Opinion
Index No. 403087/2002
03-07-2022
BROOKLYN UNION GAS COMPANY, Plaintiff, v. CENTURY INDEMNITY CO. and Munich Reinsurance America Inc., Defendants.
Covington & Burling LLP, Washington, D.C. (Jay T. Smith, Eric Bosset, and Michael Lechliter of counsel), and San Francisco, CA (Gretchen Hoff Varner of counsel), for plaintiff. Ford Marrin Esposito Witmeyer & Gleser, LLP, New York, NY (Michael L. Anania and John A. Mattoon of counsel), and BatesCarey LLP, Chicago, IL (Robert J. Bates, Jr., and Maryann C. Hayes of counsel), for defendant Munich Reinsurance America, Inc.
Covington & Burling LLP, Washington, D.C. (Jay T. Smith, Eric Bosset, and Michael Lechliter of counsel), and San Francisco, CA (Gretchen Hoff Varner of counsel), for plaintiff.
Ford Marrin Esposito Witmeyer & Gleser, LLP, New York, NY (Michael L. Anania and John A. Mattoon of counsel), and BatesCarey LLP, Chicago, IL (Robert J. Bates, Jr., and Maryann C. Hayes of counsel), for defendant Munich Reinsurance America, Inc.
Gerald Lebovits, J.
This decision addresses another pretrial motion in limine in the long-running insurance-coverage litigation between Brooklyn Union Gas Company and its excess insurers. This litigation stems from Brooklyn Union Gas Company's government-mandated environmental remediation of the sites of its former manufactured-gas plants (MGPs).
The motion concerns a dispute between Brooklyn Union and defendant Munich Reinsurance America, Inc. Brooklyn Union contends that it purchased excess-insurance coverage in the 1930s and early 1940s from Munich Re's corporate predecessor. According to Brooklyn Union, although the original policy has been lost, Brooklyn Union's expert witness (Jeffrey M. Posner) has assembled secondary evidence establishing the existence and terms of the policy.
Posner replaced a prior expert witness retained by Brooklyn Union on this subject (Douglas L. Talley), after Talley retired pretrial.
Munich Re now moves to exclude Posner from testifying at trial. Munich Re argues that (i) Posner lacks sufficient expertise to opine about whether a policy existed, and (ii) the evidence he relies on is not sufficient to establish the existence and terms of the policy. The motion is denied without prejudice.
DISCUSSION
I. Whether Posner is Qualified to Opine on the Existence and Terms of the Lost Policy
An expert witness's opinion will be admissible only if the expert "possesses the requisite skill, training, education, knowledge, or experience to render the opinion." ( Rosen v Tanning Loft , 16 AD3d 480, 481 [2d Dept 2005].) Munich Re contends that Posner has not shown he has the necessary knowledge and experience to opine on the existence and terms of the putative policy at issue here. (See NYSCEF No. 299 at 3-5.) This court disagrees.
Posner represents in his expert report that he has decades of experience in the insurance industry. (See NYSCEF No. 298 at 3.) This experience includes, among other things, negotiating and purchasing "many forms of insurance for large companies, including primary, umbrella, and excess liability insurance"; handling "and managing liability claims for insurers and policy holders"; seeking "coverage for environmental and asbestos-related claims from numerous primary, umbrella and excess insurers that issued policies to from the 1950s to the mid-1980s"; and "assessing evidence of lost historical insurance policies and determining the likely terms and conditions of such lost policies." (Id. ) This experience qualifies Posner as an expert for purposes of evaluating secondary evidence of the existence and terms of the alleged excess policy at issue.
Munich Re contends that because Posner's report does not show he has "any experience or expertise with respect to industry practice, coverage terms, etc., prior to World War II" (when the claimed policy here would have been issued), his opinion about the policy is not admissible. (NYSCEF No. 299 at 5.) Munich Re does not, in other words, dispute Posner's missing-policy qualifications in general. Instead, it challenges only his knowledge and expertise about reconstructing missing excess property-damage policies from the 1930s and 1940s (as opposed to policies issued later). As Brooklyn Union argues, though, criticizing expert testimony based on the expert's "alleged lack of knowledge in a particular area of expertise goes to the weight and not the admissibility of the testimony." ( Board of Mgrs. of 195 Hudson St. Condominium v 195 Hudson St. Assoc., LLC , 63 AD3d 523, 524 [1st Dept 2009] ; accord Matter of New Cr. Bluebelt, Phase 4 , 122 AD3d 859, 863-864 [2d Dept 2014]. ) Munich Re's argument that Posner lacks the necessary period-specific knowledge to opine about the existence and terms of the putative excess policy is an appropriate subject for cross-examination. It is not a ground to exclude Posner's testimony altogether.
This court does not agree with Munich Re's assertion on reply that "Brooklyn Union's position" on this point is "ludicrous." (NYSCEF No. 304 at 2.)
Schechter v 3320 Holding LLC (64 AD3 446 [1st Dept 2009]), cited by Munich Re on reply (see NYSCEF No. 304 at 4), is inapposite. There, the divide between the majority and the dissent concerned whether the would-be witness's job experience qualified him as an expert at all, not with whether his demonstrated expertise in one subject sufficed to permit him to opine on a closely related subject. (Compare 64 AD3d at 449-450 [majority opn], with id. at 453 [dissenting opn].) Nor does this court agree that the gap, if any, between the subjects of Posner's professional experience and the subject of the disputed testimony is comparable to the gaps found in the other decisions cited by Munich Re on reply. None of those decisions, in any event, was issued by the Appellate Division, First Department. (See NYSCEF No. 304 at 4-5 n 4.)
