United States District Court, D. New Jersey
McNulty, United States District Judge.
case requires the Court to review the defense and settlement
on behalf of Carquest Corporation in a 2007 action presided
over by District Judge Wigenton and Magistrate Judge (later
District Judge) Salas in this Court. Mechin v. Carquest Corp.,
07-cv-5824 (D.N.J.) (the "Mechin action"). In the
Mechin action, a young man sued Voltec Industries, LLC
("Voltec"), TMC/Tasco, and three interrelated
Carquest entities-Carquest Corporation, Carquest Products,
Inc. ("CPI"), and BWP Distributors, Inc.
("BWP")-for injuries resulting from a garage
accident involving a Carquest Trouble Light. Hartford
defended Voltec, TMC/Tasco, Carquest Corporation, CPI and
BWP, taking on the Carquest entities as additional insureds
on its Voltec Policy. Eventually, the Mechin case settled.
Voltec agreed to pay $900, 000; TMC/Tasco, $1, 750, 000; and
the Carquest entities, collectively, $2, 050, 000. The
dispute here is whether responsibility for that $2, 050, 000
should be allocated evenly among the three Carquest entities,
or some other way. Why would these related corporations care?
Actually, they apparently don't, and, to the chagrin of
Peerless, that indifference seems to be reflected in the
evidentiary record of the Mechin action. The problem here is
that the three Carquest entities have separate insurance
carriers, to whom the allocation makes a great deal of
difference. Hence this action, in which the parties are
the Mechin Action was still pending, Hartford (which assumed
the defense of all three Carquest entities) filed this action
seeking a declaratory judgment against Carquest
Corporation's primary insurer, Peerless Insurance Company
("Peerless"), as well as the insurers of BWP and
CPI. BWP's and CPI's insurers have settled, but the
dispute between Hartford and Peerless remains. Peerless
(along with other insurers) has filed a counterclaim against
Hartford for breach of fiduciary duty, negligence, and breach
additional recurring issue in this litigation relates to
indemnification. In the Mechin action, before Hartford
undertook the defense of the Carquest entities, Carquest
Corporation and CPI individually filed claims for
contribution and indemnification against Voltec. Later in the
case, they moved for summary judgment, arguing that Voltec
and TMC/Tasco must indemnify them under the provisions of a
contract between Voltec and CPI. Voltec cross-moved for
summary judgment with respect to the Carquest entities'
indemnification claim. Judge Wigenton, finding the language
of the indemnification agreement to be insufficiently clear,
granted Voltec summary judgment and dismissed the
indemnification claim. In this action, Peerless has attempted
to relitigate that issue.
gleaned the following claims from the complaints (DE 1, 27),
Judge Wigenton's docket, and the joint pretrial order (DE
219). To summarize, the claims now before me are:
• Hartford's claim for one-third of the defense
costs and one-third of the indemnity cost paid on behalf of
the Carquest entities in settling the Mechin action.
Peerless, in response, asserts estoppel. Hartford, it says,
unfairly pursued a defense strategy that neglected (a) the
indemnity claim of its insured, Carquest Corporation, against
Voltec,  and (b) arguments that Carquest
Corporation bore no responsibility for the injury. Peerless
further asserts that, even if contribution is appropriate, a
one-third allocation is not reasonable.
â¢ Peerless's claim against Hartford for breach of its
fiduciary duty to Carquest Corporation (and, by extension,
â¢ Peerless's claim against Hartford for breach of its
insurance contract for failing to appoint independent counsel
for Carquest Corporation.
â¢ Peerless's claim that Hartford was negligent in its
control and management of the defense of the claims against
the dates of December 3, 2018 and December 11, 2018, I held a
bench trial on all outstanding factual issues. The court heard
testimony, both from live witnesses and via read-ins from
depositions. Each party was afforded the right to
cross-examine as appropriate. Exhibits were introduced in
evidence. The parties were given the additional opportunity
to designate and submit deposition excerpts from this action
and the underlying Mechin action.
