Ms Amlin Corporate Member Ltd et al v. Michael's Management Services Inc et al

MOTION for Partial Summary Judgment

M.D. Ga.April 25, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION MS AMLIN CORPORATE MEMBER, LTD., ATRIUM 5 LIMITED, CHAUCER CORPORATE CAPITAL (NO. 3) LIMITED, ARK CORPORATE MEMBER LIMITED, AEGIS ELECTRIC & GAS INTERNATIONAL SERVICES LTD, Plaintiffs, v. MICHAELS MANAGEMENT SERVICES, INC. F/K/A JILLDEN REALTY MANAGEMENT COMPANY; FORT BENNING FAMILY COMMUNITIES, LLC; COLONEL JOHN CALE BROWN, SR. AND DARLENA BROWN, individually and as parents and next friend of “JC,” a minor AND J.C., a minor, Defendants. CIVIL ACTION NO.: 4:16-cv-301 PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT COME NOW, Plaintiffs Amlin Corporate Member Ltd. (“Amlin”), Atrium 5 Limited (“Atrium”), Chaucer Corporate Capital (No. 2) Limited (“Chaucer”), Ark Corporate Member Limited (“Ark”), and Aegis Electric & Gas International Services, Ltd. (“Aegis”) (collectively, “Plaintiffs”), by and through counsel, and pursuant to Fed. R. Civ. P. 56 and L.R. 56, hereby file this, their Motion for Partial Summary Judgment, as follows: In this declaratory judgment action, Plaintiffs seek a declaration that a policy of insurance to which they subscribed precludes coverage for an underlying lawsuit filed by Lt. Col. John Cale Brown, Sr. and Darlena Brown, except to the extent of a $500,000 limit for unintentional failure to disclose pollutants. The Court should grant Plaintiffs’ Motion for Partial Summary Judgment because the relevant policy is unambiguous. Case 4:16-cv-00301-CDL Document 32 Filed 04/25/17 Page 1 of 3 2 In support of this Motion for Summary Judgment, Plaintiffs submit: 1. Plaintiffs’ Brief in Support of Their Partial Motion for Summary Judgment; 2. Plaintiffs’ Statement of Material Facts for Which There is No Genuine Issue To Be Tried; and 3. The Parties’ Proposed Scheduling Order (attached as Ex. “A” to the accompanying Statement of Material Facts). In the unlikely event that the Court denies Plaintiffs’ Motion, Plaintiffs request discovery as to the mutual underwriting of the policy and the sophistication of the insured. Respectfully submitted, this 25th day of April 2017. 1180 West Peachtree St., Suite 1600 Atlanta, GA 30309 404.214.1250 (Telephone) 404.214.1251 (Facsimile) pfields@fieldshowell.com gmast@fieldshowell.com crader@fieldshowell.com FIELDS HOWELL LLP /s/ Caitlin M. Crader Paul L. Fields, Jr. Georgia Bar No.: 003420 Gregory L. Mast Georgia Bar No.: 476191 Caitlin M. Crader Georgia Bar No.: 892010 Attorneys for Plaintiffs Case 4:16-cv-00301-CDL Document 32 Filed 04/25/17 Page 2 of 3 3 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION MS AMLIN CORPORATE MEMBER, LTD., ATRIUM 5 LIMITED, CHAUCER CORPORATE CAPITAL (NO. 3) LIMITED, ARK CORPORATE MEMBER LIMITED, AEGIS ELECTRIC & GAS INTERNATIONAL SERVICES LTD, Plaintiffs, v. MICHAELS MANAGEMENT SERVICES, INC. F/K/A JILLDEN REALTY MANAGEMENT COMPANY; FORT BENNING FAMILY COMMUNITIES, LLC; LT. COL. JOHN CALE BROWN, SR. AND DARLENA BROWN, individually and as parents and next friend of “JC,” a minor AND BROWN, JR., a minor, Defendants. CIVIL ACTION NO.: 4:16-cv-301 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT was served via CM/ECF on all attorneys of record. This 25th day of April, 2017. 1180 West Peachtree St., Suite 1600 Atlanta, GA 30309 404.214.1250 (Telephone) 404.214.1251 (Facsimile) FIELDS HOWELL LLP /s/ Caitlin M. Crader Paul L. Fields, Jr. Georgia Bar No.: 003420 Gregory L. Mast Georgia Bar No.: 476191 Caitlin M. Crader Georgia Bar No.: 892010 Attorneys for Plaintiffs Case 4:16-cv-00301-CDL Document 32 Filed 04/25/17 Page 3 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION MS AMLIN CORPORATE MEMBER, LTD., ATRIUM 5 LIMITED, CHAUCER CORPORATE CAPITAL (NO. 3) LIMITED, ARK CORPORATE MEMBER LIMITED, AEGIS ELECTRIC & GAS INTERNATIONAL SERVICES LTD, Plaintiffs, v. MICHAELS MANAGEMENT SERVICES, INC. F/K/A JILLDEN REALTY MANAGEMENT COMPANY; FORT BENNING FAMILY COMMUNITIES, LLC; COLONEL JOHN CALE BROWN, SR. AND DARLENA BROWN, individually and as parents and next friend of “JC,” a minor AND J.C., a minor, Defendants. CIVIL ACTION NO.: 4:16-cv-301 BRIEF IN SUPPORT OF PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT COME NOW, Plaintiffs Amlin Corporate Member Ltd. (“Amlin”), Atrium 5 Limited (“Atrium”), Chaucer Corporate Capital (No. 2) Limited (“Chaucer”), Ark Corporate Member Limited (“Ark”), and Aegis Electric & Gas International Services, Ltd. (“Aegis”) (collectively, “Plaintiffs”), by and through counsel, and pursuant to Fed. R. Civ. P. 56 and L.R. 56, hereby file this, their Brief in Support of their Motion for Partial Summary Judgment, showing the Court as follows: I. INTRODUCTION Under the subject insurance policy, coverage is limited to $500,000, because the pollution exclusion unambiguously limits coverage for lead exposure. The Court should grant Underwriters summary judgment on this issue in light of Coon v. The Medical Center, Inc., No. S17G0695, 2017 Case 4:16-cv-00301-CDL Document 32-1 Filed 04/25/17 Page 1 of 12 2 WL 857036, at *9 (Ga. Mar. 6, 2017), which establishes that the common law construed by Georgia court applies, and See Ga. Farm Bureau v. Smith, 298 Ga. 716, 721, 784 S.E.2d 422 (2016), which requires the enforcement of the pollution exclusion to lead exposure. Fort Benning Family Communities, LLC (“FBFC”) owned certain properties in Fort Benning, Georgia, which were operated by Michael’s Management Services, Inc. (“Michael’s”). The underlying plaintiffs resided at those properties and have filed a suit contending that FBFC and Michael’s are liable to them for injuries their son sustained due to exposure to lead paint at the properties. Plaintiffs are insurers of Michael’s, and have sought a declaration as to their rights and obligations with respect to the lawsuit against FBFC, as an additional insured, and Michael’s. Plaintiffs are entitled to partial summary judgment on their claims – in particular – that the underlying plaintiffs’ lawsuit is barred from coverage by the policy’s pollution exclusion, except to the extent of a $500,000 sublimit for unintentional failure to disclose the existence of pollutants. Defense costs erode, or reduce, the available limit of coverage. The relevant insurance policy was delivered in New Jersey. Therefore, under Georgia’s choice of law principles, New Jersey law applies to the interpretation of the policy. However, as explained herein, where, as here, there is no New Jersey statute on point, this Court should apply the common law as interpreted by Georgia courts. Lead is considered a “pollutant” under the common law as interpreted by Georgia’s courts, so there can