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ELECTRONICALLY FILED
COURT OF COMMON PLEAS
Tuesday, January 18, 2011 12:59:38 PM
CASE NUMBER: 2009 CV 03143 Docket ID: 15790209
GREGORY A BRUSH
CLERK OF COURTS MONTGOMERY COUNTY OHIO
IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO
CIVIL DIVISION
ALLOYD INSULATION CO., INC., et : Case No. 09-CV-3143
al., :
: (Judge Wagner)
Plaintiffs, :
:
v. : PLAINTIFFS’ REPLY
: MEMORANDUM
CINCINNATI INSURANCE : REGARDING MOTION TO
COMPANY, et al., : CONTINUE HEARING AND STAY
: DISCOVERY
Defendants. :
_________________________
On December 20, 2010, the Magistrate in the above-captioned case issued a Magistrate’s
Decision granting Defendants’ Motion for Summary Judgment and setting a hearing on attorney
fees and related expenses for February 23, 2011. On January 3, 2011, Plaintiffs filed Objections
to the Magistrate’s substantive decision on the summary judgment motions and in addition
moved this Court to continue the hearing on attorney fees and stay discovery on that issue. The
basis for this Motion was that postponing the hearing on attorney fees until Plaintiffs’ objections
are ruled upon by this Court would conserve the resources of this Court and the parties by
avoiding the possibility of two (2) attorney fee hearings; one as to those incurred prior to
February 23, 2011 and one as to those incurred thereafter.
Defendant, Cincinnati Insurance Company (“Cincinnati”), filed its Memorandum in
Opposition to the Motion to Continue Hearing and Stay Discovery because (1) in Cincinnati’s
opinion, it will succeed on the issue of Plaintiffs’ objections to the Magistrate’s Decision, (2)
Cincinnati is prepared to “respond” to the discovery requests it has received from Alloyd
(seeking detailed information concerning the services received by, and charges incurred by,
Cincinnati, (3) a hearing will inform all parties as to the increased cost of litigation and thereby
aid settlement, and (4) Cincinnati is concerned that delaying a judgment in its favor will
somehow prejudice its ability to collect such judgment (Memorandum in Opposition,
unnumbered pp. 1-2). In fact, none of these four (4) reasons supports this Court’s proceeding to
hearing on attorney fees at this juncture.
The fact that Cincinnati is “confident” that it will succeed on the issue of Plaintiffs’
objections to the Magistrate’s report demonstrates why a hearing on February 23, 2011 will only
increase this Court’s workload. Win or lose, Cincinnati will continue to incur legal expenses
after February 23, 2011. If the scheduled attorney fee hearing is held, and if Cincinnati is
thereafter successful in opposing Plaintiffs’ objections to the Magistrate’s decision, a second
attorney fee hearing will be needed concerning fees incurred after February 23, 2011. If
Cincinnati is not successful in opposing Plaintiffs’ objections, depending on the ultimate
resolution at trial of the substantive claims of this case, a premature February hearing could be a
complete waste of this Court’s resources.
Given the fact that a February 23, 2011 hearing may be a complete waste of this time, or,
at best, require a duplication of this Court’s efforts, this Court should keep the resolution of the
issues of this case in their proper order; namely, deciding with finality the issue of Plaintiff’s
ultimate liability under the bond/indemnity agreement and then proceeding to a decision on
attorney fees, if warranted.
2
Second, Cincinnati asserts that the February 23, 2011 hearing should go forward because
“… it is fully prepared to respond to the requests it has received so far from Alloyd [concerning
the attorney fee issue]… .” (Memorandum in Opposition, unnumbered p. 1). Of course a
“response” may not be the same thing as a substantive answer to the discovery requests, and
given the history in this case and the difficulties involving receiving substantive discovery, it is
conceivable that further discovery issues may be present when those “responses” are received.
More importantly, the discovery responses once received may lead to the need for an expert’s
review of such information or additional discovery, making it highly unlikely that Plaintiffs’ will
be prepared to proceed on the fee issue in February.