FINDINGS OF FACT
Mechin, an auto mechanic, suffered burn injuries when a gas
tank toppled onto a "Professional Duty Carquest Trouble
Light," igniting gas that had spilled on Mechin's
clothing. Pl. Exs. 374, 117, 108; see also Stipulated Facts
¶ 5. As a result of the accident, Mechin was in
a coma for four weeks and was left with permanent scarring on
his neck, upper extremities, torso, and hands. PL Ex. 374,
117, 108. Aside from permanent disfigurement, he also
suffered psychological injuries. 4T 841:17-849:13; Pl. Exs.
December 2007, Mechin sued Carquest Corporation, alleging his
injuries were the result of "the "the Carquest
Trouble Light being defectively designed, manufactured,
distributed, sold," and asserting breach of express
warranty. Pl. Ex. 99; see also Stipulated Facts
¶ 6. Mechin sought recovery under the New Jersey Product
Liability Act, N.J. Stat. Ann. § 2A:58C-1, et
seq. Under the NJPLA, liability can attach to those who
manufacture, sell or market defective products. Ex. 398;
Stipulated Facts ¶ 8.
April 2008, Mechin amended his Complaint to name CPI, Tasco,
Voltec, and BWP Industries, Inc. ("BWP"). Pl. Ex.
99; Stipulated Facts ¶ 7.
they first entered appearances in the Underlying Action,
Carquest Corporation, CPI, BWP, and Voltec each had separate
counsel, appointed by their respective insurers. Stipulated
Facts ¶ 9.
the outset of the action, the defendants' insurance
coverage was as follows:
â¢ Voltec had business liability insurance
with a primary coverage (limited to $2 million per
occurrence) and an umbrella coverage (also limited to $2
million per occurrence) from Hartford.
(Hartford also issued insurance to TMC.)
â¢ Carquest Corporation held commercial
general liability insurance from, collectively,
â¢ CPI held both a commercial general
liability insurance and umbrella coverage from Universal
Underwriters Insurance Company ("UUIC").
â¢ BWP held commercial general liability
insurance from Zurich American Insurance Company
Stipulated Facts ¶ 10.
Peerless initially controls Carquest Corporation's
August 4, 2008, Carquest Corporation asserted a cross-claim
against Voltec for contractual indemnification. Def. Ex. 26;
Carquest Corporation also asserted a cross-claim against BWP.
Def. Ex. 26; 4T.991:18-992:20.
Peerless controlled the defense of the Mechin Action (from
its outset to April 2009), Peerless did not seek dismissal or
move for summary judgment on behalf of Carquest Corporation.
5T. 1093:7-15; Kotcher Dep. at 31:21-32:23; 38:5-13; Gagner
Dep. at 66:4-8.
Contract between Voltec and CPI, and the Carquest
entities' tender to Hartford
early 2008, Carquest Corporation, CPI and BWP (the
"Carquest entities") sought coverage from Hartford,
referencing the supply contract between Voltec and CPI and
the indemnification provision therein. Def. Ex. 19. The
Hartford policy provided coverage for "vendors" as
additional insureds by contract. Policy, Business Liability
Coverage Form, Sec. C(6)(a), Pl. Ex. 400. The contract also
included Section 2.4, titled "Indemnification,"
(a) The Supplier shall indemnify and hold harmless the
Company, CARQUEST Corp. and each Member against any and all
liabilities, losses, damages, costs, and expenses, including
court costs and reasonable attorney's fees, that the
Company, CARQUEST Corp. or any Member may incur or sustain by
reason of any claim, demand, legal actions or judgment based
upon or arising out of (i) any alleged or actual
misappropriation or infringement by the Supplier of the trade
secrets, patent rights, trademarks, copyrights or other
industrial property rights of others in connection with the
Supplier's manufacture and/or sale of the Products, or
(ii) any alleged or actual defects of any kind in the design,
manufacture, preparation, or handling of the Products;
provided that the Supplier shall not be liable for the gross
negligence or willful misconduct of the Company, CARQUEST
Corp. or any Member. The Supplier agrees to defend any claim,
demand, action, suit, or proceeding brought against the
Company, CARQUEST Corp. or any Member insofar as such claim,
demand, action, suit, or proceeding is based upon or arises
out of the matters referred to in this Agreement; provided
that, upon the Supplier's assumption of such defense, the
Supplier shall not be liable for any attorney's fees of
the Company, CARQUEST Corp. or any Member. The Company,
CARQUEST Corp. or any Member claiming indemnification
hereunder shall provide prompt notice to the Supplier of any
claim, demand or legal action in respect of which
indemnification may be claimed; provided that the failure to
provide such notice shall not release the Supplier for any
liability except and solely to the extent that the Supplier
is materially prejudiced by such failure. The Supplier shall
not be liable for any settlement without its prior written
Def. Ex. 7.
