2008 renewal policy were issued and provided the same coverage as
its predecessor without any new insurance application and without notice that the coverage has been changed. All
SJM and GPM were intended insureds under the policy
The Triyar Group represents a portfolio of properties which were managed by Triyar
Companies, LLC. The properties in the Triyar portfolio were held in the name of single asset
entities for tax and liability reasons. Triyar Companies, LLC sought and obtained property
coverage for the properties/single asset entities in the Triyar portfolio with FFIC’s full
knowledge of Triyar’s operations and the ownership of Triyar properties in the name of single
asset entities (including SJM/San Jacinto Mall and GPM/Greenspoint Mall). FFIC cannot claim
alack of such knowledge to avoid coverage under the 2008 policy.
he 2002 policy
FFIC had previously insured the properties/single asset entities in the Triyar Group for
the 2002 2003 policy year under the 2002 policy. After the 2002 policy was issued, FFIC agreed
to issue an endorsement listing all of the single asset entities/properties as additional insureds to
Clarify the intention that the properties/single asset entities in the Triyar Group were intended to
be insured, and the endorsement
was issue at no cost (i.e. no premium charge) because the
properties/single sset entities in the Triyar Group were intended to be insured all along. See 1
03 endorsement to the 2003 Policy.
The 2006 policy
Then, after having been away from FFIC for two years, the Triyar Group was persuaded
to retum to FFIC in 2006, and Triyar Companies, LLC (the managing/administrative agent for
the Triyar Group) submitted a detailed application (the “2006 application”). Through the 2006
application, Triyar applied for coverage for the properties and related single asset entities (in
that FFIC required before issuing these renewal policies was an updated statement of value of the covered
properties, and the premiums for these renewal policies were assessed commensurately (as discussed in Triyar’s
Response/Cross Motion for Summary Judgment)
In addition, FFIC’s guidelines allow the underwriters to extend or renew policies up to 3 years without the
taking of a new application. See Paradis Depo. at pp. 62 63. That is what here.
The 2006 policy is attached to Triyar’s Response/Cross Motion to FFIC’s Motion for Summary Judgment.
which names the covered Triyar properties were held). Also, Triyar attached a schedule of
properties/single asset entities/locations to the 2006 application which clearly showed the names
of the single asset entities for each of the Triyar properties (including SJM/San Jacinto Mall and
GPM/Greenspoint Mall) to be coveredSee the 2006 application, with detailed schedule of
properties/single asset entities/locations to be insured. Then, FFIC separately rated, priced,
underwrote and insured the entities and properties in the Triyar Group that were listed in the
Application
Moreover, FFIC made the conscious decision to issue the policy only in the name of
Triyar Group or Triyar Companies, LLC with the intention of providing coverage for the
properties/single asset entities (including SJM and GPM) in which name_ the covered Triyar
properties
were held. This fact is even established by summary judgment evidence submitted by
FFIC in support of its Second Supplement. (See Exhibit N mail, dated July 19, 2006, from
Paul Walker (FFIC’s underwriter), responding to request from Evelyn Navoa of FFIC regarding
whether
to list “all of the other entities”: “Please just go with Triyar Companies, LLC for now.”)
In other words, FFIC’s own summary judgment evidence establishes that knowing about the
properties/single asset entities
in the Tniyar Group and intending
them to be insured, FFIC
consciously chose to issue the 2006 policy only in the name of the Triyar Group or Triyar
Companies, LLC knowing that the other Triyar related single asset entities would be covered
under the 2006 policy.
The 2006 application is attached as Exhibit 1 to the Affidavit of Renee Chorpash, Exhibit 18 to Triyar’s
Response/Cross Motion for SummaryJ' The schedule of properties/single asset entities (entitled “Triyar
Fireman's Locations Schedule” is Exhibit 3 to the Affidavit of Renee Chorpash.
FFIC’s underwriter Paul Walker) refused to disclaim that FFIC would not insure the other single asset
entities/applicants for insurance under the 2006 applicati See Deposition of Paul Walker, Ex. 95, at p. 118, 1. 4
Exhibit 18 to Triyar’s Response/Cross Motion for Summary Judgment). FFIC never informed FFIC’s agent
Penn/USI) or Triyar's agent ( Skinner or Triyar that it was rejecting any of the singl asset entities/applicants
for whom it requested coverage under the 2006 Application. (See Affidavit of Mike Skinner attached to Triyar’s
Response/Cross Motion to FFIC’s Motion for Summary Judgment
Furthermore, FFIC advised Triyar through FFIC’s agent (Penn/USI) that it would be
issuing the 2006 policy only in the name of the Triyar Group or Triyar Companies, LLC and
would not be separately listing
the single asset entities. This fact is established
by the Affidavit
of Renee Chorpash of MG Skinner & Company (Triyar’s agent), which confirms that she had
been advised
that FFIC “had decided to issue the policy in the name of one Named Insured
(Triyar Companies, LLC) only.” See Affidavit of Renee Chorpash.