The third basis for opposing Plaintiffs’ Motion to Stay is that it will supposedly “…
better inform… all parties… as to the increasing costs of litigation…”, as an incentive to reach a
settlement (Memorandum in Opposition, unnumbered p. 2). In fact, neither party needs such
education. Cincinnati’s Counterclaim itself recited Cincinnati’s claimed right to be reimbursed
for attorney fees which, according to the Counterclaim were $106,078.60 as of June 12, 2009
(Counterclaim, par. 26). In addition, Requests for Admissions were served on Plaintiffs on
December 27, 2010 in which it was disclosed that the attorney fees and related expenses as of
October, 2010 were $148,396. It is unlikely, then, that either Cincinnati or Alloyd will have an
epiphany as to the magnitude of the attorney fee claim as a result of this Court’s conducting a
premature attorney fee hearing.
Last, Cincinnati asserts that an expedited hearing is needed to ensure the collectability of
any judgment. Despite having Alloyd’s financial information, Cincinnati points to no facts
indicating that the indemnitors’ financial condition is in any way dire or that they are in any
respect uncollectible.
3
Cincinnati’s position that an immediate hearing should be conducted on the issue of
attorney fees, while those attorney fees are still being incurred on other pending issues in this
case (namely, the objections to the Magistrate’s Decision), will result in this Court needing to
conduct two (2) hearings on the same issue without an opportunity for Plaintiffs to complete
discovery on that issue. In the interest of fairness and judicial economy, then, this Court should
postpone the February 23, 2011 attorney fee hearing until the other issues in this case are
resolved.
Respectfully submitted,
DUNLEVEY, MAHAN & FURRY
By /s/ David M. Rickert
Richard L. Carr, Jr. (0003108)
David M. Rickert (0010483)
110 North Main Street; Suite 1000
Dayton, Ohio 45402
Phone: 937-223-6003
Fax: 937-223-8550
Email: rlc@dmfdayton.com
Email: dmr@dmfdayton.com
ATTORNEYS FOR PLAINTIFFS
4
CERTIFICATE OF SERVICE
I hereby certify that on January 18, 2011, I electronically filed the foregoing with the
Clerk of the Court by using the ECF system which will send a notice of electronic filing to the
following:
Thomas E. Crafton
Maureen P. Taylor
Alber Crafton, PSC
9300 Shelbyville Road, Suite 1300
Louisville, KY 40222
Attorneys for Cincinnati Insurance Company
/s/ David M. Rickert
David M. Rickert
5
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ELECTRONICALLY FILED COURT OF COMMON PLEAS Tuesday, January 18, 2011 12:59:38 PM CASE NUMBER: 2009 CV 03143 Docket ID: 15790209 GREGORY A BRUSH CLERK OF COURTS MONTGOMERY COUNTY OHIO IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO CIVIL DIVISION ALLOYD INSULATION CO., INC., et : Case No. 09-CV-3143 al., : : (Judge Wagner) Plaintiffs, : : v. : PLAINTIFFS’ REPLY : MEMORANDUM CINCINNATI INSURANCE : REGARDING MOTION TO COMPANY, et al., : CONTINUE HEARING AND STAY : DISCOVERY Defendants. : _________________________ On December 20, 2010, the Magistrate in the above-captioned case issued a Magistrate’s Decision granting Defendants’ Motion for Summary Judgment and setting a hearing on attorney fees and related expenses for February 23, 2011. On January 3, 2011, Plaintiffs filed Objections to the Magistrate’s substantive decision on the summary judgment motions and in addition moved this Court to continue the hearing on attorney fees and stay discovery on that issue. The basis for this Motion was that postponing the hearing on attorney fees until Plaintiffs’ objections are ruled upon by this Court would conserve the resources of this Court and the parties by avoiding the possibility of two (2) attorney fee hearings; one as to those incurred prior to February 23, 2011 and one as to those incurred thereafter. Defendant, Cincinnati Insurance Company (“Cincinnati”), filed its Memorandum in Opposition to the Motion to Continue Hearing and Stay Discovery because (1) in Cincinnati’s opinion, it will succeed on the issue of Plaintiffs’ objections to the Magistrate’s Decision, (2) Cincinnati is prepared to “respond” to the discovery requests it has received from Alloyd (seeking detailed information concerning the services received by, and charges incurred by, Cincinnati, (3) a hearing will inform all parties as to the increased cost of litigation and thereby aid settlement, and (4) Cincinnati is concerned that delaying a judgment in its favor will somehow prejudice its ability to collect such judgment (Memorandum in Opposition, unnumbered pp. 