Upon Consideration of Plaintiff CNH Industrial America, LLC's Motion to Strike Affidavit of Gary Bennett Submitted in Support of Travelers' Motions for Summary Judgment
Brian M. Rostocki, Esquire, and John C. Cordrey, Esquire, Reed Smith LLP, Wilmington, Delaware. Attorneys for CNH Industrial America LLC.
Neal J. Levitsky, Esquire, and Seth A. Niederman, Esquire, Fox Rothschild LLP, Wilmington, Delaware and Richard L. McConnell, Esquire, and Dale E. Hausman, Esquire, Wiley Rein LLP, Washington, DC. Attorneys for The Travelers Indemnity Company.
TRIAL BY JURY OF TWELVE DEMANDED
Eric M. Davis, Judge.
I. Introduction and Procedural History
This is an action for declaratory relief and breach of contract filed by Plaintiff CNH Industrial America LLC ("CNH") against a number of insurance companies, including Travelers Indemnity Company ("Travelers"). The complaint alleges that the defendant insurance companies have failed to honor defense and coverage obligations arising from asbestos-related lawsuits filed against CNH.
On July 21, 2014, CNH served its Re-Notice of Deposition to Travelers pursuant to Rule 30(b)(6) of the Superior Court Rules of Civil Procedure ("Rule 30(b)(6)"), which specified that Travelers produce a corporate designee to testify on eight designated topics. Travelers produced Erik Sandberg as its 30(b)(6) witness on July 25, 2014. Thereafter, Travelers filed summary judgment motions, and partially supported the motions with the Affidavit of Gary C. Bennett (the "Affidavit"). As part of the summary judgment motions, Travelers makes arguments which relate to choice of law issues. Specifically, Travelers argues that the Court should apply Texas law when interpreting and applying the terms of the insurance policies. The Affidavit is intended to support Travelers' choice of law arguments.
On December 10, 2014, CNH filed Plaintiff CNH Industrial America, LLC's Motion to Strike Affidavit of Gary Bennett Submitted in Support of Travelers' Motions for Summary Judgment (the "Motion"). On January 12, 2015, Travelers filed the Opposition of Defendants the Travelers Indemnity Company to Plaintiff CNH Industrial America, LLC's Motion to Strike Affidavit of Gary Bennett Submitted in Support of Travelers' Motions for Summary Judgment (the "Opposition"). Recently, Travelers submitted a letter, dated March 10, 2015, from Seth A. Niederman, Esq., to the Honorable Eric M. Davis (the "Letter"). The Letter provides two additional authorities that support arguments made in the Opposition.
In the course of litigation, CNH deposed Mr. Bennett. CNH provided the Court with a copy of Mr. Bennett's deposition. The Court has reviewed Mr. Bennett's deposition in coming to the decision contained in this Order.
II. Parties' Contentions
CNH makes a number of arguments in support of the Motion. CNH first argues that the Affidavit constitutes a "sham affidavit" because it contradicts the testimony of Mr. Sandberg, Travelers' Rule 30(b)(6) witness. Second, CNH claims that Mr. Bennett lacks personal knowledge to support substantial portions of his affidavit. Third, CNH contends that the Affidavit relies on inadmissible hearsay.
Travelers addresses each of CNH's arguments in the Opposition. Travelers first states that the Affidavit is not a "sham affidavit" because it was not offered to contradict any prior testimony provided by Mr. Bennett. Second, Travelers notes that Mr. Bennett has personal knowledge of the facts in the affidavit because for several years Mr. Bennett was directly involved in underwriting the Tenneco Insurance Program -- the insurance program at issue in these motions. Third, Travelers argues that the documents referenced by Mr. Bennett do not constitute hearsay because they fall within the "ancient documents" exception to hearsay.
A. The Affidavit of Gary C. Bennett is not a "sham ...