January 31, 2008, Hartford denied the Carquest entities'
tender. Def. Ex. 19.
Hartford assumes the Carquest entities' defense
April 2009, Hartford accepted the tender of the Carquest
Entities and assigned Thomas Mulcahy, Voltec's counsel,
to also represent Carquest Corporation, CPI and BWP.
Stipulated Facts ¶ 11; 4T.1036: 5-1037: 1; DeMerchant
Dep. at 38: 3-39: 4. Hartford did not offer the Carquest
entities, separately or collectively, the option of separate
counsel. 5T.1164:9-25, 1199:4-1200:1.
Hartford asserts that it accepted the tender under the
"vendors" provision. In its acceptance, Hartford
noted that all of the Carquest entities had sought coverage
as "additional insured" and stated that its
coverage would be subject to all policy terms. Peerless
states that Hartford accepted tender in a different letter,
dated April 3, 2009. Def. Ex. 33. In that letter, Giarrizzo
The Hartford will agree to indemnify and defend Carquest
against any and all claims of the plaintiff, Jean Michael
Mechin, and will assume Carquest's defenses and dismiss
all cross-claims against said entities subject to a full
reservation of rights which would allow The Hartford to
disclaim its coverage obligation to Carquest in the event
discovery reveals that the subject product at issue in this
litigation is proven not to be a product imported and
distributed by any of the The Hartford's named
Def. Ex. 33.
Mechin, the plaintiff, was represented by David Mazie, Esq.
Pl. Ex. 398.
Mulcahy described Mazie as "a very capable opponent.
He's a formidable plaintiffs lawyer." 4T.814:5-6.
John Maucher, Mulcahy's successor as the Carquest
entities' lawyer, described Mazie as "very
professional [-] he knew what he was doing."
Peerless asserts that Hartford employees responsible for
overseeing the defense of the Carquest entities were
"confused" about the respective roles of the
companies in the marketing and sale of the Trouble Light. IT.
169:16-24; Pl. Ex. 80; 4T.1073:11-20, 1076:13-18, 1077:16-24,
1079:1-5; 5T.1222:2-1223:3. Peerless also notes that, at the
outset of the Mechin action, a Hartford representative had a
conversation with Frederick Kotcher (see ¶ 18,
infra) in which Kotcher stated that Carquest
Corporation was wrongly named as a defendant and had not
participated in the chain of distribution. 5T.
Innocent seller defense
Voltec, Carquest, CPI, and BWP assured Hartford that none of
them had been materially involved in the marketing, labeling,
warnings, design or manufacture of the Trouble Light.
DeMerchant read-in, 4T. 1037:4-12; DeMerchant Dep. at 42:
21-43: 6; Herman Dep. at 5-50: 13; 118: 23-120: 7; Kotcher
Testimony, 5T.1094:3-11; Kotcher Dep. at 90:8-94:23.
Thus, the Carquest entities, through Mulcahy and, later, John
Maucher, pursued an "innocent seller" defense.
4T.811:18-812:14; Pl. Exs. 117, 127,  492. Gagner, who monitored the
file at Peerless, Pl. Ex. 65, 66, understood that Mulcahy was
pursuing a joint "innocent seller" defense. Gagner
Dep. at 108:18-109:25. She did not raise an issue of conflict
with Mulcahy pursuing the joint defense. 4T. 1049:19-1050:16;
Gagner Dep. at 88:23-89:25.
Overlapping principals of the Carquest entities
Frederick Kotcher served as the principal for Carquest Corp.
and CPI. 5T1091:7-23, Kotcher Dep. at 24:10-22; Wicker Dep.
at 26:6-17. Kotcher was Vice President of Corporate
Administration for General Parts of Raleigh, NC. Kotcher Dep.
at 19:18-20:24. During the Mechin Action, Kotcher served as
an outside consultant to General Parts, Carquest Corporation
and CPI. 5T.1089: 23-1091:4. Kotcher is not a lawyer.
5T.1089: 18-20; Kotcher Dep. at 13:7-24:1.
Robert Wicker was the General Counsel for General Parts
International ("GPI"). GPI's subsidiary is
General Parts, Inc., which along with BWP and other
subsidiaries, were the shareholders of Carquest Corporation.
Wicker's role was to advise Frederick Kotcher.
5T.1106:21-1107:1; Wicker Dep. at 19:12-24:12; 26:6-17.
Herman, an independent lawyer, was officially the principal
for BWP throughout the Mechin action. 4T. 1068:14-21, Herman
Dep. at 11:18-12:21.
When Mulcahy represented the defendants, and at the beginning
of Maucher's representation, Herman acted as the primary
contact for the three Carquest entities: Carquest Corp., BWP,
and CPI. 4T.816:20-817:14; 1T.63:24-64:8; 1T.68:19-69:7;
4T.1031:25-1032:16; see also Exs 311, 312, 116.
Herman attended most depositions in the case and every
deposition for the Carquest, BWP, and CPI witnesses.
Kotcher consulted with both Wicker and Herman regarding the
Mechin action. 5T.1092:13-1093:2. Kotcher Dep. at 27:7-28:1;
Kotcher testified that Carquest Corp. and CPI coordinated
their defense with BWP throughout the Mechin action. 5T.
1092:2-9, Kotcher Dep. at 25:12-20.
Thomas Mulcahy, Esq.
Defense Counsel Thomas Mulcahy has handled over 500 civil
bodily injury cases for Hartford and other insurers.
4T.806:11-25. He has never been brought before the Committee
on Professional Responsibility. 4T.807:22-24.
Mulcahy testified that, during his time representing the
Carquest entities, there was no discord among those entities
regarding his defense strategy. 4T.873:4-14.
one point, Voltec and the Carquest entities were in
disagreement over whether to file a third-party complaint
against Firestone, Mechin's employer. Pl. Exs. 311, 111;
4T.816-5-820:23. However, by March 2, 2010, Mulcahy reported
that Voltec and Carquest agreed that there was insufficient
evidence to sue Firestone. Pl. Ex. 117, at 6.
the beginning of Mr. Mulcahy's representation, Herman was
concerned about the fact that one law firm was representing
all of the Carquest entities and Voltec. Pl. Ex. 117. That
issue became heightened when it was disclosed that TMC/Tasco,
which has the same owner as Voltec, had a close relationship
with the importing company. Pl. Ex. 117. See Miller
Dep. at 8-30. However, once the litigation went into
discovery, Herman was "on board" with the defense
strategy that all three Carquest entities should press an
"innocent seller" defense. 4T.873.12-19.
Deposition testimony during Mulcahy's representation
regarding the roles of the Carquest entities
During discovery, Mulcahy prepared the witnesses to be
detailed and explicit as to what the respective roles of the
corporations were. 4T.959:3-12. However, as described
infra, those very witnesses created confusion as to
each Carquest entities' role in the marketing and chain
of distribution for the Trouble Light. Generally, the
witnesses did not clearly distinguish between the Carquest
entities and often times mixed up their names. See
infra ¶¶ 27-33.