be no question that the underlying lawsuit is barred from coverage (except to the extent it falls within the $500,000 eroding sublimit for unintentional failure to disclose the existence of pollutants). Accordingly, Plaintiffs respectfully request that the Court grant them partial summary judgment on this issue. Case 4:16-cv-00301-CDL Document 32-1 Filed 04/25/17 Page 2 of 12 3 II. BACKGROUND This matter involves an insurance coverage dispute arising out of a lawsuit filed by Colonel John Cale Brown, Sr., Darlena Brown and their minor son, Brown, Jr. (collectively, the “Browns”), against FBFC and Michael’s, styled Lt. Col. John Cale Brown, Sr. and Darlena Brown v. Fort Benning Family Communities, LLC, d/n/a Villages of Benning and Michaels Management Services, Inc., in the United States District Court for the Middle District of Georgia, Columbus Division, Civil Action No. 4:14cv-279(CDL) (the “Underlying Lawsuit”). In the Underlying Lawsuit, the Browns allege that FBFC owned properties located at 600 and 602 Wickersham Avenue, Fort Benning, Georgia, and that Michael’s was contracted to manage those properties. ECF No. 1-3 ¶ 4. The Browns contend that toxic levels of lead at these properties injured their son. Id. ¶ 17, 19. They assert causes of action for negligence, nuisance, and fraud. See generally id. The Browns seek compensatory and punitive damages. Id. p. 28. Plaintiffs are insurers that subscribed to certificate of insurance no. 472192, which was issued to Interstate Realty Management Company and which provided certain liability coverage to Michael’s for the policy period June 1, 2014, through June 1, 2015 (the “Policy”). ECF No. 1- 6. The Policy indicates that the principal address of the named insured, is in Marlton, New Jersey.1 ECF No. 1-6, p. 1 of 68. The Policy precludes coverage for any damages or claims arising out of or in any way involving the: Actual, alleged or threatened formation, discharge, dispersal, seepage, release or escape of any Pollutants; the presence of Pollutants; and any direction, order or request to test for, monitor, clean up, remove, contain, treat, detoxify, or neutralize Pollutants, or in any way respond to or assess the effects of Pollutants. 1 The Named Insured was Interstate Realty Management, but it was amended by endorsement to add Michael’s. The address did not change, however. ECF No. 1-6, p. 44 of 68. Case 4:16-cv-00301-CDL Document 32-1 Filed 04/25/17 Page 3 of 12 4 ECF No. 1-6, p. 9 of 68 (emphasis in original). Under the Policy, Pollutants mean any sold, liquid, gaseous or thermal irritant, contaminant or toxin including, but not limited to smoke, vapor, soot, fumes, dust fibers, spores, Fungi, germs, acids, alkalis, chemicals, metals, silica, lead, lead compounds or materials containing lead, asbestos compounds or materials containing asbestos, radon, waste or any like substances. ECF No. 1-6, p. 59 of 68 (emphasis in original). The Policy contains a limited carve-out to the Pollution Exclusion for: This Exclusion shall not apply to Claims for Wrongful Acts involving the Insured’s unintentional failure to disclose the existence of Pollutants, subject to a sub-limit of liability of $500,000 each Claim and $500,000 in the aggregate for the Policy Period… ECF No. 1-6, p. 60 of 68 (emphasis in original). The pollution exclusion carve-out is an eroding limit, meaning that defense costs reduce the available coverage. ECF No. 1-6, p. 5 of 68 (“Claim Expenses are a part of, and not in addition to, the applicable Limit of Liability, and Claim Expenses by Underwriters will reduce the remaining and available Limit of Liability.”); see also ECF No. 1-6, p. 6 of 68 (explaining Claim Expenses include “[r]easonable and necessary attorney fees and costs”). Plaintiffs filed this action, seeking a declaration from the Court regarding their rights and duties under the Policy with respect to the Underlying Lawsuit. ECF No. 1. Among other requests for relief, Plaintiffs seek a declaration that the Policy’s Pollution Exclusion precludes coverage, except to the extent of a $500,000 eroding limit for unintentional failure to disclose pollutants. ECF No.1 ¶¶ 52-58. III. APPLICABLE STANDARD Summary judgment is proper when “there is no genuine issue as to any material fact and... the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2006); see also Bartholomew v. AGL Res., Inc., 361 F.3d 1333, 1337 (11th Cir. 2004). The evidence is viewed Case 4:16-cv-00301-CDL Document 32-1 Filed 04/25/17 Page 4 of 12 5 in the light most favorable to the non-moving party. Id.; see also Boim v. Fulton County Sch. Dist., 494 F.3d 978, 982 (11th Cir. 2007). To determine whether there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law, the Court may examine “materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials…” Fed. R. Civ. P. 56(c)(1)(A). IV. LEGAL ARGUMENT As explained herein, the common law, as interpreted by Georgia courts, applies to the interpretation of the Policy’s Pollution Exclusion. Under Georgia law, the Policy’s Pollution Exclusion unambiguously excludes coverage for the Underlying Lawsuit, leaving only the $500,000 eroding sublimit for unintended failure to disclose the existence of pollutants. Accordingly, Plaintiffs are entitled to partial summary judgment on this issue. A. Choice of Law “When faced with a choice of law issue, a federal court sitting in diversity must look for its resolution in the conflict rules of the forum state.” Gen. Tel. Co. of the Southeast v. Trimm, 706 F.2d 1117, 1119 (11th Cir. 1983). As Georgia is the forum state, this Court must look to Georgia’s rules on resolving conflicts of law. In this case, Georgia’s rules mandate that the common law as construed by Georgia courts be applied. Generally, Georgia courts adhere to the traditional lex loci contractus doctrine, applying the law of the place where the contract is “made,” which in most instances is the place of delivery. Gen. Telephone Co. of Southeast v. Trimm, 252 Ga. 95, 95, 11 S.E.2d 460 (1984). An insurance contract such as the Policy is considered to be made at the place where it is delivered. Lima Delta Co. v. Global RI-022 Aerospace, Inc., 338 Ga. App. 40, 46, 789 S.E.2d 230 (2016) (internal Case 4:16-cv-00301-CDL Document 32-1 Filed 04/25/17 Page 5 of 12 6 citations and quotations omitted). Here, the Policy was delivered to the named insured in New Jersey. ECF No. 1-6, p. 1 of 68. Therefore, New Jersey law applies under the rule of lex loci contractus. This does not end the inquiry, however. Although it had been called into question in recent years, the Georgia Supreme Court recently affirmed Georgia’s adherence to the “presumption of identity” principle. See Coon v. The Medical