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TIG INSURANCE COMPANY v. NEWMONT MINING CORPORATION

October 3, 2005.

TIG INSURANCE COMPANY, successor by merger to International Insurance Company, Plaintiff,
v.
NEWMONT MINING CORPORATION, Defendant.



The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge

OPINION AND ORDER

I. INTRODUCTION

  Newmont Mining Corporation ("Newmont") moves in limine to (1) preclude TIG Insurance Company ("TIG") from claiming that it is entitled to interest as damages for untimely payments ("Interest Motion")*fn1 and (2) limit or preclude the testimony of Dennis Neier,*fn2 TIG's proposed expert witness on interest ("Expert Motion").*fn3 For the following reasons, the Interest Motion is denied, and the Expert Motion is granted in part and denied in part.

  II. BACKGROUND

  Newmont and TIG are parties to a Settlement Agreement which required Newmont to remit certain payments to TIG on a set timetable.*fn4 The Agreement settled prior litigation between Newmont and TIG's predecessor in interest, International Insurance Company ("International"), related to International's liability to Newmont for costs of clean-up of environmental contamination at Newmont's Idarado and Resurrection mining sites in Colorado. The Agreement required Newmont to "periodically" deliver to TIG copies of documents filed in other actions by Newmont against third party insurers.*fn5 In the event that Newmont reached settlements with third parties, Newmont was to remit twenty percent of the net recovery to TIG.*fn6 The Agreement also required Newmont to make any payments due to TIG by a fixed date every six months.*fn7 Newmont was to provide an affirmation certifying the amounts of any settlements and expenses.*fn8 The Agreement was silent on the question of interest on late payments.

  In this action, TIG claims that Newmont failed to make payments according to the timetable set by the Agreement, and that TIG suffered damages as a result.*fn9 TIG's alleged damages are twofold: first, interest on the principal amount of each late payment accruing from the time it was due until the time it was paid (the "Late Payment Damages"), and second, interest on the Late Payment Damages, calculated from the time the payment of principal was made until the date a judgment is rendered by this Court.

  In its Interest Motion, Newmont argues that (1) New York law*fn10 does not allow a party to recover interest for delays in payment where the principal was eventually paid, (2) TIG may not recover interest because it did not demand the principal until after this litigation commenced, and (3) certain of TIG's claims are time barred. In its Expert Motion, Newmont argues that Neier's testimony should be precluded because the Late Payment Damages are not recoverable and interest is a question of law.

  III. APPLICABLE LAW

  A. Legal Standard

  1. Summary Judgment

  The issues raised in the Interest Motion are not evidentiary questions, but rather legal issues which should have been raised in a motion for summary judgment.*fn11 This Court will therefore apply the standard for a motion for summary judgment to the Interest Motion. Summary judgment is appropriate if the evidence of record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."*fn12 "An issue of fact is genuine `if the evidence is such that a jury could return a verdict for the nonmoving party.'"*fn13 "A fact is material for these purposes if it `might affect the outcome of the suit under the governing law.'"*fn14 The movant has the burden of demonstrating that no genuine issue of material fact exists.*fn15 In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. To do so, it "must do more than simply show that there is some metaphysical doubt as to the material facts,"*fn16 and it must "come forward with `specific facts showing that there is a genuine issue for trial.'"*fn17 In determining whether a genuine issue of material fact exists, the court must construe the evidence in the light most favorable to the non-moving party and draw all inferences in that party's favor.*fn18

  2. Admission of Expert Testimony

  Rule 702 of the Federal Rules of Evidence states the following requirements for the admission of expert testimony into evidence:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.*fn19
Under Rule 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc.,*fn20 the trial judge must determine whether the proposed testimony "both rests on a reliable foundation and is relevant to the task at hand."*fn21

  Expert testimony may not usurp the role of the court in determining the applicable law.*fn22 While an expert "may opine on an issue of fact," an expert "may not give testimony stating ultimate legal conclusions based on those facts."*fn23 Expert testimony is inadmissible when it addresses "lay matters which [the ...


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