Peerless has submitted significant evidence to demonstrate
that Carquest Corporation did not participate in marketing or
the chain of distribution. Nevertheless, evidence existed in
the record of the Mechin action that would tend to implicate
Lewis, the CPI Market Director and corporate designee (Lewis
Dep. at 5), created uncertainty as to:
(a) the specific role each Carquest entity played in
marketing and labeling the Trouble Light, id. at
57:16-58:5, 89:9-25; 90:3-6, 109:4-9;
(b) the relationships among the Carquest entities,
id. at 6:1-8, 13:1-14:24, 25:12-19, 32:1-17,
(c) Carquest Corporation's role in the chain of
distribution. Id. 60:13-61:22, 90:7-16.
witnesses from BWP marketing added to the confusion regarding
Carquest's Corporation's role in marketing the
product. Manno Dep. at 7-8, 11; Pallai Dep. at 24-25,
(a) Gaic Manno, the Carquest Marketing Manager at BWP,
testified that, to advertise the 81829 Trouble Light, he took
and paraphrased language from the Carquest service line
catalog and included it in a flyer, Manno Dep. at 11; at
another point, Manno had testified that Carquest corporation
puts out the Carquest catalogs and commercial advertising.
Id. at 7.
(b) Richard Pallai, Vice President of Marketing at BWP,
testified that BWP, another Carquest member, or an
independent Carquest store could have made a flyer regarding
the 81829 Trouble Light. Pallai Dep. at 24-25.
witnesses from Voltec also created confusion by using
"Carquest" as a catchall term for all three
entities, or for CPI. Miller Dep. at 56-58, 81:17-21, 98-99,
101:19-102:8; Wray Dep. at 33:16-21.
(a) Thomas Miller, the founder and owner of TMC/Tasco and
Voltec, see Miller Dep. at 8-30, stated that Voltec
sold the trouble light to "Carquest." Id.
at 56-58. Miller stated that he was not aware of any
instances in which TMC/Tasco or Voltec sold their products to
CPI. Id. Miller also testified that, as he
understood it, "Carquest" sold the trouble light to
Firestone. Id. at 98-99. Further, Miller testified
that "Carquest" created the actual packaging on the
box for Trouble Light. Id. at 81:17-21.
(b) John Wray, Vice President of Sales for the Automotive
Division of Voltec, testified that Voltec sells to Carquest
Products Incorporation (CPI). Wray Dep. at 33:16-21. Wray
testified that "Carquest" designed the packaging,
then specified that Carquest Products "designed it and
provided the designs back to us." Id. at
53:6-54:14. At points in his answers, Wray would use the name
"Carquest," as opposed to CPI or Carquest Products.
See e.g., Id. Further, Wray testified that he did
not know who owned "Carquest, CPI, or BWP;" he then
stated CPI is owned by Carquest and, by common knowledge in
the marketplace, BWP is an independently owned Carquest
distributor. Id. 34:1-22.
During this bench trial, Mulcahy stated that he did not ask
questions after Mazie concluded his examination. In his view,
doing so would have been a classic young lawyer's
mistake; it would only confuse the client and dig "a
deeper hole." 4T.915:16-916:13.
Mulcahy sent two reports to Hartford providing updates on the
state of the case. Pl. Exs. 117; 107.
Margaret Gagner, the Peerless adjuster, was copied on both of
Mulcahy's letter reports, and both were re-sent to her on
March 30, 2010. Pl. Ex. 67. Mulcahy testified that he never
received criticism from Gagner. 4T.873.9-11. At no time did
Gagner request that separate counsel be retained to defend
Carquest Corporation. 4T. 1051:25-1052:4.
March 2, 2010 report
March 2, 2010, Mulcahy reported to Hartford on the state of
the case. Pl. Ex. 117. Mulcahy wrote:
In my opinion, our Carquest clients are somewhat vulnerable
in this litigation arising from the degree to which they
claimed to know nothing about the testing which may or may
not have been performed . . .Those lights were marketed under
the Carquest brand, but the Carquest entities have done
essentially no testing on the product relative to their
Pl. Ex. 117 p. 20.
