United States District Court, E.D. Louisiana
COX OPERATION, L.L.C.
SETTOON TOWING, L.L.C., ET AL.
I REF: ALL CASES
ORDER & REASONS
M. AFRICK, UNITED STATES DISTRICT JUDGE
the Court is defendant Settoon Towing, L.L.C.'s
(“Settoon”) motion in limine to exclude all
evidence and testimony concerning plaintiff Cox Operating,
L.L.C.'s (“Cox”) “no claims
bonus” damages claim. For the following reasons, the
motion is dismissed in part and deferred in part.
case concerns a September 13, 2016 accident in which a vessel
owned by Settoon allided with a well owned by Cox. While
discovery was ongoing, Settoon sought to depose Cox pursuant
to Federal Rule of Civil Procedure 30(b)(6), and Cox
designated Rodney Dykes (“Dykes”) as its
corporate representative. The deposition took place over the
course of two meetings spanning five months, and it covered
93 topics. One of those topics was the category of
damages relating to the return of a “no claims
bonus” set forth in Cox's relevant insurance
30(b)(6) “provides a mechanism for deposing a
corporation.” Omega Hosp., LLC v. Cmty. Ins.
Co., 310 F.R.D. 319, 321 (E.D. La. Sept. 24, 2015)
(Barbier, J.). “Obviously it is not literally possible
to take the deposition of a corporation; instead, . . . the
information sought must be obtained from natural persons who
can speak for the corporation.” Brazos River Auth.
v. GE Ionics, Inc., 469 F.3d 416, 433 (5th Cir. 2006).
The rule imposes duties on both parties. Johnson v. Big
Lots Stores, Inc., No. 04-3201, 2008 WL 6928161, at *2
(E.D. La. May 2, 2008) (Vance, J.). The party noticing the
deposition must name the corporation and “describe with
reasonable particularity the matters for examination.”
Id. (quoting Fed. R. Civ. Pro. 30(b)(6)). In
response, the corporation-deponent must designate a
knowledgeable representative to testify about such matters on
its behalf. Id.
present motion, Settoon argues that Cox failed to comply with
its Rule 30(b)(6) obligation to present a knowledgeable
witness with respect to the “no claims bonus”
topic. According to Settoon, Dykes was unprepared to speak
about the “no claims bonus” in any significant
detail, and the Court should thus exclude not only his
testimony but all evidence related to the “no
argues that Settoon's protestations are
disingenuous. After Settoon broached the subject of the
“no claims bonus” during the February portion of
the deposition, Cox claims that Settoon's counsel
indicated that he was satisfied with Dykes'
responses. Cox accuses Settoon of waiting until after
the discovery period had concluded to continue the deposition
so that-if Settoon was unhappy with Dykes' testimony-it
would be too late for Cox to designate another Rule 30(b)(6)
witness or provide additional documents.
Cox and Settoon are arguing about whether, at trial, the
Court should permit Cox to present the evidence and testimony
it has thus far produced to prove the amount of the “no
claims bonus” as well as whether such evidence and
testimony are sufficient to support Cox's claim. As
stated, the Court previously ruled that Cox may seek to
recover such amount.
resolve issues surrounding the Dykes deposition, the Court
will reopen the discovery period for the limited purpose of
engaging in additional discovery regarding calculation of the
amount of the “no claims bonus.” Settoon should
depose any necessary witnesses (under Rule 30(b)(6) or
otherwise). Also, Cox may produce, and Settoon may request,
additional documentary evidence as to this particular issue.
The reopening of the discovery period moots Settoon's
request to exclude Dykes' Rule 30(b)(6)
parties also argue extensively over whether the cover notes
and their accompanying documents represent the insurance
policy that includes the “no claims bonus”
is language in the cover notes suggesting that an actual
policy document was to be issued at a later
date. But other courts have permitted cover
notes to serve as evidence of an insurance policy. See
generally Insurance Co. of N. Am. v. Aberdeen Ins. Servs.,
Inc., 253 F.3d 878 (5th Cir. 2001); LCI
Shipholdings, Inc. v. IF P&C Ins., Ltd., No.
02-2950, 2003 WL 21219903 (E.D. La. May 22, 2003) (Fallon,
J.); see also Taylor v. Lloyd's Underwriters of
London, No. 90-1403, 1994 WL 118303, at *8 n.9 (E.D. La.
Mar. 25, 1994) (Mitchell, J.) (“It is clear that a
‘Cover Note' is considered part of an insurance
contract and is evidence of the extent of the coverage
provided under the contract, in the same manner as an
‘endorsement' is part of the contract.”).
Whether these particular cover notes and their attachments
truly reflect the policy at issue is best addressed at trial,
when the Court can weigh the credibility of all of the
evidence and any related testimony. The issue of which
documents constitute evidence of the policy is therefore
deferred until trial.
also invokes the fortuity doctrine to argue that all of the
documents related to the “no claims bonus” that
Cox produced before Dykes' deposition are irrelevant
because they post-date the allision. Settoon cites Sosebee
v. Certain Underwriters at Lloyds London, in which the
Fifth Circuit explained that “[t]he fortuity doctrine
precludes [insurance] coverage for two categories of losses:
known losses and losses in progress. The ‘known
loss' aspect . . . precludes coverage ‘where the
insured is, or should be, aware of . . . [a] known loss at
the time the policy is purchased.'” 566 Fed.Appx.
296, 297 (5th Cir. 2014) (citation omitted). In short, the
fortuity doctrine, as summarized in Sosebee, bars
retroactive coverage of an accident under ...