Center, Inc., No. S17G0695, 2017 WL 857036, at *9 (Ga. Mar. 6, 2017). As the Coon Court explained, the Georgia Supreme Court distinguishes between statutes and the common law in choice of law issues. Georgia courts will defer to other states’ statutes in determining the laws of that state. However, in the absence of a statute, “at least with respect to a state where the common law is in force, a Georgia court will apply the common law as expounded by the courts of Georgia.” Id. at *6. The Georgia Supreme Court “will follow this approach if the other state was one of, or formed from the territory of one of, the original 13 colonies that inherited the common law of England.” Id. at *n.5 (citing Trustees of Jesse Parker Williams Hosp. v. Nisbet, 189 Ga. 807, 811, 7 S.E.2d 737 (1940)). The Coon Court noted that this approach may seem “anachronistic,” but “the prevailing view at the time the doctrine was established was that there is one common law that can be properly discerned by wise judges, not multiple common laws…” Id. at *6. The Georgia Supreme Court has followed this approach nearly unbroken, for over a century. Id. at *7 (noting one notable exception, which has been expressly overruled). “Until it becomes clear that a better rule exists, [the Georgia Supreme Court] will adhere to [its] traditional approach.” Id. (quoting Trimm, 252 Ga. at 96). Because the “presumption of identity” principle provides a workable rule, and no better rule has come along, the Georgia Supreme Court reaffirmed Georgia’s traditional choice-of-law principles. Id. Case 4:16-cv-00301-CDL Document 32-1 Filed 04/25/17 Page 6 of 12 7 B. Georgia Law Applies to this Dispute In this case, there is no statute on point governing the interpretation of the Policy’s Pollution Exclusion. Thus, the common law must be applied. In both Georgia and New Jersey, the common law is in force. Both were states formed from one of the original 13 colonies that inherited the common law of England. As a result, there can be no question that the “presumption of identity” principle applies and the common law, as interpreted by Georgia courts, must be applied to this dispute. C. Coverage is Barred by the Pollution Exclusion, Except for a $500,000 Sub-Limit for Unintentional Failure to Disclose the Existence of Pollutants The Policy precludes coverage for any damages or claims arising out of or in any way involving the: Actual, alleged or threatened formation, discharge, dispersal, seepage, release or escape of any Pollutants; the presence of Pollutants; and any direction, order or request to test for, monitor, clean up, remove, contain, treat, detoxify, or neutralize Pollutants, or in any way respond to or assess the effects of Pollutants. ECF No. 1-6, p. 9 of 68 (emphasis in original). Under the Policy, lead, lead compounds and materials containing lead are explicitly identified as Pollutants. Id. at p. 59 of 68 (emphasis in original). The Underlying Lawsuit is based on Brown, Jr.’s exposure to lead, so the Pollution Exclusion applies. Further, even where lead is not expressly identified as a “pollutant,” claims arising from injuries suffered due to exposure to lead paint are excluded by pollution exclusions. See Ga. Farm Bureau v. Smith, 298 Ga. 716, 721, 784 S.E.2d 422 (2016). The Georgia Supreme Court in Smith interpreted a policy that contained a pollution exclusion substantially identical to the first part of the Policy’s Pollution Exclusion. The policy in Smith defined “pollutant” as “any solid, liquid, Case 4:16-cv-00301-CDL Document 32-1 Filed 04/25/17 Page 7 of 12 8 gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.” Id. at 717. Unlike the Policy, however, the Smith policy did not expressly identify lead as a “pollutant.” The Georgia Supreme Court explained that “Georgia courts have repeatedly applied these clauses outside the context of traditional environmental pollution.” Id. at 720. Notably, the pollutant at issue need not be explicitly named in the policy for a pollution exclusion to be enforced. Id. Applying this precedent, the Smith court found that “lead present in paint unambiguously qualifies as pollutant.” Id. Therefore, a tenant’s claim against her landlord for injuries her child allegedly sustained as result of ingesting lead from paint was excluded from coverage by the plain language of the policy’s pollution exclusion clause. Id. at 721. As in Smith, the Underlying Lawsuit arises out of the Browns’ contentions that toxic levels of lead at their residences injured their son. Under Georgia law, lead is a “pollutant” that is excluded by the plain language of the absolute pollution exclusion. Moreover, in this case, lead is expressly identified as a “pollutant” in the Policy. Thus, there can be no reasonable question that the Pollution Exclusion applies to the Underlying Lawsuit. Plaintiffs further note that the Policy contains a limited carve-out to the Pollution Exclusion as follows: This Exclusion shall not apply to Claims for Wrongful Acts involving the Insured’s unintentional failure to disclose the existence of Pollutants, subject to a sub-limit of liability of $500,000 each Claim and $500,000 in the aggregate for the Policy Period… ECF No. 1-6, p. 60 of 68. Therefore, there is only coverage under the Policy for claims involving lead exposure to the extent they allege unintentional failure to disclose the existence of lead. Any allegations Case 4:16-cv-00301-CDL Document 32-1 Filed 04/25/17 Page 8 of 12 9 involving intentional conduct or fraud would be precluded from coverage by the Pollution Exclusion, as explained above. Consequently, Plaintiffs request that the Court grant them summary judgment on their request for declaratory relief that there is no coverage for the Underlying Lawsuit pursuant to the amended Pollution Exclusion, except to the extent the Underlying Lawsuit alleges unintentional failure to disclose the presence of lead at 600 and/or 602 Wickersham Avenue. Plaintiffs further request that the Court find that, to the extent such limited coverage exists, the eroding sublimit of $500,000 applies. D. If the Court Finds New Jersey Law Applies or That Any Potential Ambiguity Exists, Plaintiffs Request Limited Discovery As discussed with the Court during the scheduling conference, Plaintiffs believe that they are entitled to partial summary judgment. In the unlikely event that the Court disagrees, Plaintiffs respectfully ask for limited discovery regarding the insured’s participating in the drafting of the subject provision, the insured’s expectations, and the sophistication of the insured. Courts across the country and in particular, New Jersey, have repeatedly held that the rule construing insurance policies against