IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
MOTORS LIQUIDATION
COMPANY DIP LENDERS TRUST,
Plaintiff,
v. C.A. NO. Nl lC-12-022 PRW CCLD
ALLIANZ INSURANCE COMP NY,
et al.,
Defendants.
Submitted: May 25, 2017
Decided: June 8, 2017
MEMORANDUM OPINION AND ORDER
Upon Defendants OneBeacon Ins. Co. & Continental Casuallfy lns. C0. ’s
Motions for Summary Jua’gment on Trigger and Suz`t Limitations,
DENIED.
Upon Defendant OneBeacon Ins. C0. ’s Motianor Summary Jua’gment on
Transfer OfRights,
DENIED.
Upon Plainti]j”Motors Liquidation Co. DIP Lenders Trust’s Cross-Motionsfor
Summary Jua’gment on Transfer of Rights and Trigger,
GRANTED.
Upon Defendants OneBeacon Ins. Co. & Continental Casualty lns. Co. ’s
Cross-Motz`onsfor Partial Summarjy Jua’gment on Number OfOccurrences,
DENIED.
Upon PIaintz`jj”Motol/s Liquia’ation C0. DIP Lenders Trust ’s Renewea’ Motionfor
Partial Summarjy Judgment on the Number of Occurrences,
GRANTED.
Upon Defendants OneBeacOn lns. C0. & Continental Casualty Ins. C0. ’s Cross-
Motl`ons for Summary Judgment On Allocation,
GRANTED.
Upon Plal`ntl`ffMotors Lz`quidation C0. DIP Lenders Trust ’s Renewea’ Motion for
Partial Summarjy Judgmem on Allocation,
DENIED.
Jermifer C. Wasson, Esquire, Carla M. Jones, Esquire, Potter Anderson & Corroon,
LLP, Wilmington, DE, Selena J. Linde, Esquire (pro hac vice), Michael T.
Sharkey, Esquire (pro hac vice) (argued), Perkins Coie LLP, Washington, D.C.,
Attorneys for Plaintiffs Motors Liquidation Co. DIP Lenders Trust.
Carmella P. Keener, Esquire, Rosenthal, Monhait & Goddess, P.A., Wilmington,
DE, John S. Favate, Esquire (pro hac vice), Henry T.M. LeFevre-Snee, Esquire
(pro hac vice) (argued), Hardin, Kundala, McKeon & Poletto, P.A., Attorneys for
Defendant OneBeacon lnsurance Company.
Carmella P. Keener, Esquire, Rosenthal, Monhait & Goddess, P.A., Wilmington,
DE, Ronald P. Schiller, Esquire (pro hac vice), Michael R. Carlson, Esquire (pro
hac vice), Lisa M. Salazar, Esquire (pro hac vice) (argued), Hangley Aronchick
Seg,al Pudlin & Schiller, Attorneys for Defendant Continental Casualty Insurance
Company.
WALLACE, J.
I. INTRODUCTION
Plaintiff Motors Liquidation Trust DIP Lenders Trust (“Motors”) sued
several excess carriers, seeking coverage for underlying asbestos claims brought
against General Motors (“GM”). OneBeacon Insurance Company (“OneBeacon”)
issued three excess policies from 1969 to 1972. Defendant Continental Casualty
Company (“Continental”) purportedly issued two excess policies from 1969 to
1971. The parties bring a series of motions seeking summary judgment on
Defendants’ liability, if any, and the proper framework under Which to evaluate
and allocate Motors’s claims.
First, OneBeacon argues its insurance policies Were excluded from the asset
transfer between GM and Motors during GM’s bankruptcy. Naturally, Motors says
that the policies Were properly transferred from GM, and that OneBeacon still
retains adopted responsibility under those policies.
Second, OneBeacon argues its insurance policies Were not triggered because
the liability policies that underlay them Were never triggered. Motors contends
these pre-1972 policies Were, in fact, triggered because they are occurrence-based
Third, OneBeacon argues the underlying policies’ Suit Limitations Clause
bars Motors’s claims because Motors filed suit years beyond the limitations period.
Fourth, the parties disagree on the definition of “occurrence” as it pertains to
policy coverage. Motors contends all of the remaining asbestos claims stem from
GM’s initial parts’ manufacture Conversely, OneBeacon says that each claim is
its own occurrence deriving from each claimant’s alleged exposure to GM’s parts.
Finally, the parties disagree on how to determine allocation. Motors
contends that any allocation must be done on an “'all sums” basis. OneBeacon says
allocation must be done on a “pro rata” basis.
Continental, if it must, joins all of OneBeacon’s summary judgment motions
except OneBeacon’s motion for summary judgment regarding transfer. The Court
puts it that way because Continental has posited that Motors has not provided
sufficient evidence to show Continental’s policies follow form to the underlying
Royal policies and therefore has failed to establish it has any liability here.
The Court’s introduction to and recitation of the factual and procedural
history of this litigation is set forth in the Court’s previous decisions.l The Court
will, therefore, not undertake a protracted recounting thereof, but only briefly set
forth that expressly necessary for this ruling.
l Motors Liquia'ation C0., Dip Lena'ers Trust v. Allicmz Ins. C0., et al., 2013 WL 7095859
(Del. Super. Ct. Dec. 31, 2013) (“Motors ]”); Motors Liquidalion Co. Dl'p Lenders Trust v.
