IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

General Refractories Company 

Plaintiff, 

 v. 

First State Insurance Company, et al. 

Defendants. 

Civil Action No. 04-CV-3509-EL 

ORDER 

AND NOW, this day of , 2005, upon consideration of 

Certain Defendantís Motion to Compel Plaintiff to Identify All Insurers That May Be 

Required to Provide Coverage for the Underlying Actions, and supporting papers, and 

the Opposition Memorandum of Plaintiff, General Refractories Company, and supporting 

papers, it is hereby ORDERED that the Motion is DENIED in all respects and that the 

Plaintiff is granted its costs, including its attorneys fees, with respect to its opposition to 

such motion. 

 BY THE COURT: 

 

 Edmund V. Ludwig, J. 

Case 2:04-cv-03509-EL Document 141 Filed 04/29/05 Page 1 of 14
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IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

General Refractories Company 

Plaintiff, 

 v. 

First State Insurance Company, et al. 

Defendants. 

Civil Action No. 04-CV-3509-EL 

PLAINTIFFíS MEMORANDUM OF LAW 

IN OPPOSITION TO CERTAIN DEFENDANTSí 

MOTION TO COMPEL PLAINTIFF TO IDENTIFY 

ALL INSURERS THAT MAY BE REQUIRED TO 

 PROVIDE COVERAGE FOR THE UNDERLYING ACTIONS

Preliminary Statement

 Plaintiff, General Refractories Company (hereinafter ìGRCî) has filed this 

declaratory judgment and breach of contract claim against certain of its insurance 

carriers. The basic controversy in this case is whether each of the defendantsí insurance 

policies have valid exclusions relating to coverage for asbestos-related diseases. GRC 

determined which policies with purported asbestos exclusions it would challenge, and 

the entities issuing those policies (or that were responsible for them) were made 

defendants in this case. 

 After the case began, and long before required to do so by Rule 26, Federal 

Rules of Civil Procedure, GRC provided its initial disclosures pursuant to Rule 26 to the 

defendants. In this regard, GRC provided to the defendants not only the identity and 

location of documents required to be disclosed, but actually provided copies of various 

documents that GRC had obtained from the Pennsylvania Insurance Department, as 

well as copies of the policies involved in this lawsuit. This disclosure was made on 

Case 2:04-cv-03509-EL Document 141 Filed 04/29/05 Page 2 of 14
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December 28, 2004. (See Exhibit B to April 15, 2005 Certification of Francis P. Maneri 

(ìManeri Certificationî). 

 Prior to the instant motion, GRC received one objection to its Rule 26 disclosures 

from the moving defendants. It is attached to the Certification of Barry L. Katz ( the 

ìKatz Certificationî ) as Exhibit A. It nowhere mentions all the general liability insurance 

policies which are the basis for this motion. At the Rule 16 conference held by this Court 

on March 31, 2005, certain defendants raised for the first time the specific purported 

inadequacies of GRCís Rule 26 disclosures that is the subject of the instant Motion. 

GRC believes that the present motion is wholly without merit and it appears to be the 

beginning of concerted effort by certain of the defendants to harass GRC, and increase 

the costs of litigation, with the apparent goal being to effectively litigate GRC into 

submission. As set forth below, the asserted reasons advanced by the defendants are 

wholly without merit. 

ARGUMENT

 1. The Standards For Disclosure Under Rule 26(a)(1)(A), (B) And (D)

 In their legal argument, defendants cite to no cases and no provisions of Rule 26, 

with the exception of quoting Rule 26(a)(D) [sic] and misleadingly referring to Rule 

26(a)(B) [sic]. Rule 26(a)(1)(D) has nothing to do with the type of information sought by 

the defendants. That Rule relates to insurance policies issued to defendants who may 

have insurance that covers any part of a judgment which may be entered in the action 

against them. The commentary to this Rule, and its predecessor Rule (which was 

subdivision (b)(2)), establish that it was intended to cover the defendantís liability 

insurance coverage. Thus, while this provision covers, for example, reinsurance policies 

Case 2:04-cv-03509-EL Document 141 Filed 04/29/05 Page 3 of 14
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issued to the defendants, it does not cover other policies that were issued to GRC.1

 See

also discussion infra at page 7 herein. 