insurers is inapplicable where the insured participated in the drafting of the policy or was otherwise sophisticated. See e.g. Benjamin Moore & Co. v. Aetna Cas. & Sur. Co., 179 N.J. 87, 102, 843 A.2d 1094 (2004) (noting exception to rule that doubts ordinarily resolved against insurer, where insured does “not suffer from the same inadequacies as the ordinary unschooled policyholder and that [has] participated in the drafting of the insurance contract.”) (internal citation omitted); Dare Investments, LLC v. Chicago Title Ins. Co., No. 10- 6088 (DRD) 2011 WL 5513196, at *5-6 (D.N.J. Nov. 10, 2011) (holding reasonable expectations doctrine applies where an insurer unilaterally prepares policy and insured is a layman, such that Case 4:16-cv-00301-CDL Document 32-1 Filed 04/25/17 Page 9 of 12 10 the doctrine did not apply where the insured was a sophisticated entity that negotiated terms of insurance policy). Although we are unaware of a Georgia case addressing this issue directly, the rule construing ambiguities against the drafter is predicated on the assumption that insurance policies are contracts of adhesion. See e.g. Hurst v. Grange Mut. Cas. Co., 266 Ga. 712, 716, 470 S.E.2d 659 (1996) (explaining an parties are bound by plain and unambiguous terms of policy but if provision is susceptible to two or more constructions, it is ambiguous and the contract will be construed against the insurer as the drafter of the contract); Nationwide Mut. Fire Ins. Co. v. Tomlin, 181 Ga. app. 413, 419, 352 S.E.2d 612 (1986) (“[i]n the marketplace of insurance contracts made with lay people, the ordinary use of words, the meaning generally ascribed to the public, should be given because the insureds have no choice of words since they do not participate in drafting. The law construes the word of contracts against the drafter for that reason.”) (internal citation omitted); Rentrite, Inc. v. Sentry Select Ins. Co., 293 Ga. App. 643, 647, 667 S.E.2d 888 (2008) (explaining because “insurance policies are contracts of adhesion, drawn by the legal draftsman of the insurer, they are to be construed as reasonably understood by an insured.”) (quoting First Financial Ins. Co. v. American Sandblasting Co., 223 Ga. App. 232, 232-33, 477 S.E.2d 390 (1996)). This is not a case of a lay insured who entered into a contract of adhesion. For this reason, should the Motion be denied, Plaintiffs believe they would be entitled to discovery regarding Michael’s involvement with the drafting of the Policy and/or its sophistication. V. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court grant its Motion for Partial Summary Judgment. If the Motion is denied, Plaintiffs respectfully request that the Court Case 4:16-cv-00301-CDL Document 32-1 Filed 04/25/17 Page 10 of 12 11 permit it to conduct discovery regarding the insured’s drafting of the subject provision, the insured’s expectations, and the sophistication of the insured. Respectfully submitted, this 25th day of April 2017. 1180 West Peachtree St., Suite 1600 Atlanta, GA 30309 404.214.1250 (Telephone) 404.214.1251 (Facsimile) pfields@fieldshowell.com gmast@fieldshowell.com crader@fieldshowell.com FIELDS HOWELL LLP /s/ Caitlin M. Crader Paul L. Fields, Jr. Georgia Bar No.: 003420 Gregory L. Mast Georgia Bar No.: 476191 Caitlin M. Crader Georgia Bar No.: 892010 Attorneys for Plaintiffs Case 4:16-cv-00301-CDL Document 32-1 Filed 04/25/17 Page 11 of 12 12 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION MS AMLIN CORPORATE MEMBER, LTD., ATRIUM 5 LIMITED, CHAUCER CORPORATE CAPITAL (NO. 3) LIMITED, ARK CORPORATE MEMBER LIMITED, AEGIS ELECTRIC & GAS INTERNATIONAL SERVICES LTD, Plaintiffs, v. MICHAELS MANAGEMENT SERVICES, INC. F/K/A JILLDEN REALTY MANAGEMENT COMPANY; FORT BENNING FAMILY COMMUNITIES, LLC; LT. COL. JOHN CALE BROWN, SR. AND DARLENA BROWN, individually and as parents and next friend of “JC,” a minor AND BROWN, JR., a minor, Defendants. CIVIL ACTION NO.: 4:16-cv-301 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing BRIEF IN SUPPORT OF PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT was served via CM/ECF on all attorneys of record. This 25th day of April, 2017. 1180 West Peachtree St., Suite 1600 Atlanta, GA 30309 404.214.1250 (Telephone) 404.214.1251 (Facsimile) FIELDS HOWELL LLP /s/ Caitlin M. Crader Paul L. Fields, Jr. Georgia Bar No.: 003420 Gregory L. Mast Georgia Bar No.: 476191 Caitlin M. Crader Georgia Bar No.: 892010 Attorney for Plaintiffs Case 4:16-cv-00301-CDL Document 32-1 Filed 04/25/17 Page 12 of 12 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION MS AMLIN CORPORATE MEMBER, LTD., ATRIUM 5 LIMITED, CHAUCER CORPORATE CAPITAL (NO. 3) LIMITED, ARK CORPORATE MEMBER LIMITED, AEGIS ELECTRIC & GAS INTERNATIONAL SERVICES LTD, Plaintiffs, v. MICHAELS MANAGEMENT SERVICES, INC. F/K/A JILLDEN REALTY MANAGEMENT COMPANY; FORT BENNING FAMILY COMMUNITIES, LLC; COLONEL JOHN CALE BROWN, SR. AND DARLENA BROWN, individually and as parents and next friend of “JC,” a minor AND J.C., a minor, Defendants. CIVIL ACTION NO.: 4:16-cv-301 PLAINTIFFS’ STATEMENT OF MATERIAL FACTS FOR WHICH THERE IS NO GENUINE ISSUE TO BE TRIED COME NOW Plaintiffs Amlin Corporate Member Ltd. (“Amlin”), Atrium 5 Limited (“Atrium”), Chaucer Corporate Capital (No. 2) Limited (“Chaucer”), Ark Corporate Member Limited (“Ark”), and Aegis Electric & Gas International Services, Ltd. (“Aegis”) (collectively, “Plaintiffs”), by and through counsel and pursuant to Fed. R. Civ. P. 56 and L.R. 56, hereby file this, their Statement of Material Facts for which there is no Genuine Issue to be Tried, as follows: 1. Colonel John Cale Brown, Sr., Darlena Brown and their minor son (collectively, the “Browns”) filed a lawsuit against Fort Benning Family Communities, LLC (“FBFC”) and Michael’s Management Services, Inc. (“Michael’s”), styled Lt. Col. John Cale Brown, Sr. and Darlena Brown v. Fort Benning Family Communities, LLC, d/n/a Villages of Benning and Case 4:16-cv-00301-CDL Document 32-2 Filed 04/25/17 Page 1 of 5 2 Michaels Management Services, Inc., in the United States District Court for the Middle District of Georgia, Columbus Division, Civil Action No. 4:14cv-279(CDL) (the “Underlying Lawsuit”). 2. In the Underlying Lawsuit, the Browns allege that FBFC owned properties located at 600 and 602 Wickersham Avenue, Fort Benning, Georgia, and that Michael’s was contracted to manage those properties. ECF No. 1-3 ¶ 4. 3. The Browns contend that toxic levels of lead at these properties injured their son. Id. ¶ 17, 19. 4. The Browns assert causes of action for negligence, nuisance, and fraud against FBFC and Michael’s in the Underlying Lawsuit. See generally id. 5. The Browns seek compensatory and punitive damages in the Underlying Lawsuit. Id. p. 28. 