Mulcahy reported that one of Mazie's theories was that
"as an entity that markets its products under the
Carquest brand" to service station customers, the
Carquest-related companies had a duty to sell products that
could be safely used in that work environment. Pl. Ex. 117,
p. 3. Mulcahy also reported that Mazie was attempting to
prove that the Carquest companies were not mere distributors,
but rather were "branding" the product, indicating
that they should be held to the same standard as companies
that designed or manufactured the lights. Id. p. 5.
Mulcahy reported that the there was no real challenge
"to the fact that [the Trouble Light] was a Carquest
product," and that the Trouble Light "came through
the Carquest distribution chain of Carquest Corp., CPI and
BWP. . ."Pl. Ex. 117 at 10.
Mulcahy also reported on the anticipated strategy of the
plaintiff to extend liability to all three Carquest entities:
It became fairly clear throughout these depositions that
plaintiffs counsel, David A. Mazie, is going to come after
those entities which were responsible for the Carquest brand
because of the extent of the Carquest brand business . . .
Mr. Mazie will attempt to use the extent of the Carquest
empire to justify the argument that if you are going
to put your name on a product, you should at least have some
knowledge of the testing associated with the product
and the arguable dangers associated with its use under
certain circumstances. I am of the opinion that this is not a
bad argument on plaintiffs behalf.
Pl. Ex. 117 at 24.
Mulcahy also reported that, by the time of Lewis's
deposition, "it had become clear that Carquest had at
least some input into the marketing materials and packaging
for the drop light at issue." Pl. Ex. 117 at 19.
Pallai, Mulcahy reported, made a decision to include the
Trouble Light in the Carquest product flyers that are
distributed throughout the nation. Id. p. 22.
Mulcahy further recounted Pallai's deposition testimony
that BWP was responsible for preparing the flyers, but that
Carquest Corporation was responsible for the creation of the
brochures which had been previously marked. Id.
March 29, 2010, Mulcahy reported to Hartford that the UL
Certification for the Trouble Light was incorrect. Pl. Ex.
107, at 3. Further, Mulcahy reported, the Carquest witnesses
testified that they had relied on Voltec and TMC/Tasco's
representations that the Trouble Light was suitable for the
automotive service environment, id., but the product
had only been tested for "general use."
Id. at 2-3, 9 (citing John Herschbach, a UL expert,
who posited that the Trouble Light was not appropriate for
the automotive service station environment).
Mulcahy's testimony in this action
the end of March 2010, although discovery was not finished,
Mulcahy believed that it was extremely unlikely that he could
obtain summary judgment for any of the individual Carquest
entities, because there was enough evidence relating to each
of the three to create a triable issue. 4T.909:22-410:6.
Mulcahy also found Lewis's deposition to be inconsistent.
Id. 907:1-9. In Mulcahy's experience, "it
doesn't take much for a summary judgment to be denied by
a Court if there's any level of inconsistency in the
factual testimony." Id. 907:7-9.
Mulcahy believed that Mazie's goal was "definitely
attacking [the Carquest entities] as an enterprise."
4T.861:8-12. Illustrating the point, he testified as follows:
As we dealt with individual representatives at depositions,
he would ask that particular person who came from one or the
other of the Carquest entities you know, specifically what
that entity did in connection with the product just to give
himself some background. But I mean, [Mazie], as is the case
with most plaintiff attorneys, didn't really care where
the responsible specific mistake may have been made within
the entities. It was in his interest . . . because Carquest
was such a well-known brand, as being responsible for the
marketing of this product. ... It was pretty apparent that he
was going to have an expert who was going to say that this
particular light was inappropriate for this particular
4T.861:8-826:3. See also 4T.959:24-960:5.
Mulcahy was concerned that Mazie's deposition questioning
signaled an attack on choices to market the Trouble Light to
garages and to place the "Carquest" label on the
Trouble Light without testing or having knowledge of testing.
