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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

D E ENTERPRISES, LLC d/b/a )

CASCADES DEVELOPMENT GROUP, LLC, )

)

Plaintiff, )

)

v. ) Civil Action No. 3:06-cv-00692-VPM

)

ASSURANCE COMPANY OF AMERICA, )

)

Defendants. )

REPORT OF PARTIES’ PLANNING MEETING

1. Pursuant to F.R.C.P. 26(f), a meeting was held on August 25, 2006. Those

attending the meeting are otherwise constituting trial counsel are, as follows:

a. Lee R. Benton, Thomas C. Fernekes and/or Amy M. Hazelton on behalf of

the Plaintiff, D E Enterprises, LLC, which does business as Cascades

Development Group, LLC; and

b. Thomas M. O’Hara and Anne Laurie Smith on behalf of Defendant,

Assurance Company of America. The parties are informed that Zurich

North America is, at most, a trade name for Assurance Company of

America, the properly identified Defendant to this action. 

2. Pre-discovery Disclosures: The parties shall exchange the information required

by F.R.C.P. 26(a) by September 15, 2006. 

3. Synopsis of the Case, with Brief Description of General Claims and Defenses: 

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a. Plaintiff’s Statement: This is a suit brought for the breach of a policy of

insurance. D E Enterprises, LLC is an Alabama limited liability company

which acts through Cascades Development Group, LLC in the

development of residential real property. It obtained a Builder’s Risk

Insurance Policy No. BRN48521190 from the Defendant (the “Policy”). 

During the term of the Policy, a waterline adjacent to the premises under

construction broke and water flowed onto, into and through a home then

being constructed by the Plaintiff, causing damage to the property and

house. Additional damages arose through mildew and related

consequential damages in that no one was a aware of the incident for

approximately one week. The Plaintiff was caused to undertake

substantial repair and has lost both the costs of such repair and incidental

and consequential damages through its inability to timely complete and

market the premises. Demand was made upon the Defendant insurance

company, pursuant to the Policy, which denied coverage by

correspondence dated February 9, 2005, and more recently, August 14,

2006. Plaintiff contends that the Defendant has breached its policy of

insurance and that there was no legal justification for denying the loss,

thereby creating tortious misconduct through a bad faith denial of the

claim. 

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b. Defendant’s Statement: Plaintiff has asserted claims against Defendant

alleging breach of contract and bad faith. These claims arise out of the

Policy issued to Plaintiff by Defendant. On or about September 14, 2004,

Plaintiff submitted a claim under the Policy for damage to its property

after a water main burst causing surface water, ground water and/or mud to

seep into the property’s foundation. The Policy, however, expressly

excludes damage caused by ground water and/or surface water and/or

mud. Because the damage to Plaintiff’s property was specifically

excluded by the plain and unambiguous terms of the Policy, Defendant

denied Plaintiff’s claim. Defendant has fulfilled all obligations pursuant to

the Policy. Defendant has at all times acted in good faith with regard to

Plaintiff’s claim. It fully and completely investigated Plaintiff’s claim, and

pursuant to the express terms of the Policy there is no coverage. 

4. Deadline: The parties shall have until November 1, 2006, to amend any pleadings

and to add (and complete service of process upon) any new party.

5. Discovery Plan: The parties jointly propose to the Court a Discovery Plan, as

follows:

a. Plaintiff will require discovery concerning the nature and reason of the

denial of the policy by the Defendant, the extent of investigation and legal

efficacy of any purported denial or exclusion. Plaintiff also may need

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discovery relating to the nature and cause of the incident and the extent of

damages. 

b. Defendant will require discovery concerning all of Plaintiff’s claims and

Defendant’s defenses. Specifically, Defendant will require discovery of

any information or documents that support Plaintiff’s claim that the

damage to its property is covered by the Policy. 

c. A maximum of 30 interrogatories may be requested by each party to any

other party; responses are due 30 days after service;

d. A maximum of 30 requests for admissions may be made by each party to

any other party; responses are due 30 days after service;

e. A maximum of 8 depositions by each party; 

f. A maximum of 30 categories of documents to be requested by each party

from any other party; responses due 30 days after service;

g. Plaintiff shall identify and provide any report of its expert on or before

February 15, 2007; 

h. Defendant shall identify and provide any report of its expert on or before

March 15, 2007;

i. All discovery shall be commenced in time to be completed by April 16,

2007;

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6. Other Items: Any dispositive motions shall be filed no later than May 15, 2007;

responses shall be filed by June 11, 2007; any replies to such response shall be filed no later than

June 18, 2007. 

7. The parties do not request a conference with the Court before entry of a

Scheduling Order. 

8. Settlement cannot presently be evaluated prior to completion of discovery,

although the parties anticipate using their best efforts to resolve disputes as quickly as possible. 

9. Final lists of witnesses and exhibits under F.R.C.P. 26(a)(3) shall be provided by

the party 14 days prior to trial; final lists of trial evidence under F.R.C.P. 26(a)(3) shall be

submitted on or before 14 days prior to trial; objections to authenticity of exhibits, competency of

witnesses or objections under F.R.C.P. 26(a)(3) to final lists of trial evidence shall be submitted

no later than 7 days prior to trial. 

10. The case should be ready for trial by October 1, 2007, and at this time trial is

expected to take approximately 3 days. 

Dated this 8 day of September, 2006. th

Submitted by:

/s/ Lee R. Benton

Lee R. Benton (ABS 8421-E63L)

Attorney for D E Enterprises, LLC

BENTON & CENTENO, LLP

2019 Third Avenue North

Birmingham, Alabama 35203

Phone: 205-278-8000

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Fax: 205-278-8008

lbenton@bcattys.com

/s/ Anne Laurie Smith

Anne Laurie Smith (SMITA2262)

Attorney for Assurance Company of America, Inc.

McDOWELL KNIGHT ROEDDER & SLEDGE, L.L.C.

P. O. Box 350

Mobile, Alabama 36601

Phone: 251-432-5300

fax: 251-432-5303

asmith@mcdowellknight.com

CERTIFICATE OF SERVICE

I hereby certify that on the 8 day of September, 2006, I electronically filed the foregoing th

with the Clerk of the Court using the CM-ECF system, which will send notification of such filing

to all parties requesting electronic service.

/s/ Lee R. Benton

Lee R. Benton

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