Thus,SJM and GPM were intended insureds under the 200policy
Klepchick’s legal constructionand opinions re: the 2006 application and policy
Again, the 2007 policy and the 2008 policies were renewals of the 2006 policy. Thus,
the agreement/intention to insure Triyar Companies LLC and the properties/related single asset
entities carried forward to the 2007 renewal policy and the 2008 renewal policy. As such, the
knowledge and intention of the parties relating to the 2006 policy is relevant and compels the
conclusion that all of the Triyar related entities/properties are covered under the 2006, 2007 and.
2008 policies.
(a) Who was intended to be insured based on the 2006 application and the 2006 Policy
In his Affidavit, Klepchick interpret and states various legal conclusions about the 2006
application. (See Klepchick Affidavit at 6) Despite the history of the parties discussed above,
Klepchick asserts that, although the 2006 application request that SJM and GPM “be included
in the proposed 2006 2007 policy as insureds,” “[s]uch 2006 request was not accepted by FFIC
as demonstrated by the 2006 2007 policy declarations” which did not mention SJM and SPM, as
well as Triyar Companies, Inc.” (Klepchick Affidavit at 16)
The Affidavit of Renee Chorpash is also attached to Triyar’s Response/Cross Motion to FFIC’s Motion for
Sumnury Judgment
See footnote no. 1.
Basically, Klepchick is construing the 2006 application and the 2006 policy, and he is
stating legal conclusions about who and what the 2006 policy did and did not cover. It is
inappropriate for Klepchick to render such legal conclusions (even if he had personal knowledge
if he was qualified and/or if he had been designated asa expert witness). See Tex.
R. Evid. 70
(disallowing an expert to render conclusions of law).Nat'l Convenience Stores Inc. GP.
Matherne, 987 S.W.2d 145, 149 (Tex. App. Houston [14 Dist] 1999, no pet.) Experts are
“not competent to give an opinion or state a legal conclusion regarding a question of law because
such a question is exclusively for the court to decide and is not an ultimate issue for the trier of
fact." see also Upjohn Co. Rylander, 38 S.W.3d 600,611 (Tex. App. Austin 2000, pet
denied) (An expert witness may not testify regarding an opinion on a pure question of law.");
Holden Weidenfeller, 929 S.W.2d 124, 133 34 (Tex. App. San Antonio 1996, writ denied)
(same).
Moreover, Klepchick lacks a reliable basis for his opinions. For example, Klepchick fails
to mention to note the e mail request/response noted above or that the 2006 policy was issued.
only in the name of the Triyar Group and Triyar Companies, LLC with FFIC’s knowledge/intent
that the properties/single asset entities in the Triyar Group would be insured. Rather, Klepchick
opinions are merely ipse dixit, as they disregard the history of the parties and FFIC’s own
conduct which compels the conclusion that SJM and GPM were intended insureds under the
policies.
(b) Ambiguity
By necessary implication, Klepchick concludes that the naming of “Triyar Group” or
“Triyar Companies, LLC” as the Named Insured did not create any ambiguity (a legal
conclusion) and that only Triyar Group or Triyar Companies, LLC” qualify as insureds under the
policies (another legal conclusion). (See Klepchick Affidavit at 112)
Whether an insurance
policy contains ambiguity is a matter of law for the Court to
decide. See eg. National Union Fire Ins. Co. of Pittsburgh, PA v. CBI Industries, Inc.,
S.W.2d 517 (Tex. 1005). Also, the legal construction of policy terms is a function reserved to
the Court. See Evergreen Nat. Indem Co. v. Tan It All, Inc., 111 S.W.3d 669, 675 (Tex. App.
Austin 2003, no pet.) (“The construction of an insurance policy is a legal issue for the court”).
Here, Klepchick is invading the Court’s province to determine the existence of ambiguity in the
policy, and he is making an impermissible legal conclusion about who was the intended insured
under the policies. The Court should not allow Klepchick to do so.
Furthermore, by concluding that there is no ambiguity, Klepchick fails to realize that the
“Triyar Group” is not an entity; it refers to the Triyar related entities and properties in the Triyar
portfolio. Thus, the issuance of the policies only in the name of the Triyar Group or Triyar
Companies, LLC (an entity which, according to FFIC, did not even exist at the time) creates a
latent ambiguity under the circumstances, and such ambiguity should be construed against FFIC
and in favor of the intended coverage. See e.g. National Union Fire Ins. Co. of Pittsburgh, PA v.
CBI Industries, Inc., 907 S.W.2d 517, 520 (Tex. 1995). Here, such construction (that Triyar
Companies, LLC was intended as a shorthand reference for the entities/properties in the Triyar
Group) contravenes FFIC’s conscious decision to issue the 2006 policy only in the name of
Triyar Group or Triyar Companies, LLC to represent the Triyar related entities/properties. Also,
such construction serves to promote, rather than frustrate, the intentions and expectations of the
parties.
