The opinion of the court was delivered by: WOLIN
Once again, this Court must review a motion for summary judgment in this case. Centennial Insurance Company ("Centennial"), defendant, has filed the current motion because exclusions in the insurance policies it issued to Elizabethtown Water Company ("Elizabethtown"), plaintiff, are the same as the one the Court based its grant of summary judgment for Hartford Casualty Insurance Company ("Hartford"), defendant. In particular, Centennial argues that the "contract liability" exclusions in its Comprehensive General Policies from 1987-88 and 1988-89 ("CGL Policy") and Umbrella Policy are the same as that contained in the Hartford policies. Thus, it concludes that the Court should enter summary judgment in its favor based on the law of the case.
Elizabethtown cross-moves for summary judgment arguing that Centennial should not be allowed to exclude coverage based on its contract liability exclusions. Elizabethtown argues that the Court should preclude Centennial from relying on the exclusions because of estoppel or waiver, or bar the motion as a sanction for filing the motion after the deadline for dispositive motions. Pursuant to Rule 78 of the Federal Rules of Civil Procedure, the Court has decided this motion without oral arguments.
I. Distant History--Discovery Problems
Elizabethtown spends a great deal of time in its brief recounting the discovery disputes that it had with Hartford and Centennial. The Court will briefly review the relevant portions of Elizabethtown's submissions.
On May 28, 1997, Magistrate Judge Pisano presided over a Local Rule 15(E) conference to resolve the discovery disputes. At the conference, Judge Pisano ordered Centennial and Hartford to advise Elizabethtown of the specific exclusions that applied to this coverage dispute. (Fenlon Cert. P 7). Centennial did not specify the exclusions, but relied on its previous answer to Interrogatory No. 11:
11. Identify each and every policy exclusion which you contend precludes coverage to Elizabethtown with respect to the claims asserted against it in the Underlying Action.
ANSWER: Centennial objects to this Interrogatory . . . . Subject to and without waiving these objections, or its general objections, Centennial refers Plaintiff to its Answer in this case, to the letters attached as Exhibits B, D, and F to Centennial's Motion for Partial Summary Judgment, and to the Centennial policies at issue.
(Fenlon Cert. Ex. J) (emphasis added). Paragraph 18 of the Answer states: "Coverage is barred to the extent that the claims asserted arise from liability assumed under a contract and the policies exclude coverage for contractual liability." (Fenlon Cert. Ex. I). The Answer specifically refers to the "Failure to Supply" Endorsement as a grounds for barring coverage. It also provides that Elizabethtown's claims were subject to all the exclusions in the policies. Centennial filed amended answers to Elizabethtown's Interrogatories, but did not change its response to No. 11.
Due to discovery problems, Judge Pisano extended the cut-off date for discovery from August 1, 1997, to September 15, 1997, to December 15, 1997, and finally to January 6, 1998. He also ordered that all dispositive motions had to be returnable on February 9, 1998, but he later revised that date to March 9, 1998, and later to March 23, 1998. Hartford, which filed its moving brief after Centennial filed its moving brief, argued that summary judgment should be granted because of, inter alia, General Exclusion K. Centennial did not join that motion or seek to amend its brief to assert its similar exclusion.
The Court will not review the facts of this case because this Opinion serves as a supplement to the earlier Opinion and because the earlier Opinion exhaustively reviewed the background of this case. The Court will briefly discuss the relevant portion of the first Opinion and the procedural events that have occurred since the first Opinion.
On March 27, 1998, the Court reviewed defendants' motions for summary judgment, and plaintiff's motion to strike. The defendants moved for summary judgment on the grounds that their insurance policies did not cover plaintiff's settlement of the underlying loss. In granting Hartford's motion, the Court found that General Exclusion K in Hartford's policy prohibited Elizabethtown from receiving coverage for its loss. General Exclusion K excluded coverage for: