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Harleysville Insurance Co. v. Church Insurance Co.11/16/2005
ugh, it appears that on "August 23, 1999, Capital notified Church [Insurance Company] of the accident." Neither Harleysville nor Capital explained how or why Capital apparently knew that Church insured Cathedral in August 1999, but only five months later somehow thought that Cathedral was self-insured. In any event, after March, 16, 2000, the date Cathedral filed its answer to Brown's amended complaint and the answers to Form 30 interrogatories, Harleysville, on constructive notice of such a policy, could no longer plead ignorance to the existence of another source of coverage for Capital. As of that filing, neither Capital nor Harleysville could reasonably continue to assume that no other carrier might be responsible for Capital's defense. According to Harleysville's litigation specialist's testimony, at this point, Harleysville, under its normal procedures, after finding out that Cathedral was covered by a commercial policy, should have undertaken some investigation to determine whether Capital was covered under the policy Church issued to Cathedral. Harleysville never undertook this investigation nor did Harleysville's counsel acting for Capital file pretrial discovery exploring the details of the policy Church had issued to Cathedral.
From the record it appears that Harleysville never sent interrogatories or requests for production to Cathedral. Indeed, as noted in its brief, Harleysville took no action until, " fter Church settled Brown's claim against Cathedral [on August 20, 2001] but [two business days] before trial, [on September 6, 2001] Capital requested a copy of the Church policy, which had never been produced, and asked Church for a defense." Harleysville continued: "Church refused to take over the defense and refused to produce a copy of its insurance policy. The policy was finally produced pursuant to a motion to compel." Superficially, this statement makes Church look culpable and indeed lends support to Harleysville's argument that Church did everything it could to keep coverage information from Capital. Nevertheless, a closer look at Harleysville's citations supporting its statement of facts and the dates is instructive and undercuts Harleysville's position. In support of the statement in the brief that Church only produced the policy pursuant to a motion to compel, Harleysville cited to the record of the hearing on a motion to compel that the Superior Court commissioner heard on May 10, 2004 and to the deposition testimony of Michael Lindgren, a Church claims adjuster, taken on March 12, 2004.
In an earlier portion of the transcript of the hearing on the motion to compel, not included in Harleysville's appendix, while Ms. Aronson, an attorney representing Brown, was giving the Commissioner background facts, the following interchange occurred:
Ms. Aronson: In the answers to Form 30 interrogatories, Cathedral, the owner, never disclosed that Church insured both the owner and the real estate manager. So we went through a trial, not knowing that the Church Insurance Company actually insured the real estate manager as well..
The Court: Now you said they didn't disclose. Was there discovery propounded that would have required them to disclose that?
Ms. Aronson: There was the answers to the Form 30 interrogatories which require the disclosure of insurance covering the risk and the limits on that. But I do not recall there being additional discovery propounded.
Rather than conducting a timely investigation into whether Capital was covered under Cathedral's policy, on March 17, 2000 Harleysville's designated counsel filed Capital's answer to Brown's complaint and Cathedral's cross-claim. From this point on, Harleysville conducted
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