In addition, Klepchick’s conclusion completely disregards the history of the parties. As
ted above, the 2006 application included a schedule of properties /single asset entities/which
Clearly indicated the identity of each single asset entity in which name each covered property
was held. FFIC was aware of this fact, when FFIC made the conscious decision to issue the
2006 policy only in the name of Triyar Group/Triyar Companies, LLC with knowledge and
intention for covering the properties/single asset entities in the Triyar Group (as discussed
above) Furthermore, FFIC advised Triyar through FFIC’s agent, Penn/USI, that it would be
issuing the policy only in the name of the Triyar Group or Triyar Companies, LLC and would
not be separately listing the single asset entities (as also discussedabove).
In his Affidavit, Klepchick notes that Triyar Companies, LLC did not submit applications
to FFIC for the 2007 and 2008 policies, rather FFIC presented its proposals for each of the
policies. (Klepchick Affidavit at (7 and 8) In effect, Klepchick is opining that the proposals
provide the only basis for the parties’ agreement under the 2007 and 2008 policies. (See
Klepchick Affidavit at 17 and 8) Also, Klepchick is legally concluding that the 2007 policy and
the 2008 policy are not renewals of the 2006 policy. Lastly, Klepchick is legally concluding that
SJM and GPM were not intended insureds under the policies (a legal conclusion). These issues
are legal issues for the Court, and it is wholly inappropriate for Klepchick to offer such
opinions/legal conclusions (even if he had personal knowledge, if he was qualified and/or if he
had been designated
as a expert witness). See Tex.
R. Evid. 702 704; Flemingv. Kinney ex
rel. Shelton, S.W.3d_, 2013 WL 1420377, op. at *11 14 (Tex. App. Houston [14
Dist.] April 9, 2013, no pet); Stallion Heavy Haulers, LP v. Lincoln General Insurance
Company, 2011 WL 130154 at *1 2 (W.D. Tex. Jan. 13, 2011) (disallowing a proffered expert
from interpreting and rendering legal conclusion regarding the application and ramifications of
the various policy provisions).
Klepchick’s legal constructionand opinions re: he 2007 and 2008 proposalsand policies
Moreover, Klepchick lacks a reliable basis for his opinions. For example, the lack of
separate applications for the 2007 and 2008 policies compels the conclusion that these policies
are renewal policies. Also, like the proposal for the 2006 policy, the proposals for these policies
do not even address who was intended to be insured under the policies. See proposals attached
to FFIC’s Second Supplement. Rather, Klepchick opinions are merely ipse dixit, and they
disregard the history of the parties and FFIC’s own conduct which compels the conclusion that
SJM and GPM were intended insureds under
the policies.
Klepchick’s opinions re: the legal significance of the conversion of Triyar Com anies, LLC
to Triyar Companies, Inc. under California Law
Klepchick also concludes that, by virtue of a Certificate of Cancellation pertaining to
Triyar Companies, LLC. ..., Triyar Companies, LLC dissolved on or before August 3, 2007, by a
vote of all its members. Thus, Triyar Companies, LLC had dissolved over 10 months before
June 30, 2008, the inception date of the 2008 2009 Policy.” (Emphasis added.) (Klepchick
Affidavit at 98). Klepchick further asserts that, “had FFIC know that Triyar Companies, LLC
did not exist on such inception date, it would have never issued the 2008 2009 policy.”
(Emphasis added.) (Klepchick Affidavit at %8).
By stating that Triyar Companies, LLC was “dissolved” and no longer exited (both legal
conclusion), Klepchick is basically making a legal determination regarding the effect of the
conversion of Triyar Companies, LLC to Triyar Companies, Inc. under Califomia law. Contrary
to Klepchick’s conclusion, Triyar Companies, Inc. succeeded to all rights and obligations of
See footnote 1.
Triyar Companies, LLC following the conversion of Triyar Companies, LLC to Triyar
Companies, Inc. in 2007 as a matter
of law (as discussed in the Triyar’s Response/Cross Motion
for Summary Judgment, and Triyar’s Motion for Summary Judgment on Conversion). It is the
same company, it has the same tax ID’s, ownership, management, etc., and there was no change
inits operations or the risk insured
by FFIC.
Thus, Klepchick statement regarding whether FFIC would or would not have issued the
2008 policy “had it known” is speculative at best. Moreover, Klepchick disregards that (1)
Triyar Copmanies, LLC and Triyar Companies, Inc. are the same entity and (2) FFIC knew about
the conversion before FFIC issued the 2008 policy(as noted above)
Likewise, Klepchick states the “per the express terms of the Policy, the Policy could only
be amended to insure Triyar Companies, Inc. by written endorsement
consented to and issued by
FFIC. FFIC did not agree to insure Triyar Companies, inc. as made clear from the fact that no
endorsement to that effect was ever issued by FFIC” (i.e, legal conclusions). (Klepchick
Affidavit at 713). Klepchick also concludes that “the fact that GPM, SJM and TriyarCompanies,
Inc. were not mentioned in the Polciy conclusively means that it was never FFIC’s intent to
insure them against loss” (another legal conclusion) (Klepchick Affidavit at 13)
However, Klepchick’s assertion disregards that, under applicable Califomia law, Triyar
Companies, Inc. succeeded
to all rights and obligations of Triyar Companies, LLC as a matter of
law (as discussed in the Triyar’s Response/Cross Motion for Summary Judgment, and Triyar’s
Motion for Summary Judgment on Conversion). Thus, it is immaterial whether an endorsement
was added to the policy reflecting that FFIC agreed to insure Triyar Companies, Inc. (the
successor Triyar Companies, LLC).
Incidentally, Triyar notes that Klepchick is not an attomey, and he has no legal training.
Besides not being qualified (as he is not a Califomia attomey), and not being designated as an
expert, Klepchick should not be allowed to render legal conclusions on the effect of conversion
of a limited liability company (such as Triyar Companies, LLC) to a stock corporation (such as
Triyar Companies, Inc.) under Califomia law. Tex. R. Evid. 702, 703; See eg., Greenberg
Traurig of New York, P.C. v. Moody, 161 S.W.3d 56, 94 (Tex. App. Houston[14 Dist.] 2004,
no pet.) (recognizing that an expert is not allowed to testify directly to his understanding of the
law); Taylor Pipeline Const., Inc. v. Directional Rd. Boring, Inc.,438 F. Supp. 2d 696 (E.D. Tex.
(holding that expert in construction was not qualified to render an opinion regarding the
obligations of parties to construction contracts or other areas of construction law Id. Also,
Klepchick should be precluded from rendering legal conclusions regarding the legal impact of
specific endorsements (or the lack thereof) under an insurance policy. Id By doing so,
Klepchick is impenmissibly invading the province of the Court by construing the terms of the
policy. The construction of an insurance policy is a legal issue forthe ourt, and not Klepchick
(or anyone else). Evergreen Nat. Indem Co. v. Tan It All, Inc., 111 S.W.3d 669, 675 (Tex. App.
Austin 2003, no pet.)
Conclusion
Klepchick lacks personal knowledge as a basis for much of his testimony. Klepchick
renders various opinion testimony for which he is neither qualified and/or for which he lacks a
reliable basis. Moreover, Klepchick renders numerous legal conclusions and opinions with tread
on the province of this Court. As a result, the Court should strike his testimony accordingly.
Prayer
Wherefore premises considered, Plaintiffs GPM Houston Properties, Ltd, Triyar
Companies, Inc. (f/k/a Triyar Companies, LLC), Triyar Companies, LLC and SJM Realty, Ltd.
respectfully pray that, upon hearing hereof, this Court will sustain the foregoing Objections to
the Second Affidavit of Brian Klepchick and will award such other and further relief to which
Plaintiffs may be justly entitled.
Respectfully submitted,
/s/ James L. Comell
James L. Comell
Comell & Pardue
State Bar No. 04834800
2727 Allen Parkway Suite 1675
Houston, Texas 77019
Telephone (713) 526 0500
Facsimile (713) 526 7974
jcomell@comell pardue.net
Gene F. Creely, II
Creely Law Firm PLLC
State Bar No. 05060550
Richmond Avenue, Suite 250
Houston, Texas 77006
Telephone (713) 400 8300
Facsimile (713) 400 8299
gcreely@creelylaw.com
Attorneys for Plaintiffs
CERTIFICATE OF SERVICE
Thereby certify that a true and correct copy of the above and foregoing document was
served on all counsel of record
via hand delivery, U.S. mail, ovemight delivery, fax, and/ore
filing, on this the day of May
/s/ James L. Comell
Preview
Filed 13 Ma 9 A8:20 Chris Daniel - District Clerk Harris Coun! ED101) 017476020 By: Carol Williams CAUSE NO. 2010 GPM HOUSTON PROPERTIES, LTD. TRIYAR COMPANIES, INC. (f/k/a IN THE DISTRICT COURT TRIYAR COMPANIES, LLC.), TRIYAR COMPANIES, LLC, SJM REALTY, LTD. Plaintiffs vs. JUDICIAL DISTRICT FIREMAN’S FUND INSURANCE HARRIS COUNTY, TEXAS COMPANY Defendant JURY TRIAL REQUESTED OBJECTIONS TO SECONDAFFIDAVIT OF BRIAN KLEPCHICK AND MOTION TO STRIKE TESTIMONY OF BRIAN KLEPCHICK To the Honorable Judge of Said Court: Now come Plaintiffs GPM Houston Properties, Ltd. (“GPM”), Triyar Companies, Inc. (f/k/a Triyar Companies, LLC), Triyar Companies, LLC and SJM Realty, Ltd. (“SJM”) (hereinafter “Plaintiffs” or “Triyar”) and file these Objections to the Second Affidavit of Brian Klepchick and Motion to Strike Testimony of Brian Klepchick in support of the Amended Plea to Court's Jurisdiction and Traditional No Evidence Motion for Summary Judgment Plea/Motion for Summary Judgment”) filed by Defendant Fireman’s Fund Insurance Company (“FFIC”) and, in support thereof, shows this Court the following: Introduction In support of its Plea/Motion for Summary Judgment, FFIC has proffered the Affidavit of Brian Klepchick (“Klepchick”) lepchick is a Vice President for Commercial Property Insurance employed by FFICKlepchick does set out any of his qualifications, except he states that he has been employed in FFIC’s underwriting department for approximately 20 years. Klepchick was not personally involved of the underwriting of the 2006 policy, the 2007 policy or the 2008 policy. Thus, Klepchick has no personal knowledge regarding the underwriting or issuance of th e policies. Klepchick was not personally involved of the underwriting of the 2006 policy, the 2007 policy or the 2008 policy. Rather, Klepchick’s opinions appear to be based upon his review of the underwriting files for the 2006, 2007 and 2008 policies. Furthermore, Klepchick has not been designated as an expert on any issue whatsoever Notwithstanding the foregoing, Klepchick attempts to provide opinion testimony regarding various events and subject matters despite the fact that (1) he has no personal knowledge, (2) he has not been designated as an expert (3) he is not qualified, (4) his opinion