 With respect to Rule 26(a)(1)(B), this rule requires that a party only disclose 

documents which it may use to support its claims. Rule 26(a)(1) is intended to 

accelerate the exchange of basic information at an early stage of discovery, but it is not 

to be used as a mechanism for obtaining information appropriately reserved for 

discovery pursuant to Rule 26(a)(3) or the other appropriate Federal Rules relating to 

discovery. See e.g. U.S. v. Merck ñ Medco Managed Care, LLC, 23 F.R.D. 330, 335 (E. 

D. Pa. 2004). 

 In this regard, it should be noted the defendants seek the identity of ìall of the 

insurers from which [GRC] obtained general liability insuranceî. See Maneri Certification 

at ¶5. This request is not limited in time, nor in any other manner. Thus, although the 

defendants rely upon alleged gaps in coverage, and the purported lack of certain 

information as to certain underlying coverage, they actually seek much more than this 

limited information. In any event, when one looks at the purported reasons for their 

demands, it is readily apparent that none of their assertions seek disclosure of 

documents required by Rule 26(a)(1). 

2. GRC Has Provided The Required Disclosures. 

 The first purported basis for the defendantsí demand for all liability insurance 

policies is set forth in the first full paragraph on page 6 of the defendantsí Memorandum, 

where they state that ìthe Policies are discoverable and directly relevant to the claims 

and defenses in this action.î The defendants then reference Rule 26(a)(B) [sic]. 

 

1

 It should be noted that none of the defendants provided any information in their Rule 26 

disclosures as to any insurance they purchased (typically referred to as reinsurance) for the 

policies they sold to GRC. (The Rule 26 disclosures of the moving defendants is Exhibit B to the 

Katz Certification). They were required to do this. See Rhone-Poulenc Rover, Inc. v. Home 

Indemnity Co., 1991 WL 237636 at *2, 24 Fed. R. Serv. 3d 762 (E.D. Pa. 1991) (involving the 

predecessor Rule to Rule 26(a)(1)(D) and requiring reinsurance disclosure). Several of the 

Case 2:04-cv-03509-EL Document 141 Filed 04/29/05 Page 4 of 14
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However, Rule 26(a)(1)(B) does not require that all documents which are discoverable 

and directly relevant to claims and defenses be produced. All that Rule 26(a)(1)(B) 

requires is production or description by category of documents which may be used to

support the plaintiffís claims. Thus, while defendants have referred to the standard for 

discovery within the scope of Rule 26(b), discoverability and relevance is not the 

standard of Rule 26(a)(1)(B). 

 The second basis advanced by the defendants is set forth in the second full 

paragraph on page 6 of their Memorandum, where they claim that certain policies that sit 

above ìmissing policiesî contain standard following form language. Defendants then 

claim that without the underlying missing policy language, it is not possible for this Court 

or the parties to ascertain the terms and conditions of the excess policies that follow 

form to the underlying missing policies. However, although the defendants admit that 

the plaintiff gave them copies of all the policies that are at issue in this case, they fail to 

identify or provide to this Court the policies which purport to contain the standard 

following form language. Indeed, the most they do is to misleadingly quote from one

policy, the Puritan policy, which is set forth on page 5 of their Memorandum, and at ¶ 7 

of the Maneri Certification, but not provided to this Court.2

 GRC has reviewed each of 

the policies at issue in this case. Of those, only one policy that contains following form 

language was issued by a defendant that is making this Motion ñ Centennial3

. That 

policy provides as follows: 

 2. Except as may be otherwise stated in this 

 Certificate, the coverage provided by this 

 Certificate shall follow the insuring 

 agreements, conditions and exclusions of 

 the underlying insurance (whether primary 

 or excess) immediately preceding the layer 

 

counsel for the defendants in this case were involved in that case and are thus aware of this 

requirement. 

2

 Interestingly, Puritan is not party to this Motion. 

3

 Harbor, now Continental, also has following form general language, but as to asbestos the 

policy has its own exclusionary language. 