6. Plaintiffs are insurers that subscribed to certificate of insurance no. 472192, which was issued to Interstate Realty Management Company and which provided certain liability coverage to Michael’s for the policy period June 1, 2014, through June 1, 2015 (the “Policy”). ECF No. 1-6. 7. The Policy indicates that the principal address of the named insured, Interstate Realty, Management Company, is in Marlton, New Jersey. ECF No. 1-6, p. 1 of 68. 8. The Policy was delivered in New Jersey. Id. 9. The Policy precludes coverage for any damages or claims arising out of or in any way involving the: Actual, alleged or threatened formation, discharge, dispersal, seepage, release or escape of any Pollutants; the presence of Pollutants; and any direction, order or request to test for, monitor, clean up, remove, contain, treat, detoxify, or neutralize Pollutants, or in any way respond to or assess the effects of Pollutants. ECF No. 1-6, p. 9 of 68 (emphasis in original). Case 4:16-cv-00301-CDL Document 32-2 Filed 04/25/17 Page 2 of 5 3 10. Under the Policy, Pollutants mean any sold, liquid, gaseous or thermal irritant, contaminant or toxin including, but not limited to smoke, vapor, soot, fumes, dust fibers, spores, Fungi, germs, acids, alkalis, chemicals, metals, silica, lead, lead compounds or materials containing lead, asbestos compounds or materials containing asbestos, radon, waste or any like substances. ECF No. 1-6, p. 59 of 68 (emphasis in original). Lead is a pollutant. 11. The Policy contains a limited carve-out to the Pollution Exclusion for: This Exclusion shall not apply to Claims for Wrongful Acts involving the Insured’s unintentional failure to disclose the existence of Pollutants, subject to a sub-limit of liability of $500,000 each Claim and $500,000 in the aggregate for the Policy Period… ECF No. 1-6, p. 60 of 68 (emphasis in original). 12. The carve-out is an eroding limit, meaning that defense costs reduce the available coverage. ECF No. 1-6, p. 5 of 68 (“Claim Expenses are a part of, and not in addition to, the applicable Limit of Liability, and Claim Expenses by Underwriters will reduce the remaining and available Limit of Liability.”); see also ECF No. 1-6, p. 6 of 68 (explaining Claim Expenses includes “[r]easonable and necessary attorney fees and costs”). 13. Plaintiffs filed this action, seeking a declaration from the Court regarding their rights and duties under the Policy with respect to the Underlying Lawsuit. ECF No. 1. 14. Among other requests for relief, Plaintiffs seek a declaration that the Policy’s Pollution Exclusion precludes coverage, except for a $500,000 limit for unintentional failure to disclose pollutants. ECF No.1 ¶¶ 52-58. 15. The parties to this action seek the Court’s permission to stay certain issues raised in Plaintiffs’ complaint, as such issues may be dependent on the outcome of the Underlying Lawsuit. These include: Case 4:16-cv-00301-CDL Document 32-2 Filed 04/25/17 Page 3 of 5 4 • Count III, which seeks a declaration that FBFC is an additional insured only for wrongful acts arising out of services rendered by Michael’s; • Count IV, which seeks a declaration that the Policy’s exclusion for Dishonest, Criminal and Intentional Conduct and Violation of the Law precludes coverage for the Underlying Lawsuit; • Count V, which seeks a declaration that there is no coverage for the Underlying Lawsuit; to the extent that Michael’s and/or FBFC was aware of circumstances that could give rise to the Browns’ lawsuit prior to the inception of the Policy; and • Count VI, which seeks a declaration that there is no coverage for damages for which insurance is prohibited by law (including but not limited to punitive damages). See Proposed Scheduling Order at 6 (attached hereto as Exhibit “A”). Respectfully submitted, this 25th day of April 2017. 1180 West Peachtree St., Suite 1600 Atlanta, GA 30309 404.214.1250 (Telephone) 404.214.1251 (Facsimile) pfields@fieldshowell.com gmast@fieldshowell.com crader@fieldshowell.com FIELDS HOWELL LLP /s/ Caitlin M. Crader Paul L. Fields, Jr. Georgia Bar No.: 003420 Gregory L. Mast Georgia Bar No.: 476191 Caitlin M. Crader Georgia Bar No.: 892010 Attorneys for Plaintiffs Case 4:16-cv-00301-CDL Document 32-2 Filed 04/25/17 Page 4 of 5 5 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION MS AMLIN CORPORATE MEMBER, LTD., ATRIUM 5 LIMITED, CHAUCER CORPORATE CAPITAL (NO. 3) LIMITED, ARK CORPORATE MEMBER LIMITED, AEGIS ELECTRIC & GAS INTERNATIONAL SERVICES LTD, Plaintiffs, v. MICHAELS MANAGEMENT SERVICES, INC. F/K/A JILLDEN REALTY MANAGEMENT COMPANY; FORT BENNING FAMILY COMMUNITIES, LLC; LT. COL. JOHN CALE BROWN, SR. AND DARLENA BROWN, individually and as parents and next friend of “JC,” a minor AND BROWN, JR., a minor, Defendants. CIVIL ACTION NO.: 4:16-cv-301 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing PLAINTIFFS’ STATEMENT OF MATERIAL FACTS FOR WHICH THERE IS NO GENUINE ISSUE TO BE TRIED was served via CM/ECF on all attorneys of record. This 25th day of April, 2017. 1180 West Peachtree St., Suite 1600 Atlanta, GA 30309 404.214.1250 (Telephone) 404.214.1251 (Facsimile) FIELDS HOWELL LLP /s/ Caitlin M. Crader Paul L. Fields, Jr. Georgia Bar No.: 003420 Gregory L. Mast Georgia Bar No.: 476191 Caitlin M. Crader Georgia Bar No.: 892010 Attorney for Plaintiffs Case 4:16-cv-00301-CDL Document 32-2 Filed 04/25/17 Page 5 of 5 EXHIBIT A Case 4:16-cv-00301-CDL Document 32-3 Filed 04/25/17 Page 1 of 15 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION MS AMLIN CORPORATE MEMBER, LTD., ATRIUM 5 LIMITED, CHAUCER CORPORATE CAPITAL (NO. 3) LIMITED, ARK CORPORATE MEMBER LIMITED, AEGIS ELECTRIC & GAS INTERNATIONAL SERVICES LTD, Plaintiffs, v. MICHAELS MANAGEMENT SERVICES, INC. F/K/A JILLDEN REALTY MANAGEMENT COMPANY; FORT BENNING FAMILY COMMUNITIES, LLC; LT. COL. JOHN CALE BROWN, SR. AND DARLENA BROWN, individually and as parents and next friend of “JC,” a minor AND BROWN, JR., a minor, Defendants. CIVIL ACTION NO.: 4:16-cv-301 PROPOSED SCHEDULING AND DISCOVERY ORDER In accordance with the Court’s Rules 16 and 26 Order dated January 23, 2017, the parties to this action1 have conferred and jointly developed the Proposed Scheduling and Discovery Order (the “Proposed Order”), containing deadlines and limitations as follows: I. Nature of the Case This matter involves an insurance coverage dispute arising out of a lawsuit filed by Lt. Col. John Cale Brown, Sr., Darlena Brown and their minor son (collectively, the “Browns”), against Fort Benning Family Communities, LLC (“FBFC”) and Michael’s Management Services, Inc. (“Michaels”). The Browns allege that FBFC owned properties located at 600 and 1 The parties have