amount to legal conclusions and/or (5) he has no reliable basis on such opinions. Triyar objects to Klepchick’s testimony/opinions/legal conclusions upon such bases. Background As noted above, Klepchick was not personally involved with the underwriting of the 2006 policy, the 2007 policy or the 2008 policy, and Klepchick is now providing opinions and legal conclusion based upon his review of the underwriting files for the 2006, 2007 and 2008 policies, although he has not been designated as an expert on underwriting or on any other subject Also, it is noteworthy that, in his Affidavit, Klepchick has been careful not to disclaim that the 2007 policy and the 2008 policy were renewals of the 2006 policy respectively. Undisputedly,the 2007 policy and the 2008 policy were renewals of the 2006 policy. These policies were, in fact, renewal policies as a matter of law. A renewal insurance policy automatically provides the same coverage as its predecessor unless the insurer gives the insured notice that the cove has been changed in the renewal. See Allan D. Windt, Insurance Claims and Disputes § 6.9, at 6 139 n. 3 (5th ed.2007) (collecting cases in support of this nile). The justification for this nile is that “when an insured already owns a policy issued by a particular insurer, the insured can, absent notice from the insurer to the contrary, justifiably assume that a renewal of the same policy by that insurer provides the same coverage.” 1 WINDT, supra, § 6.9, at6 140 (emphases added). Here, the 2007 renewal policy and the 2008 renewal policy were issued and provided the same coverage as its predecessor without any new insurance application and without notice that the coverage has been changed. All SJM and GPM were intended insureds under the policy The Triyar Group represents a portfolio of properties which were managed by Triyar Companies, LLC. The properties in the Triyar portfolio were held in the name of single asset entities for tax and liability reasons. Triyar Companies, LLC sought and obtained property coverage for the properties/single asset entities in the Triyar portfolio with FFIC’s full knowledge of Triyar’s operations and the ownership of Triyar properties in the name of single asset entities (including SJM/San Jacinto Mall and GPM/Greenspoint Mall). FFIC cannot claim alack of such knowledge to avoid coverage under the 2008 policy. he 2002 policy FFIC had previously insured the properties/single asset entities in the Triyar Group for the 2002 2003 policy year under the 2002 policy. After the 2002 policy was issued, FFIC agreed to issue an endorsement listing all of the single asset entities/properties as additional insureds to Clarify the intention that the properties/single asset entities in the Triyar Group were intended to be insured, and the endorsement was issue at no cost (i.e. no premium charge) because the properties/single sset entities in the Triyar Group were intended to be insured all along. See 1 03 endorsement to the 2003 Policy. The 2006 policy Then, after having been away from FFIC for two years, the Triyar Group was persuaded to retum to FFIC in 2006, and Triyar Companies, LLC (the managing/administrative agent for the Triyar Group) submitted a detailed application (the “2006 application”). Through the 2006 application, Triyar applied for coverage for the properties and related single asset entities (in that FFIC required before issuing these renewal policies was an updated statement of value of the covered properties, and the premiums for these renewal policies were assessed commensurately (as discussed in Triyar’s Response/Cross Motion for Summary Judgment) In addition, FFIC’s guidelines allow the underwriters to extend or renew policies up to 3 years without the taking of a new application. See Paradis Depo. at pp. 62 63. That is what here. The 2006 policy is attached to Triyar’s Response/Cross Motion to FFIC’s Motion for Summary Judgment. which names the covered Triyar properties were held). Also, Triyar attached a schedule of properties/single asset entities/locations to the 2006 application which clearly showed the names of the single asset entities for each of the Triyar properties (including SJM/San Jacinto Mall and GPM/Greenspoint Mall) to be coveredSee the 2006 application, with detailed schedule of properties/single asset entities/locations to be insured. Then, FFIC separately rated, priced, underwrote and insured the entities and properties in the Triyar Group that were listed in the Application Moreover, FFIC made the conscious decision to issue the policy only in the name of Triyar Group or Triyar Companies, LLC with the intention of providing coverage for the properties/single asset entities (including SJM and GPM) in which name_ the covered Triyar properties were held. This fact is even established by summary judgment evidence submitted by FFIC in support of its Second Supplement. (See Exhibit N mail, dated July 19, 2006, from Paul Walker (FFIC’s underwriter), responding to request from Evelyn Navoa of FFIC regarding whether to list “all of the other entities”: “Please just go with Triyar Companies, LLC for now.”) In other words, FFIC’s