4T. 867:16-868; 868:19-869:6; 4T.883:2-21; 4T.884:24-885:23;
see also 4T. 869:3-6.
Decision to split off the Voltec file
early April 2010, Hartford adjuster Daniel DeMerchant
determined that there was a potential conflict between the
Carquest entities and Voltec. The conflict arose from past
disagreements about suing Firestone, DeMerchant Dep. at
47:7-48:23, and the discovery that the Carquest entities had
some role in marketing the trouble light, including the
placing of the "Professional-Duty" label on the
box. 45:8-46:17. Thus, he decided to split the file and
retain separate counsel as between the Carquest entities and
Voltec. Id. at 47:7-48:23. Hartford allowed the
Carquest entities to choose their counsel. PL. Ex. 44; 4T.
Herman disagreed with the decision to split the defense.
Maucher's representation of the Carquest
their new, separate counsel, the Carquest entities chose John
Maucher of Mintzer Sarowitz, the firm which had defended BWP
during the first year of the case. Pl. Ex. 119, 294. Hartford
paid Mintzer Sarowitz $159, 230.07 in total for the defense
of the Carquest entities. Pl. Exs. 3, 16-27.
John Maucher has practiced as a civil defense lawyer in New
Jersey since 1995, and during that time he has tried ten
cases before a jury. Maucher specializes in bodily injury
cases. 1T.44:5-46:12. Maucher has never been sued for
malpractice, sanctioned, or brought before the Committee of
Professional Responsibility. Id.
the beginning of his representation, Maucher's client
contact was Herman; he reported to Herman with the
understanding that Herman spoke for all three Carquest
entities. 1T.63:10-64:8. Later, Maucher reported to Herman,
Kotcher, and Wicker jointly. IT.69:4-1.
for the insurance carriers, Maucher reported to Scherer and
Jeter at Hartford, and to Margaret Gagner and her successor,
Donna Jones, at Peerless. 1T.53:5-23, 85:5-86:16, Pl. Ex. 68
(Maucher reaching out to Gagner to discuss the transfer of
Maucher found that Jeter and Scherer paid attention to the
file, and that Jeter would send follow-up e-mails whenever he
sent a report. IT. 176:7-15. That being said, many times,
Maucher communicated with his clients and other insurers
without copying Hartford. PL Exs. 76, 83, 84, 124, 143, 145,
155, 181, 220, 221, 222.
Maucher's relationship with the Carquest
Carquest entities never requested separate counsel, nor did
they advise Maucher that he had a conflict of interest.
1T:49:6-25, 50:7-12, 132:5-9; Herman Dep. at 142:6-144:15,
184:8-10, 313:5-315:4; 5T.1108.4-11.
Maucher testified that none of the Carquest principals
expressed a disagreement over his defense strategy.
1T.49:22-50:6, 189:16-20. See also, 5T. 1092:2-9.
Further, he testified, none of the entities' principals
ever proposed that they assert cross-claims against each
other. 1T:50:13-16. Nor did they ever request that Maucher
cease using "Carquest" as a short-hand designation
for all three entities. IT. 192:13-193:3. From Maucher's
perspective, the Carquest entities "were pretty much a
team." IT. 189:14-15.
Although paid by Hartford, Maucher acted as independent
defense counsel for the Carquest entities. 2T.254:11-255:16;
Pl. Ex. 8; 1T.54:8-55:10.
Maucher's June 26, 2010 status report
June 26, 2010, Maucher submitted a status report to Hartford.
Pl. Ex. 74. Maucher reported that the plaintiffs case would
focus on the fact that the drop lights "should not be
marketed for use by service or repair facilities, such as
Firestone." Id. Maucher noted that Carquest
depositions revealed that the drop light was marketed to the
service and repair industry through "flyers, in store
brochures and pamphlets, etc." Id. Discussing
manufacturing and the chain of distribution, Maucher reported
that "[a]fter TMC/Tasco brings the product ...