conferred, with the exception of Don Edwards, counsel for Lt. Col. John Cale Brown Sr. and Darlena Brown, individually and as parents and next friend of “JC,” a minor AND Brown, Jr., a minor. Mr. Edwards has made an appearance for the Browns but has not filed an answer on their behalf. He was included on correspondence to schedule the planning conference but did not respond or participate. Case 4:16-cv-00301-CDL Document 32-3 Filed 04/25/17 Page 2 of 15 2 602 Wickersham Avenue, Fort Benning, Georgia, and that Michaels was contracted to manage those properties. The Browns contend that toxic levels of lead at these properties injured their son. They seek compensatory and punitive damages. Plaintiffs MS Amlin Corporate Member Ltd., Atrium 5 Limited, Chaucer Corporate Capital (No. 3 Limited), Ark Corporate Member Limited, and AEGIS Electric & Gas International Services, Ltd. (collectively, “Plaintiffs”) are insurers that subscribed to a policy of insurance issued to Michaels (the “Policy”). Plaintiffs have been defending Michaels against the Browns’ lawsuit pursuant to a full reservation of rights. FBFC is being defended by its liability carrier, Massachusetts Bay Insurance Company. Plaintiffs have filed this action, seeking a declaration from the Court regarding their rights and duties under the Policy with respect to the Browns’ lawsuit. Plaintiffs seek a declaration that the Policy’s Pollution Exclusion precludes coverage, except for a $500,000 limit for unintentional failure to disclose pollutants. Plaintiffs further seek a declaration that FBFC is an “additional insured” under the Policy only for wrongful acts arising out of services provided by Michaels. Defendants deny that Plaintiffs are entitled to the relief sought. This action was filed on August 29, 2016. ECF No. 21. While the Browns have not filed an answer, FBFC filed an answer on January 19, 2017. ECF No. 22. Michael’s filed an answer on January 20, 2017. ECF No. 26. Case 4:16-cv-00301-CDL Document 32-3 Filed 04/25/17 Page 3 of 15 3 II. Counsel of Record: The following attorneys are designated lead counsel for the parties: Gregory L. Mast Georgia Bar No.: 476191 FIELDS HOWELL, LLP 1180 West Peachtree Street Suite 1600 Atlanta, Georgia 30309 Telephone: (404) 214-1250 Facsimile: (404) 214-1251 gmast@fieldshowell.com Attorney for Plaintiffs H. Jerome Strickland Georgia Bar No. 687700 JONES CORK, LLP 435 2nd Street Suite 500 Macon, Georgia 31201 Telephone: (478) 745-2821 Facsimile: (478) 743-9609 Jerome.Strickland@jonescork.com Attorney for Fort Benning Family Communities, LLC * Applications for the pro hac vice admission of the following attorneys on behalf of Fort Benning Family Communities, LLC are forthcoming: Brian J. Levy Georgia Bar No.: 302518 STITES & HARBISON, PLLC 303 Peachtree Street NE Suite 2800 Atlanta, Georgia 30309 Telephone: (404) 739-8800 Facsimile: (404) 739-8870 blevy@stites.com Attorney for Michael’s Management Services, Inc. f/k/a Jillden Realty Management Company Donald P. Edwards Georgia Bar No. 240575 THE LAW OFFICE OF DONALD P. EDWARDS 170 Mitchell Street, SW Atlanta, Georgia 30303 Telephone: (404) 526-8866 Facsimile: (404) 526-8855 dedwards@dpelegal.com Attorney for Lt. Col. John Cale Brown Sr. and Darlena Brown, individually and as parents and next friend of “JC,” a minor * Applications for the pro hac vice admission of the following attorneys on behalf of Michael’s Management Services Inc. f/k/a Jillden Realty Management Company are forthcoming: Case 4:16-cv-00301-CDL Document 32-3 Filed 04/25/17 Page 4 of 15 4 Melissa C. Lesmes Eric M. Gold PILLSBURY WINTHROP SHAW PITTMAN, LLP 1200 Seventeenth Street NW Washington, D.C. 20036 Phone: (202) 663-9385 Facsimile: (202) 663-8007 melissa.lesmes@pillsburylaw.com eric.gold@pillsburylaw.com Mark D. Villanueva Karl S. Myers STRADLEY RONON STEVENS & YOUNG, LLP 2005 Market Street Suite 2600 Philadelphia, PA 19103 Telephone: (215) 564-8000 Facsimile: (215) 564-8120 mvillanueva@stradley.com kmyers@stradley.com III. Discovery: A. The Parties Disagree Over the Timing and Scope of Discovery As set forth below in Section III.B, the parties have agreed to stay Counts I, IV, V, and VI of Plaintiffs’ Complaint. Michaels and Plaintiffs, however, disagree on whether discovery is necessary for the Court to resolve Counts II and III of Plaintiffs’ Complaint. Michaels believes Counts II and III can be resolved as a matter of law, and propose a briefing schedule for Motions for Partial Summary Judgment, as detailed below in Section IV. Plaintiffs believe that limited discovery is necessary to resolve Counts II and III of Plaintiffs’ Complaint. 1. Plaintiffs’ Position Regarding Discovery Plaintiffs require limited discovery of information in the possession of the Defendants. For example (and while the parties may ultimately disagree), it appears that New Jersey law could be implicated, if the policy was delivered there. Under New Jersey law, the rules of insurance contract construction are applied differently, if the policy holder is a sophisticated commercial entity and had involvement in negotiations over terms. See e.g. generally, Dare Investments, LLC v. Chicago Title Ins. Co., Civ. No. 10-6088, 2011 WL 5513196 (D.N.J. Nov. 10, 2011)(discussing various cases addressing sophisticated insureds). Here, Plaintiffs contend that the policy provisions at issue were added at the request of Michael’s Management and, Case 4:16-cv-00301-CDL Document 32-3 Filed 04/25/17 Page 5 of 15 5 therefore, limited discovery regarding the procurement of the subject insurance policy, Michael’s Management’s understanding of the coverage, and the sophistication of the insured, is needed. As this information is largely in the possession of Michael’s Management, cutting off all discovery would stack the deck overwhelmingly in favor of the Defendants and force the Plaintiffs to seek relief under Fed. R. Civ. P. Rule 56(d). Plaintiffs also anticipate that discovery may be needed as to any “true facts” asserted by the Defendants to bring the claim within coverage, notwithstanding the allegations in the underlying complaint. Without written discovery, Plaintiffs are unable to identify those specific additional areas where discovery may be needed. Moreover, to the extent that Defendants ask for a determination as to the duty to indemnify as opposed to merely the duty to defend, Plaintiffs would be entitled to discovery on those specific areas. The time for discovery in this case shall expire on July 21, 2017, such date being six (6) months after the last answer on file. In the event that one or all parties believe that a greater time for discovery is needed, the party or parties will file a written motion for extension of time, accompanied by a proposed order for the Court, wherein good cause will be shown for the requested extension. 