own summary judgment evidence establishes that knowing about the properties/single asset entities in the Tniyar Group and intending them to be insured, FFIC consciously chose to issue the 2006 policy only in the name of the Triyar Group or Triyar Companies, LLC knowing that the other Triyar related single asset entities would be covered under the 2006 policy. The 2006 application is attached as Exhibit 1 to the Affidavit of Renee Chorpash, Exhibit 18 to Triyar’s Response/Cross Motion for SummaryJ' The schedule of properties/single asset entities (entitled “Triyar Fireman's Locations Schedule” is Exhibit 3 to the Affidavit of Renee Chorpash. FFIC’s underwriter Paul Walker) refused to disclaim that FFIC would not insure the other single asset entities/applicants for insurance under the 2006 applicati See Deposition of Paul Walker, Ex. 95, at p. 118, 1. 4 Exhibit 18 to Triyar’s Response/Cross Motion for Summary Judgment). FFIC never informed FFIC’s agent Penn/USI) or Triyar's agent ( Skinner or Triyar that it was rejecting any of the singl asset entities/applicants for whom it requested coverage under the 2006 Application. (See Affidavit of Mike Skinner attached to Triyar’s Response/Cross Motion to FFIC’s Motion for Summary Judgment Furthermore, FFIC advised Triyar through FFIC’s agent (Penn/USI) that it would be issuing the 2006 policy only in the name of the Triyar Group or Triyar Companies, LLC and would not be separately listing the single asset entities. This fact is established by the Affidavit of Renee Chorpash of MG Skinner & Company (Triyar’s agent), which confirms that she had been advised that FFIC “had decided to issue the policy in the name of one Named Insured (Triyar Companies, LLC) only.” See Affidavit of Renee Chorpash. Thus,SJM and GPM were intended insureds under the 200policy Klepchick’s legal constructionand opinions re: the 2006 application and policy Again, the 2007 policy and the 2008 policies were renewals of the 2006 policy. Thus, the agreement/intention to insure Triyar Companies LLC and the properties/related single asset entities carried forward to the 2007 renewal policy and the 2008 renewal policy. As such, the knowledge and intention of the parties relating to the 2006 policy is relevant and compels the conclusion that all of the Triyar related entities/properties are covered under the 2006, 2007 and. 2008 policies. (a) Who was intended to be insured based on the 2006 application and the 2006 Policy In his Affidavit, Klepchick interpret and states various legal conclusions about the 2006 application. (See Klepchick Affidavit at 6) Despite the history of the parties discussed above, Klepchick asserts that, although the 2006 application request that SJM and GPM “be included in the proposed 2006 2007 policy as insureds,” “[s]uch 2006 request was not accepted by FFIC as demonstrated by the 2006 2007 policy declarations” which did not mention SJM and SPM, as well as Triyar Companies, Inc.” (Klepchick Affidavit at 16) The Affidavit of Renee Chorpash is also attached to Triyar’s Response/Cross Motion to FFIC’s Motion for Sumnury Judgment See footnote no. 1. Basically, Klepchick is construing the 2006 application and the 2006 policy, and he is stating legal conclusions about who and what the 2006 policy did and did not cover. It is inappropriate for Klepchick to render such legal conclusions (even if he had personal knowledge if he was qualified and/or if he had been designated asa expert witness). See Tex. R. Evid. 70 (disallowing an expert to render conclusions of law).Nat'l Convenience Stores Inc. GP. Matherne, 987 S.W.2d 145, 149 (Tex. App. Houston [14 Dist] 1999, no pet.) Experts are “not competent to give an opinion or state a legal conclusion regarding a question of law because such a question is exclusively for the court to decide and is not an ultimate issue for the trier of fact." see also Upjohn Co. Rylander, 38 S.W.3d 600,611 (Tex. App. Austin 2000, pet denied) (An expert witness may not testify regarding an opinion on a pure question of law."); Holden Weidenfeller, 929 S.W.2d 124, 133 34 (Tex. App. San Antonio 1996, writ denied) (same). Moreover, Klepchick lacks a reliable basis for his opinions. For example, Klepchick fails to mention to note the e mail request/response noted above or that the 2006 policy was issued. only in the name of the Triyar Group and Triyar Companies, LLC with FFIC’s knowledge/intent that the properties/single asset entities in the Triyar Group would be insured. Rather, Klepchick opinions are merely ipse dixit, as they disregard the history of the parties and FFIC’s own conduct which compels the conclusion that SJM and GPM were intended insureds under the policies. (b) Ambiguity By necessary implication, Klepchick concludes that the naming of “Triyar Group” or “Triyar Companies, LLC” as the Named Insured did not create any ambiguity (a legal conclusion) and that only Triyar Group or Triyar Companies, LLC” qualify as insureds under the policies (another legal conclusion). (See Klepchick Affidavit at 112) Whether an insurance policy contains ambiguity is a matter of law for the Court to decide. See eg. National