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County of Niagara v. Netherlands Insurance Co.

United States District Court, W.D. New York

September 7, 2017

COUNTY OF NIAGARA, Plaintiff,
v.
NETHERLANDS INSURANCE COMPANY, EXCELSIOR INSURANCE COMPANY, T.G.R. ENTERPRISES, INC., and MICHAEL LOMBARDO, Defendants.

          DECISION AND ORDER

          HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE.

         Defendants Netherlands Insurance Company and Excelsior Insurance Company have appealed Magistrate Judge Leslie G. Foschio's Decision and Order (Docket No. 52), which denied their motion to compel the deposition of Plaintiff's counsel, Brian P. Crosby, Esq., and which granted the Plaintiff's cross-motion to quash the Defendants' subpoena for Mr. Crosby's deposition. For the reasons stated below, Judge Foschio's Decision and Order is affirmed.

         DISCUSSION

         The Court recites only those facts relevant to its resolution of this appeal.

         This insurance coverage dispute arises out of the “severe and permanent injuries” Michael Lombardo sustained after windows, weighing at least 300 pounds, fell on his leg during a construction project at Niagara County Community College (NCCC). See Docket No. 37-2 at 2-3.

         Lombardo filed a complaint in Niagara County Supreme Court against Niagara County, NCCC, and NCCC's Board of Trustees. During the resulting bench trial, Lombardo's attorney announced, in open court, that he and Mr. Crosby-counsel for the defendants in the underlying action-had reached “an accommodation”: Lombardo would “drop as [his] targeted defendant Niagara County Community College and its Board of Trustees” in exchange for Niagara County's acknowledgment that it owned the property on which Lombardo had been injured. Docket No. 48 at 8-9. At the end of the trial, Lombardo was awarded $7.25 million in damages. Docket No. 37-2 at 9. Following the verdict, however, the parties agreed to settle the case for $5.5 million, with Niagara County to pay, in total, $3.5 million of that amount. See Docket No. 42-3 at 2.

         Niagara County then filed the complaint in this case, which seeks a declaratory judgment regarding insurance coverage for the underlying lawsuit and settlement. During discovery, the Defendants issued a subpoena for Mr. Crosby's deposition. See Docket No. 37-8. The Plaintiff objected (Docket No. 37-9), the Defendants moved to compel (Docket No. 37), and the Plaintiff filed a cross-motion to quash. See Docket No. 41.

         Judge Foschio filed a Decision and Order denying the Defendants' motion to compel and granting the Plaintiff's cross-motion to quash. Judge Foschio first concluded that the “Defendants' requested deposition of Crosby seeks irrelevant evidence to the issue of whether Defendants' purported disclaimer under the GCL and related UE policies is valid.” Docket No. 52 at 11. In the alternative, Judge Foschio concluded that the subpoena must be quashed because it sought information protected by the attorney work product doctrine. See Id. at 11-17. And, finally, Judge Foschio rejected the Defendants' “alternative request to enforce the subpoena in order to obtain information from Crosby relevant to the reasonableness of the Settlement.” Id. at 21.

         DISCUSSION

         1. Standard of review

         A district court may reverse a magistrate judge's non-dispositive order, such as the one at issue here, only when that order is “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A). A non-dispositive order is clearly erroneous “only if, ” after “considering the entirety of the evidence, ” the reviewing court “is left with the definite and firm conviction that a mistake has been committed.” Centro De La Comunidad Hispana De Locust Valley v. Town of Oyster Bay, 954 F.Supp.2d 127, 139 (E.D.N.Y. 2013) (quotation marks omitted). And a non-dispositive order is contrary to law if the order “fails to apply or misapplies relevant statutes, case law, or rules of procedure.” Id. (quotation marks omitted). “This standard is highly deferential.” Id. (quotation marks omitted). Thus, a district court may not reject a magistrate judge's non-dispositive order “merely because the [district] court would have decided the matter differently.” Rubin v. Valincenti Advisory Svcs., Inc., 471 F.Supp.2d 329, 333 (W.D.N.Y. 2007).

         2. The Defendants' arguments on appeal

         The Defendants argue that Judge Foschio's Decision and Order is “clearly erroneous or contrary to law” for four reasons. The Court addresses each argument in turn.

         First, the Defendants argue that Judge Foschio “erred in determining that former plaintiff Niagara County Community College (‘NCCC') qualifies as an additional insured under the policies at issue.” Docket No. 54 at 1. This claim is based on a footnote in Judge Foschio's Decision and Order which states that, “[c]ontrary to Defendants' assertion, NCCC is an additional ...


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