2. Defendant Michaels’ Position Regarding Discovery Because the Court can resolve Counts II and III of Plaintiffs’ Complaint by interpreting the terms and conditions of the Policy and the complaint filed by the Browns in the Underlying Action, time-consuming and expensive discovery is unnecessary. See, e.g., Mayorga v. Russo Family Ltd. Partnership, No. A-2124-09T3, 2010 WL 2471419, at *4 (N.J. Super. Ct. App. Div. June 21, 2010) (finding that discovery was “not required to determine the intent of the parties, which is reflected in the plain language of the contract”); Pappas v. UNUM Life Ins. Co. of America, 856 A.2d 183, 188 (Pa. Super. Ct. 2004) (finding discovery unnecessary to determine Case 4:16-cv-00301-CDL Document 32-3 Filed 04/25/17 Page 6 of 15 6 meaning of insurance policy). Accordingly, all discovery shall be stayed pending resolution of the Motions for Partial Summary Judgment described in Section IV, below. B. Agreement to Stay Certain Issues The parties have agreed to stay certain issues raised in Plaintiffs’ Complaint, as such issues are dependent on the outcome of the Browns’ lawsuit. These include:  Count IV, which seeks a declaration that the Policy’s exclusion for Dishonest, Criminal and Intentional Conduct and Violation of the Law precludes coverage for the Browns’ lawsuit;  Count V, which seeks a declaration that there is no coverage for the Browns’ lawsuit to the extent that Michaels and/or FBFC was aware of circumstances that could give rise to the Browns’ lawsuit prior to the inception of the Policy; and  Count VI, which seeks a declaration that there is no coverage for damages for which insurance is prohibited by law (including but not limited to punitive damages). Further, Massachusetts Bay and Plaintiffs have reached a tentative agreement regarding the split of defense fees for the Browns’ lawsuit. Accordingly, the parties agree to stay Count I, which seeks a declaration that any coverage under the Policy is excess to any other insurance available to Michaels and/or FBFC. The Parties ask that the stay be automatically lifted upon the conclusion of and exhaustion of appeals in the Browns’ lawsuit. C. Witnesses to be Deposed As set forth above, Michaels and Plaintiffs disagree as to whether discovery is required and the appropriate scope of discovery to resolve Counts II and III of Plaintiffs’ Complaint. Case 4:16-cv-00301-CDL Document 32-3 Filed 04/25/17 Page 7 of 15 7 However, if the Court orders discovery, the following is a list of witnesses each party seeks to have deposed, including the proposed time, date and place for each deposition. The parties reserve their right to object to the depositions of such witnesses. 1. Depositions By the Plaintiffs  William Geddes, Controller/Risk Manager for Interstate Realty Management Company. Mr. Geddes’ address is 3 East Stow Road, Marlton, NJ 08053. Plaintiffs propose that Mr. Geddes’ deposition be held on May 31, 2017, in Marlton, NJ or at such other place and/or on such other date as the parties may agree.  Kevin Violette, RT ProExec (non-party). Mr. Violette’s address is 330 West Newberry Road, Bloomfield, CT 06002. Plaintiffs propose that Mr. Violette’s deposition be held on June 2, 2017, in Bloomfield, CT or at such other place and/or on such other date as the parties may agree.  Geraldine A. Henley, Vice President, Director of Claim Services for Conner Strong & Buckelew (non-party). Ms. Henley’s address is Two Liberty Place, 50 S. 16th Street, Suite 3600, Philadelphia, PA 19102. Plaintiffs propose that Ms. Henley’s deposition be held on June 13, 2017, in Philadelphia, PA or at such other place and/or on such other date as the parties may agree. 2. Depositions By Defendant Michaels If the Court orders discovery prior to the filing of the Motions for Partial Summary Judgment described in Section IV, below, Defendant Michaels proposes the following depositions: Case 4:16-cv-00301-CDL Document 32-3 Filed 04/25/17 Page 8 of 15 8  Jaime Weinberg, NAS Insurance (non-party). Mr. Weinberg’s address is 16501 Ventura Blvd., Suite 200, Encino CA 91436. Michaels proposes that Mr. Weinberg’s deposition be held on June 7, 2017, in Encino, CA or at such other place and/or on such other date as the parties may agree.  Larry Hoellwarth, Esq., Karbal Cohen Economou Silk & Dunne (non-party). Mr. Hoellwarth’s address is 150 S. Wacker Drive, 17th Floor, Chicago, IL 60606. Michaels proposes that Mr. Hoellwarth’s deposition be held on July 12, 2017, in Chicago, IL or at such other place and/or on such other date as the parties may agree.  Bradley Bernau, Esq., Karbal Cohen Economou Silk & Dunne (non-party). Mr. Hoellwarth’s address is 150 S. Wacker Drive, 17th Floor, Chicago, IL 60606. Michaels proposes that Mr. Bernau’s deposition be held on July 11, 2017, in Chicago, IL or at such other place and/or on such other date as the parties may agree. 3. Depositions by Defendant FBFC  None. FBFC intends to participate in any depositions conducted by Michaels or Plaintiffs. As discussed above, the parties are agreeing to stay certain issues raised in this action declaratory judgment action, pending the conclusion of the underlying lawsuit filed by the Browns. The parties will consider any additional witnesses that would need to be deposed the completion of that litigation. The parties reserve the right to identify other persons that need to be deposed during discovery. Specifically, Plaintiffs object to the depositions of their counsel Larry Hoellworth Case 4:16-cv-00301-CDL Document 32-3 Filed 04/25/17 Page 9 of 15 9 and Bradley Bernau. D. Estimated Cost of Discovery, Including Fees Plaintiffs estimate their cost and fees associated with discovery will total $50,000. Defendant Michaels estimates its costs and fees associated with discovery will total $75,000. Defendant FBFC estimates its costs and fees associated with discovery will total $75,000. E. Expert Witnesses As set forth above in Section III.B, the parties have agreed to stay Counts I, IV, V, and VI of Plaintiffs’ Complaint. Michaels and Plaintiff disagree on whether discovery is necessary for the Court to resolve Counts II and III of Plaintiffs’ Complaint. The parties’ positions are outlined above. If the Court orders discovery prior to the filing of the Motions for Partial Summary Judgment described in Section IV, below, the parties propose the following with regard to experts: 1. Designation of Experts The Plaintiffs must disclose the identity of any expert witness who may testify at trial on or before April 20, 2017, that being no more than 90 days after the filing of the last answer of record. The Defendants must disclose any expert witnesses who may testify on or May 22, 2017, that being no more than 120 days2 after the filing of the last answer of record. If the Plaintiffs have not disclosed an expert but the Defendants have or if the Defendants designate an expert to testify on a subject not within the scope of any expert disclosure by the Plaintiffs, the Plaintiffs shall have 30 days from the date of the Defendants’ disclosure to disclose 2 120 days after the last answer would fall on a weekend, so the parties have selected the following Monday for this deadline. Case 4:16-cv-00301-CDL Document 32-3 Filed 04/25/17 Page 10 of 15 10 a rebuttal expert. 