Case 2:04-cv-03509-EL Document 141 Filed 04/29/05 Page 5 of 14
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 of coverage provided by this Certificate, 

 including any change by endorsements. 

(A copy of this policy is Exhibit C to Katz Certification). The policy to which the 

Centennial policy is immediately above is a First State policy, which has been provided 

to the defendants. (Katz Certification at ¶ 5). Thus, the one following form policy issued 

by a defendant involved in this Motion has been provided disclosure of the applicable 

underlying policy. 

 In addition, the portion of the Puritan policy quoted by the defendants refers to 

the incorporation of only those exclusions ìexcept as otherwise provided herein.î Maneri 

Certification at ¶ 7. What the defendants inexplicably do not provide to this Court is the 

page of the Puritan policy that specifically incorporates the ìAsbestosis Exclusionî of the 

First State policy. (See Exhibit D to the Katz Certification at p. 34

). In addition, the 

language quoted by the defendants also only incorporates (except as otherwise 

provided) the ìUnderlying Umbrella Policies stated in Item 2 of the Declarationsî. (See 

Maneri Certification at ¶ 7). However, Item 2 of the Declarations, also not provided to 

this Court, states that the Underlying Umbrella Policies is solely the First State Policy. 

(See Exhibit D to the Katz Certification at p. 9). The First State policy has been provided 

to the defendants. (Katz Certification at ¶ 5). 

Moreover, it is the burden of a defendant to show the applicability of any 

exclusion incorporated into its policy. See e.g. Madison Construction Co. v. Harleysville 

Mutual Ins. Co., 557 Pa. 595, 605, 735 A.2d 100 (1999). Thus, it is not GRCís burden to 

prove that the exclusionary language of policies which may be incorporated into another 

policy is not valid or effective, but it is part of that defendantsí burden to prove that 

exclusion is applicable to its policy. Therefore, since the underlying policies are not 

necessary for GRC to support its claims, disclosure pursuant to Rule 26(a)(1)(B) is not 

 

4

 The pages have been paginated by GRC. 

Case 2:04-cv-03509-EL Document 141 Filed 04/29/05 Page 6 of 14
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required. Moreover, even if the defendants were somehow correct in this assertion, at 

most GRC would be required to identify those policies which underlie policies which 

have following form language, and not every single liability policy ever sold to GRC. 

Finally, although the moving defendants allege that there are missing policies 

underlying certain of their policies, none of the moving defendants in their Rule 26 

disclosures specifically refer to any of the policies to which they sit above. (See Exhibit B 

to Katz Certification). Therefore, to the extent that any defendant purports to assert as a 

defense that exclusionary language in any of its underlying policies (or the failure to 

exhaust underlying policies) has not been satisfied, the moving defendants 

disingenuously do not provide any Rule 26 disclosure or reference to any of these 

policies. Moreover, to the extent that the defendants assert claims for contribution 

and/or indemnity, they must also provide disclosure with respect to these claims. In this 

regard, all but two of the moving defendants have not only denied the claims in this 

case, but have cross-claimed against all the other defendants. In addition, each and 

every one of the defendants is subject to cross claims for contribution and indemnity 

from the other carriers in this case. Irrespective, none of the moving defendants have 

referred to any specific policy other than their own policy in their Rule 26(a)(1) 

disclosures. (See Exhibit B to Katz Certification). 

 Defendantsí third basis for seeking disclosure of all general liability policies 

issued to GRC, also on page 6 of their Memorandum, is their claim that proof of 

exhaustion of the missing policies is required before the policies that sit above those 

missing policies could be triggered. Defendants cite to no legal authorities to support 

this claim. Indeed, the defendants admit that GRC has neither alleged nor proven that 

these unidentified missing policies have been exhausted. (See Def. Memo at p.6) If 

GRC has not even alleged that the missing policies have been exhausted, then GRC 

obviously does not believe it must prove such exhaustion. Should GRC determine that it 

Case 2:04-cv-03509-EL Document 141 Filed 04/29/05 Page 7 of 14
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believes that at some point it must prove underlying exhaustion of any particular policy, it 

will provide such information to the defendants. 