1-2). In fact, none of these four (4) reasons supports this Court’s proceeding to hearing on attorney fees at this juncture. The fact that Cincinnati is “confident” that it will succeed on the issue of Plaintiffs’ objections to the Magistrate’s report demonstrates why a hearing on February 23, 2011 will only increase this Court’s workload. Win or lose, Cincinnati will continue to incur legal expenses after February 23, 2011. If the scheduled attorney fee hearing is held, and if Cincinnati is thereafter successful in opposing Plaintiffs’ objections to the Magistrate’s decision, a second attorney fee hearing will be needed concerning fees incurred after February 23, 2011. If Cincinnati is not successful in opposing Plaintiffs’ objections, depending on the ultimate resolution at trial of the substantive claims of this case, a premature February hearing could be a complete waste of this Court’s resources. Given the fact that a February 23, 2011 hearing may be a complete waste of this time, or, at best, require a duplication of this Court’s efforts, this Court should keep the resolution of the issues of this case in their proper order; namely, deciding with finality the issue of Plaintiff’s ultimate liability under the bond/indemnity agreement and then proceeding to a decision on attorney fees, if warranted. 2 Second, Cincinnati asserts that the February 23, 2011 hearing should go forward because “… it is fully prepared to respond to the requests it has received so far from Alloyd [concerning the attorney fee issue]… .” (Memorandum in Opposition, unnumbered p. 1). Of course a “response” may not be the same thing as a substantive answer to the discovery requests, and given the history in this case and the difficulties involving receiving substantive discovery, it is conceivable that further discovery issues may be present when those “responses” are received. More importantly, the discovery responses once received may lead to the need for an expert’s review of such information or additional discovery, making it highly unlikely that Plaintiffs’ will be prepared to proceed on the fee issue in February. The third basis for opposing Plaintiffs’ Motion to Stay is that it will supposedly “… better inform… all parties… as to the increasing costs of litigation…”, as an incentive to reach a settlement (Memorandum in Opposition, unnumbered p. 2). In fact, neither party needs such education. Cincinnati’s Counterclaim itself recited Cincinnati’s claimed right to be reimbursed for attorney fees which, according to the Counterclaim were $106,078.60 as of June 12, 2009 (Counterclaim, par. 26). In addition, Requests for Admissions were served on Plaintiffs on December 27, 2010 in which it was disclosed that the attorney fees and related expenses as of October, 2010 were $148,396. It is unlikely, then, that either Cincinnati or Alloyd will have an epiphany as to the magnitude of the attorney fee claim as a result of this Court’s conducting a premature attorney fee hearing. Last, Cincinnati asserts that an expedited hearing is needed to ensure the collectability of any judgment. Despite having Alloyd’s financial information, Cincinnati points to no facts indicating that the indemnitors’ financial condition is in any way dire or that they are in any respect uncollectible. 3 Cincinnati’s position that an immediate hearing should be conducted on the issue of attorney fees, while those attorney fees are still being incurred on other pending issues in this case (namely, the objections to the Magistrate’s Decision), will result in this Court needing to conduct two (2) hearings on the same issue without an opportunity for Plaintiffs to complete discovery on that issue. In the interest of fairness and judicial economy, then, this Court should postpone the February 23, 2011 attorney fee hearing until the other issues in this case are resolved. Respectfully submitted, DUNLEVEY, MAHAN & FURRY By /s/ David M. Rickert Richard L. Carr, Jr. (0003108) David M. Rickert (0010483) 110 North Main Street; Suite 1000 Dayton, Ohio 45402 Phone: 937-223-6003 Fax: 937-223-8550 Email: rlc@dmfdayton.com Email: dmr@dmfdayton.com ATTORNEYS FOR PLAINTIFFS 4 CERTIFICATE OF SERVICE I hereby certify that on January 18, 2011, I electronically filed the foregoing with the Clerk of the Court by using the ECF system which will send a notice of electronic filing to the following: Thomas E. Crafton Maureen P. Taylor Alber Crafton, PSC 9300 Shelbyville Road, Suite 1300 Louisville, KY 40222 Attorneys for Cincinnati Insurance Company /s/ David M. Rickert David M. Rickert 5