Union Fire Ins. Co. of Pittsburgh, PA v. CBI Industries, Inc., S.W.2d 517 (Tex. 1005). Also, the legal construction of policy terms is a function reserved to the Court. See Evergreen Nat. Indem Co. v. Tan It All, Inc., 111 S.W.3d 669, 675 (Tex. App. Austin 2003, no pet.) (“The construction of an insurance policy is a legal issue for the court”). Here, Klepchick is invading the Court’s province to determine the existence of ambiguity in the policy, and he is making an impermissible legal conclusion about who was the intended insured under the policies. The Court should not allow Klepchick to do so. Furthermore, by concluding that there is no ambiguity, Klepchick fails to realize that the “Triyar Group” is not an entity; it refers to the Triyar related entities and properties in the Triyar portfolio. Thus, the issuance of the policies only in the name of the Triyar Group or Triyar Companies, LLC (an entity which, according to FFIC, did not even exist at the time) creates a latent ambiguity under the circumstances, and such ambiguity should be construed against FFIC and in favor of the intended coverage. See e.g. National Union Fire Ins. Co. of Pittsburgh, PA v. CBI Industries, Inc., 907 S.W.2d 517, 520 (Tex. 1995). Here, such construction (that Triyar Companies, LLC was intended as a shorthand reference for the entities/properties in the Triyar Group) contravenes FFIC’s conscious decision to issue the 2006 policy only in the name of Triyar Group or Triyar Companies, LLC to represent the Triyar related entities/properties. Also, such construction serves to promote, rather than frustrate, the intentions and expectations of the parties. In addition, Klepchick’s conclusion completely disregards the history of the parties. As ted above, the 2006 application included a schedule of properties /single asset entities/which Clearly indicated the identity of each single asset entity in which name each covered property was held. FFIC was aware of this fact, when FFIC made the conscious decision to issue the 2006 policy only in the name of Triyar Group/Triyar Companies, LLC with knowledge and intention for covering the properties/single asset entities in the Triyar Group (as discussed above) Furthermore, FFIC advised Triyar through FFIC’s agent, Penn/USI, that it would be issuing the policy only in the name of the Triyar Group or Triyar Companies, LLC and would not be separately listing the single asset entities (as also discussedabove). In his Affidavit, Klepchick notes that Triyar Companies, LLC did not submit applications to FFIC for the 2007 and 2008 policies, rather FFIC presented its proposals for each of the policies. (Klepchick Affidavit at (7 and 8) In effect, Klepchick is opining that the proposals provide the only basis for the parties’ agreement under the 2007 and 2008 policies. (See Klepchick Affidavit at 17 and 8) Also, Klepchick is legally concluding that the 2007 policy and the 2008 policy are not renewals of the 2006 policy. Lastly, Klepchick is legally concluding that SJM and GPM were not intended insureds under the policies (a legal conclusion). These issues are legal issues for the Court, and it is wholly inappropriate for Klepchick to offer such opinions/legal conclusions (even if he had personal knowledge, if he was qualified and/or if he had been designated as a expert witness). See Tex. R. Evid. 702 704; Flemingv. Kinney ex rel. Shelton, S.W.3d_, 2013 WL 1420377, op. at *11 14 (Tex. App. Houston [14 Dist.] April 9, 2013, no pet); Stallion Heavy Haulers, LP v. Lincoln General Insurance Company, 2011 WL 130154 at *1 2 (W.D. Tex. Jan. 13, 2011) (disallowing a proffered expert from interpreting and rendering legal conclusion regarding the application and ramifications of the various policy provisions). Klepchick’s legal constructionand opinions re: he 2007 and 2008 proposalsand policies Moreover, Klepchick lacks a reliable basis for his opinions. For example, the lack of separate applications for the 2007 and 2008 policies compels the conclusion that these policies are renewal policies. Also, like the proposal for the 2006 policy, the proposals for these policies do not even address who was intended to be insured under the policies. See proposals attached to FFIC’s Second Supplement. Rather, Klepchick opinions are merely ipse dixit, and they disregard the history of the parties and FFIC’s own conduct which compels the conclusion that SJM and GPM were intended insureds under the policies. Klepchick’s opinions re: the legal significance of the conversion of Triyar Com anies, LLC to Triyar Companies, Inc. under California Law Klepchick also concludes that, by virtue of a Certificate of Cancellation pertaining to Triyar Companies, LLC. ..., Triyar Companies, LLC dissolved on or before August 3, 2007, by a vote of all its members. Thus, Triyar Companies, LLC had dissolved over 10 months before June 30, 2008, the inception date of the 2008 2009 Policy.” (Emphasis added.) (Klepchick Affidavit at 98). Klepchick further asserts that, “had FFIC know that Triyar Companies, LLC did not exist on such inception date, it would have never issued the 2008 2009 policy.” (Emphasis