Munich Re misplaces its reliance on the decision of the U.S. District Court for the Northern District of Oklahoma in Canal Insurance Co. v Montello . (See NYSCEF No. 299 at 4, citing 2012 WL 4891699, at *3-*9 [ND Okla Oct. 15, 2012], affd 632 F Appx. 448, 455-456 [10th Cir 2015].) There, the district court found the insured's expert to be "generally qualified to render an expert opinion as to the existence, terms, and conditions of the missing policies." (See Montello , 2012 WL 4891699, at *4.) The court then went on to exclude the expert's testimony for failing to satisfy the reliable-methodology criterion of Daubert v Merrell Dow Pharmaceuticals, Inc. (509 US 579, 592-594 [1993] ). (See 2012 WL 4891699, at *4, *5-*9.) New York law does not impose the requirements of Daubert .
II. Whether the Evidence on which Posner Relies Sufficiently Supports His Opinion
Munich Re also argues that even if Posner is qualified, the documents on which he relies "are patently insufficient to support his conclusions." (NYSCEF No. 299 at 5.)
Munich Re's argument on this point is two-fold: that the documents on which Posner relies should be "exclude[d] from trial" as "non-probative" (NYSCEF No. 304 at 2); and, relatedly, that these documents are insufficient to support a conclusion that Munich Re's predecessor issued excess policies to Brooklyn Union on the claimed terms and conditions (see NYSCEF No. 299 at 14-15). But a challenge to a relevant document's probative value is not, standing alone, a basis to exclude the document from evidence altogether. More broadly, contending that relevant evidence is insufficient to support a party's argument in favor of liability is much more akin to an argument made at summary judgment, rather than in a pretrial evidentiary motion. Munich Re did not, however, move for summary judgment. And, as Munich Re concedes, this motion was filed years after the dispositive-motion deadline expired.
Munich Re contends that if this court deems the current motion an untimely summary-judgment motion, the court should exercise its discretion to treat the post-note discovery in this action as good cause for Munich Re's delay. (See NYSCEF No. 304 at 2.) Munich Re does not, however, explain why post-note discovery on subjects unrelated to the alleged missing policy should excuse a delay in filing a missing-policy dispositive motion. Put differently, Brooklyn Union's prior missing-policy expert, Talley, prepared an report in January 2017 that used the same basic set of documents as Posner, and reached the same conclusions. (See NYSCEF No. 302.) Munich Re was able to depose Talley in December 2017. (See NYSCEF No. 303.) Yet Munich Re did not then move for summary judgment.
Brooklyn Union thus has a strong argument that this aspect of Munich Re's motion should be denied at the threshold as untimely and procedurally improper. Even setting this argument aside, though, this court concludes that Munich Re's critiques of the probative value of the documents supporting Posner's opinion go to the weight of the opinion, not its admissibility. These critiques should be left for cross-examination at trial (or for the direct examination of any rebuttal expert on this topic properly called by Munich Re).
Munich Re argues that because "Brooklyn Union cannot produce copies of any alleged policy, it must establish its existence and terms via competent, admissible and reliable secondary evidence." (NYSCEF No. 299 at 6, citing Schozer v William Penn Life Ins. Co. , 84 NY2d 639, 644 [1994].) True; but only somewhat helpful to Munich Re. This aspect of Schozer (and decisions applying it) are not, as Munich Re attempts to suggest, about whether secondary evidence concerning a missing document is probative. Instead, they address whether that secondary evidence is admissible, authentic, and an accurate description what it purports to portray. (See Schozer , 84 NY2d at 645 [holding that the proponent of secondary evidence must preliminarily establish that it "is authentic and correctly reflects the contents of the original"] [internal quotation marks omitted]; accord 76-82 St. Marks, LLC v Gluck , 147 AD3d 1011, 1012-1013 [2d Dept 2017] [same]; Bell Atl. Yellow Pages v Havana Rio Enters., Inc. , 184 Misc 2d 863, 867-868 [Civ Ct, NY County 2000] [same]; see also Hypo Holdings, Inc. v Feuer , 68 AD3d 722, 722-723 [2d Dept 2009] [excluding proffered secondary evidence as inadmissible].) Schozer does not provide authority for Munich Re's position that Posner's opinion should be excluded because a given document or documents do not bear the probative weight Posner places on them.
At the same time, Munich Re also asserts that some of the documents (particularly various accounting ledgers from the 1930s) do not support Posner's opinion because they are illegible. (See NYSCEF No. 299 at 7; NYSCEF No. 304 at 6 & n 5.) That assertion fits more naturally within Schozer ’s reliable-and-accurate requirement. Brooklyn Union disputes Munich Re's contention that these documents are illegible. (See NYSCEF No. 299 at 8.) At least some of the documents are more easily made out in the exhibits to the report of Brooklyn Union's former expert, Talley. (Compare e.g. NYSCEF No. 302, at 111-112, 121-135 [Talley report], with NYSCEF No. 298, at 95-113 [Posner report].) But even in the Talley exhibits, some documents remain very difficult to read—at least as electronically reproduced for purposes of filing on NYSCEF. (See NYSCEF No. 302 at 163-172.) This court declines, however, to decide definitively now whether these documents are sufficiently legible to support Brooklyn Union's claims about the existence of the alleged policy. Munich Re's motion to exclude is denied without prejudice to renewal at trial, once the court has had the opportunity to view the original documents or the best-quality reproductions available.
Accordingly, for the foregoing reasons, it is
ORDERED that Munich Re's motion to preclude is denied without prejudice.