 The fourth and last purported basis for defendantsí Motion, also at page 6 of their 

Memorandum, is the claim that this information ìÖis necessary to identify insurers who 

may also be liable to provide coverage to GRC, and who may be liable for contribution 

and/or indemnification with respect to payments made to satisfy a judgment in this 

matter.î In this regard, the defendants appear to be relying upon Rule 26(a)(1)(D), 

which relates to insurance policies that might be issued to the defendants to cover their 

liability, such as reinsurance agreements, but does not relate to each and every 

insurance policy issued to the plaintiff which may be liable over to one of the defendants 

for contribution and/or indemnification. See supra at page 3 and Note 1. In addition, the 

issue of other insurance was fully briefed by GRC with respect to its Rule 19 submission 

to this Court, which arguments GRC incorporates herein by reference. Should the 

defendant insurance companies believe that they are entitled to seek contribution and/or 

indemnification from other carriers/defendants, the appropriate time to assert such 

claims is in the pleadings in this case (which many have done, but only as to other 

defendants), to provide their Rule 26(a)(1) disclosures as to their claims (which none of 

them have specifically done) and to seek discovery not pursuant to Rule 26(a)(1), but 

pursuant to the other applicable Federal Rules. 

CONCLUSION

 Based upon the foregoing, it is apparent that the Motion by the defendants for 

disclosure pursuant to Rule 26(a)(1) was not made in good faith or with a reasonable 

basis. Indeed, what is evident from their Motion is that they are the ones that have 

violated Rule 26(a)(1), and that they have already described by category each and every 

one of the documents to which they believe they are entitled. Thus, they have the 

description required by Rule 26(a)(1)(B). In addition, as to location, the only place that 

Case 2:04-cv-03509-EL Document 141 Filed 04/29/05 Page 8 of 14
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these documents would be to the extent they were in the possession, custody or control 

of GRC would be with GRC or its counsel. Finally, their own disclosures are inconsistent 

with their assertions and they have not complied with Rule 26(a)(1). 

GRC has moved forward with this case in a prompt and reasonable manner. 

GRC provided its initial disclosures pursuant to Rule 26 months before they were due. 

In January, 2005 GRC also served its initial discovery requests on the defendants. The 

defendants are already seeking to unreasonably delay this case, and harass the plaintiff 

into submission. Therefore, it is respectfully submitted the defendantsí Motion be denied 

in all respects, and that GRC be granted its costs, including its attorneys fees, in having 

to respond to this Motion. 

 Respectfully submitted, 

 /s/ 

 Barry L. Katz 

 Attorney for Plaintiff, 

 General Refractories Company 

 225 City Avenue, Suite 14 

 Bala Cynwyd, PA 19004 

 (610) 660-8806 

 (610) 660-8817 ñ facsimile 

 BarrylKatz@aol.com

Dated: April 29, 2005 

 

Case 2:04-cv-03509-EL Document 141 Filed 04/29/05 Page 9 of 14
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IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

General Refractories Company 

Plaintiff, 

 v. 

First State Insurance Company, et al. 

Defendants. 

Civil Action No. 04-CV-3509-EL 

CERTIFICATION OF COUNSEL 

 Barry L. Katz, hereby certifies as follows: 

 1. I am an attorney at law admitted to practice in the Commonwealth of 

Pennsylvania and the Eastern District of Pennsylvania, and am attorney for the Plaintiff, 

General Refractories Company (ìGRCî), in this matter. I am familiar with the facts set 

forth herein. 

 2. Attached hereto as Exhibit A is a letter from Bradley J. Mortensen of 

Christie, Pabarue, Mortensen & Young to me dated February 2, 2005. 

 3. Attached hereto as Exhibit B are the Rule 26(a)(1) disclosures of the 

moving defendants. 

 5. Attached hereto as Exhibit C is a copy of the Centennial Policy from 

GRCís files. The policy immediately underneath this policy is a First State policy, which 

was produced to the defendants as part of GRCís Rule 26 disclosures. 

Case 2:04-cv-03509-EL Document 141 Filed 04/29/05 Page 10 of 14
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 6. Attached hereto as Exhibit D is a copy of the Puritan Policy from GRCís 

files, paginated at the bottom by me. 

