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Cox Operating, L.L.C. v. Settoon Towing, L.L.C.

United States District Court, E.D. Louisiana

August 10, 2018

COX OPERATION, L.L.C.
v.
SETTOON TOWING, L.L.C., ET AL.

         SECTION I REF: ALL CASES

          ORDER & REASONS

          LANCE M. AFRICK, UNITED STATES DISTRICT JUDGE

         Before the Court is defendant Settoon Towing, L.L.C.'s (“Settoon”) motion[1] 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.

         I.

         This 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.[2] The deposition took place over the course of two meetings spanning five months, and it covered 93 topics.[3] 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 policies.[4]

         Rule 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.

         In its 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 claims bonus.”[5]

         Cox argues that Settoon's protestations are disingenuous.[6] 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.[7] 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.[8]

         Ultimately, 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.

         To 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.”[9] 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) testimony.[10]

         II.

         The parties also argue extensively over whether the cover notes and their accompanying documents represent the insurance policy that includes the “no claims bonus” provision.

         There is language in the cover notes suggesting that an actual policy document was to be issued at a later date.[11] 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.

         Settoon 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.[12] 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 ...


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