added.) (Klepchick Affidavit at %8). By stating that Triyar Companies, LLC was “dissolved” and no longer exited (both legal conclusion), Klepchick is basically making a legal determination regarding the effect of the conversion of Triyar Companies, LLC to Triyar Companies, Inc. under Califomia law. Contrary to Klepchick’s conclusion, Triyar Companies, Inc. succeeded to all rights and obligations of See footnote 1. Triyar Companies, LLC following the conversion of Triyar Companies, LLC to Triyar Companies, Inc. in 2007 as a matter of law (as discussed in the Triyar’s Response/Cross Motion for Summary Judgment, and Triyar’s Motion for Summary Judgment on Conversion). It is the same company, it has the same tax ID’s, ownership, management, etc., and there was no change inits operations or the risk insured by FFIC. Thus, Klepchick statement regarding whether FFIC would or would not have issued the 2008 policy “had it known” is speculative at best. Moreover, Klepchick disregards that (1) Triyar Copmanies, LLC and Triyar Companies, Inc. are the same entity and (2) FFIC knew about the conversion before FFIC issued the 2008 policy(as noted above) Likewise, Klepchick states the “per the express terms of the Policy, the Policy could only be amended to insure Triyar Companies, Inc. by written endorsement consented to and issued by FFIC. FFIC did not agree to insure Triyar Companies, inc. as made clear from the fact that no endorsement to that effect was ever issued by FFIC” (i.e, legal conclusions). (Klepchick Affidavit at 713). Klepchick also concludes that “the fact that GPM, SJM and TriyarCompanies, Inc. were not mentioned in the Polciy conclusively means that it was never FFIC’s intent to insure them against loss” (another legal conclusion) (Klepchick Affidavit at 13) However, Klepchick’s assertion disregards that, under applicable Califomia law, Triyar Companies, Inc. succeeded to all rights and obligations of Triyar Companies, LLC as a matter of law (as discussed in the Triyar’s Response/Cross Motion for Summary Judgment, and Triyar’s Motion for Summary Judgment on Conversion). Thus, it is immaterial whether an endorsement was added to the policy reflecting that FFIC agreed to insure Triyar Companies, Inc. (the successor Triyar Companies, LLC). Incidentally, Triyar notes that Klepchick is not an attomey, and he has no legal training. Besides not being qualified (as he is not a Califomia attomey), and not being designated as an expert, Klepchick should not be allowed to render legal conclusions on the effect of conversion of a limited liability company (such as Triyar Companies, LLC) to a stock corporation (such as Triyar Companies, Inc.) under Califomia law. Tex. R. Evid. 702, 703; See eg., Greenberg Traurig of New York, P.C. v. Moody, 161 S.W.3d 56, 94 (Tex. App. Houston[14 Dist.] 2004, no pet.) (recognizing that an expert is not allowed to testify directly to his understanding of the law); Taylor Pipeline Const., Inc. v. Directional Rd. Boring, Inc.,438 F. Supp. 2d 696 (E.D. Tex. (holding that expert in construction was not qualified to render an opinion regarding the obligations of parties to construction contracts or other areas of construction law Id. Also, Klepchick should be precluded from rendering legal conclusions regarding the legal impact of specific endorsements (or the lack thereof) under an insurance policy. Id By doing so, Klepchick is impenmissibly invading the province of the Court by construing the terms of the policy. The construction of an insurance policy is a legal issue forthe ourt, and not Klepchick (or anyone else). Evergreen Nat. Indem Co. v. Tan It All, Inc., 111 S.W.3d 669, 675 (Tex. App. Austin 2003, no pet.) Conclusion Klepchick lacks personal knowledge as a basis for much of his testimony. Klepchick renders various opinion testimony for which he is neither qualified and/or for which he lacks a reliable basis. Moreover, Klepchick renders numerous legal conclusions and opinions with tread on the province of this Court. As a result, the Court should strike his testimony accordingly. Prayer Wherefore premises considered, Plaintiffs GPM Houston Properties, Ltd, Triyar Companies, Inc. (f/k/a Triyar Companies, LLC), Triyar Companies, LLC and SJM Realty, Ltd. respectfully pray that, upon hearing hereof, this Court will sustain the foregoing Objections to the Second Affidavit of Brian Klepchick and will award such other and further relief to which Plaintiffs may be justly entitled. Respectfully submitted, /s/ James L. Comell James L. Comell Comell & Pardue State Bar No. 04834800 2727 Allen Parkway Suite 1675 Houston, Texas 77019 Telephone (713) 526 0500 Facsimile (713) 526 7974 jcomell@comell pardue.net Gene F. Creely, II Creely Law Firm PLLC State Bar No. 05060550 Richmond Avenue, Suite 250 Houston, Texas 77006 Telephone (713) 400 8300 Facsimile (713) 400 8299 gcreely@creelylaw.com Attorneys for Plaintiffs CERTIFICATE OF SERVICE Thereby certify that a true and correct copy of the above and foregoing document was served on all counsel of record via hand delivery, U.S. mail, ovemight delivery, fax, and/ore filing, on this the day of May /s/ James L. Comell