 

 /s/ 

 Barry L. Katz 

 225 City Avenue, Suite 14 

 Bala Cynwyd, PA 19004 

 Atty. I.D. 58662 

Dated: April 29, 2005 (610) 660 8806 

 

Case 2:04-cv-03509-EL Document 141 Filed 04/29/05 Page 11 of 14
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CERTIFICATE OF SERVICE 

 I, Barry L. Katz, hereby certify that on this date, I have served a true and 

correct copy of the attached pleading via electronic delivery and U.S. mail, addressed as 

follows: 

C. Lawrence Holmes, Esquire 

Frank Maneri, Esquire 

James J. Rogers, Esquire 

Thomas Vecchio, Esquire 

Dilworth Paxson, LLP 

3200 Mellon Bank Center 

1735 Market Street 

Philadelphia, PA 19103-7595 

Paul M. Hummer, Esquire 

J. Monahan, Esquire 

Saul Ewing, LLP 

Centre Square West 

1500 Market Street, 38th Floor 

Philadelphia, PA 19102-2186 

Paul M. Quinones, Esquire 

Ernest J. Bernabei, III, Esquire 

Harvey Pennington 

1835 Market Street 

29th Floor 

Philadelphia, PA 19103-2989 

Samuel J. Arena, Esquire 

Kimberly A. Hendrix, Esquire 

Stradley Ronon 

2600 One Commerce Square 

Philadelphia, PA 19103-7098 

Karen H. Moriarty, Esquire 

Kevin E. Wolff, Esquire 

Coughlin Duffy 

350 Mount Kemble Avenue 

P.O. Box 1917 

Morristown, NJ 07962-1917 

Case 2:04-cv-03509-EL Document 141 Filed 04/29/05 Page 12 of 14
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Peter Rosenthal, Esquire 

Marjorie Weiss, Esquire 

Patricia B. Santelle, Esquire 

White and Williams, LLP 

1800 One Liberty Place 

1650 Market Street 

Philadelphia, PA 19103 

Daniel C. Cedrone, Esquire 

Bradley Mortensen, Esquire 

Miles E. Twaddell, Esquire 

Christie Pabarue 

1880 JFK Boulevard 

10th Floor 

Philadelphia, PA 19103 

Wendy Koch, Esquire 

Koch & Corboy 

101 Greenwood Avenue 

Suite 460 

Jenkintown, PA 19046 

William K. Conklin, Esquire 

Chester F. Darlington, Esquire 

Eric A. Fitzgerald, Esquire 

Marshall, Dennehey, Warner 

1845 Walnut Street 

Philadelphia, PA 19103 

Elit R. Felix, II, Esquire 

Margolis Edelstein 

The Curtis Center, 4th Floor 

601 Walnut Street 

Philadelphia, PA 19106-3304 

William J, Bowman, Esquire 

H. Christopher Bartolomucci, Esquire 

Ann M. Ungvarsky, Esquire 

Hogan & Hartson, LLP 

555 Thirteenth Street, NW 

Washington, DC 20004 

James F. McNaboe, Esquire 

Cortner McNaboe Colliau & Elenius 

1100 Cornwall Road, 1st Fl. South 

P.O. Box 904 

Monmouth Junction, NJ 08852 

Case 2:04-cv-03509-EL Document 141 Filed 04/29/05 Page 13 of 14
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M. Paul Gorfinkel, Esquire 

Tara Staggs, Esquire 

Rivkin Radler, LLP 

EAB Plaza 

Uniondale, NY 11555-0111 

Jennifer A. Gallagher, Esquire 

Daniel I. Schlessinger, Esquire 

Lord, Bissell & Brook, LLP 

115 South LaSalle Street, Ste. 2900 

Chicago, IL 60603 

Wendy E. Schultz, Esquire 

Lynberg & Watkins, P.C. 

International Tower Plaza 

16th Floor 

888 South Figueroa Street 

Los Angeles, CA 90017 

 /s/ 

 Barry L. Katz, Esquire 

 Attorney for Plaintiff 

 Atty. I.D. No. 58662 

Dated: April 29, 2005 

Case 2:04-cv-03509-EL Document 141 Filed 04/29/05 Page 14 of 14