2. Expert Report Any disclosure of an expert witness retained or specially employed to provide expert testimony in the case or one whose duties as a party’s employee regularly involve giving expert testimony must be accompanied by a written report prepared and signed by the expert in accordance with the requirements of Rule 26(a)(2)(B). Any disclosure of any expert witness who is not required to provide a written expert report under Rule 26(a)(2)(B) must comply with Rule 26(a)(2)(C) and disclose the identity of the witness, the subject matter on which the witness is expected to present expert testimony, and a summary of the facts and opinions to which the witness is expected to testify. IV. Time for Filing Motions A. Motions to Amend the Pleadings or to Join Parties The parties may amend the pleadings or join new parties without leave of Court up to and including 60 days after the entry of this Scheduling and Discovery Order. Any amendment of the pleadings after this date shall require leave of Court upon a properly presented motion. B. Dispositive Motions The parties disagree on the timing of dispositive motions. The parties’ respective positions are set forth below. 1. Plaintiffs’ Position All Dispositive Motions will be filed no later than September 4, 2017, that being no more than 45 days after the close of discovery. Briefs in support of such motions shall not exceed 20 pages, unless otherwise ordered by the Court. A respondent shall have 21 days and no more than 20 pages to respond to the dispositive motion and the movant shall have 14 days hereafter and no more than 10 pages to file a reply. Case 4:16-cv-00301-CDL Document 32-3 Filed 04/25/17 Page 11 of 15 11 2. Defendants’ Position Motions for Partial Summary Judgment on Counts II and III will be filed no later than 45 days after entry of this Scheduling and Discovery Order. Briefs in support of such motions shall not exceed 20 pages, unless otherwise ordered by the Court. A respondent shall have 21 days and no more than 20 pages to respond to the dispositive motion and the movant shall have 14 days hereafter and no more than 10 pages to file a reply. C. Daubert Motions Daubert motions must be filed within 21 days after the court’s ruling on the last pending motion for summary judgment. If no summary judgment motion is filed by the dispositive motion due date, then any Daubert motion shall be filed within 21 days after the due date for filing dispositive motions. Respectfully submitted, this 23rd day of March, 2017. FIELDS HOWELL LLP 1180 West Peachtree St., Suite 1600 Atlanta, GA 30309 404.214.1250 (Telephone) 404.214.1251 (Facsimile) pfields@fieldshowell.com gmast@fieldshowell.com crader@fieldshowell.com /s/ Gregory L. Mast Paul L. Fields, Jr. Georgia Bar No.: 003420 Gregory L. Mast Georgia Bar No.: 476191 Caitlin M. Crader Georgia Bar No.: 892010 Attorneys for Plaintiffs 435 2nd Street Suite 500 Macon, Georgia 31201 Telephone: (478) 745-2821 Facsimile: (478) 743-9609 Jerome.Strickland@jonescork.com JONES CORK, LLP /s/ H. Jerome Strickland H. Jerome Strickland Georgia Bar No.: 687700 Renee S. Rainey Georgia Bar No.: 479998 Attorneys for Fort Benning Family Communities Case 4:16-cv-00301-CDL Document 32-3 Filed 04/25/17 Page 12 of 15 12 STITES & HARBISON, PLLC 303 Peachtree Street NE Suite 2800 Atlanta, Georgia 30309 Telephone: (404) 739-8800 Facsimile: (404) 739-8870 blevy@stites.com /s/ Brian J. Levy Brian J. Levy Georgia Bar No.: 302518 Attorney for Michaels Management Services, Inc. f/k/a Jillden Realty Management Company Case 4:16-cv-00301-CDL Document 32-3 Filed 04/25/17 Page 13 of 15 13 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION MS AMLIN CORPORATE MEMBER, LTD., ATRIUM 5 LIMITED, CHAUCER CORPORATE CAPITAL (NO. 3) LIMITED, ARK CORPORATE MEMBER LIMITED, AEGIS ELECTRIC & GAS INTERNATIONAL SERVICES LTD, Plaintiffs, v. MICHAELS MANAGEMENT SERVICES, INC. F/K/A JILLDEN REALTY MANAGEMENT COMPANY; FORT BENNING FAMILY COMMUNITIES, LLC; LT. COL. JOHN CALE BROWN, SR. AND DARLENA BROWN, individually and as parents and next friend of “JC,” a minor AND BROWN, JR., a minor, Defendants. CIVIL ACTION NO.: 4:16-cv-301 The Court, having reviewed the information contained in the Proposed Scheduling and Discovery Order completed and filed jointly by the parties to this action, hereby and by request of the parties stays discovery as to Counts I, IV, V, and VI of Plaintiffs’ Complaint pending the entry of judgment in the underlying case. Further, the Court ADOPTS the [( ) Plaintiffs’ or ( ) Defendants’] plan and MAKES IT THE ORDER OF THE COURT. SO ORDERED this ______ day of _______________, 2017. _________________________________________ The Honorable Clay D. Land CHIEF UNITED STATES DISTRICT JUDGE Case 4:16-cv-00301-CDL Document 32-3 Filed 04/25/17 Page 14 of 15 14 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION MS AMLIN CORPORATE MEMBER, LTD., ATRIUM 5 LIMITED, CHAUCER CORPORATE CAPITAL (NO. 3) LIMITED, ARK CORPORATE MEMBER LIMITED, AEGIS ELECTRIC & GAS INTERNATIONAL SERVICES LTD, Plaintiffs, v. MICHAELS MANAGEMENT SERVICES, INC. F/K/A JILLDEN REALTY MANAGEMENT COMPANY; FORT BENNING FAMILY COMMUNITIES, LLC; LT. COL. JOHN CALE BROWN, SR. AND DARLENA BROWN, individually and as parents and next friend of “JC,” a minor AND BROWN, JR., a minor, Defendants. CIVIL ACTION NO.: 4:16-cv-301 CERTIFICATE OF SERVICE Pursuant to the Court’s Rules 16 and 26 Order, I hereby certify that I have this day submitted the foregoing PROPOSED SCHEDULING AND DISCOVERY ORDER to the Clerk of Court via electronic mail at macon.ecf@gamd.uscourts.gov, in Word format, with same being copied to the following counsel of record. dedwards@dpelegal.com Jerome.Strickland@jonescork.com blevy@stites.com This 23rd day of March, 2017. FIELDS HOWELL LLP 1180 West Peachtree St., Suite 1600 Atlanta, GA 30309 404.214.1250 (Telephone) 404.214.1251 (Facsimile) gmast@fieldshowell.com /s/ Gregory L. Mast Gregory L. Mast Georgia Bar No.: 476191 Attorneys for Plaintiffs Case 4:16-cv-00301-CDL Document 32-3 Filed 04/25/17 Page 15 of 15