Allianz Ins. Co., et al., 2015 WL 10376123 (Del. Super. Ct. Nov. 25, 2015), reargument denied,
2016 WL 825473 (Del. Super. Ct. Mar. 2, 2016) (“Motors I]”).
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II. FACTUAL AND PROCEDURAL BACKGROUND
A. GM’s INSURANCE TowERS
GM and Royal Insurance Company (“Royal”) had a longstanding insurance
relationship, beginning in approximately 1921 and continuing through September
1, 1993.2 On August 18, 1954, Royal issued RTP 060000 to GM, which was
effective “until canceled.”3 Section IV of RTP 060000, entitled “Policy Period,
Territory,” provided as follows:
This policy applies worldwide, only to occurrences
[defmed as: “an event, or continuous or repeated
exposure to conditions, which unexpectedly cause bodily
injury . . .”] during the policy period provided the
services, goods or products were manufactured, sold,
handled or distributed within the United States of
America, its territories, possessions, or Canada.4
1. OneBeacon’s Policies5
Between November 1, 1969, and March 21, 1972, OneBeacon issued three
excess insurance policies to GM (collectively, the “OneBeacon Policies”).6 The
2 Transmittal Aff. of Carrnella P. Keener in Connection with OneBeacon Insurance
Company’s Mot. for Summ. J. on Trigger, Ex. 4, at MLC DE 0004768~0004769 [hereinafter
“Keener Trigger Aff.”].
3 1a Ex. 6 (“RTP 060000”), ar MLC DE 0000007.
4 ld. ar MLC DE 0000004
5 OneBeacon is the Transferee of the Liabilities of American Employers Insurance
Company. See Pl. Motors Liquidation Co. DIP Lenders Trust’s Opp. to Def. OneBeacon
Insurance Company’s Mot. for Summ. J. on the Alleged Transfer of Rights Under the
OneBeacon Policies and Cross-Mot. for Summ. J. on the Transfer of Rights Under the
OneBeacon Policies at 3, n. 3 [hereinafter “Pl.’s Opp’n. & Cross-Mot. on Transfer.”]. For ease
of reference, the Court will simply use OneBeacon throughout
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OneBeacon Policies followed form to Royal Catastrophe Excess Policy RLA 35
(“RLA 35”).7 RLA 35, in turn, followed form to RTP 060000:
[T]his Insurance is subject to the same warranties, terms
and conditions (except as regards the premium, the
obligation to investigate and defend, the amount and
limits of liability and except as otherwise provided
herein) as are contained in or as may be added to the
Underlying Insurance prior to a happening for which
claim is made hereunder.8
RTP060000 defines “occurrence” as: “an event, or continuous or repeated
exposure to conditions, which unexpectedly cause bodily injury[.]”9
RLA35 states that the insurance company covers all sums GM becomes
liable to pay arising out of continuous and repeated exposure to conditions, if that
exposure results in bodily injury during the policy period, promising:
To pay on behalf of the Insured all sums which the
Insured shall be obligated to pay by reason of the liability
(i) imposed upon the Insured by law arising out of an
event or a continuous or repeated exposure to conditions
which result in Personal lnjury or Property Damage as
defined in the Underlying Insurance.
. which occurs during the period of this Insurance,
provided that in respect of this Section this Insurance is
6 Keener Trigger Aff. Ex. 1.
7 Id. Ex. 1, at MLC DE 0000243, MLC DE 0000280, and MLC DE 0000334.
8 Ia’. Ex. 7, at MLC DE 0000198.
9 See Affidavit of Christina E. Buschmann in Supp. of. Pl.’s Two Renewed Mots. For
Summ. J. Ex. 3 (RTP 060000), at MLC DE 0000003-MLC DE 0000005.
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subject to the same warranties, terms and conditions
(except as regards the premium, the obligation to
investigate and defend, the amount and limits of liability
and except as otherwise provided herein) as are contained
in or as may be added to the Underlying Insurance prior
to a happening for which claim is made hereunder.'°
2. Continental’s Policies
Continental purportedly issued two excess policies to GM.ll These two
policies covered GM from March 21, 1969, to March 21, 1970 and from March 21,
1970, to March 21, 1971.12 The policies had $l million limits in excess of $50
million.13 Like OneBeacon’s, Motors contends Continental’s policies follow
follows form to RLA 35, albeit through Home Insurance Company’s Policy #l-[EC
97915 82.'4
Continental argues Motors’s only evidence is two documents: a declarations
page showing Continental provided coverage in excess of the Home Insurance
policy for the 1969-70 policy year, and the Home Insurance policy itself.15 The
parties’ discovery regarding missing or lost policies is now complete. But the
10 See id. Ex. 2, Royal Indemnity Co. Policy No. RLA35, at MLCDE0000197-l98.
ll See, e.g., Def. Continental Casualty Company’s Brief in Supp. of its Mot. for Summary J.
and Joinder in OneBeacon Ins. Co.’s Mot. for Summary J. on the Suit Limitation Clause at 2.
12 Id
13 Id'
14 ld. 313-4.
‘5 ld. at2_3.
parties have agreed that they “will not be filing summary judgment motions on the
existence or completeness of the Continental policies at this time.”'6
B. GM-RoYAL MICHIGAN LITIGATIoN
On January 26, 2005, GM sued Royal, its longstanding primary, umbrella,
and first-layer excess insurer, for Asbestos Claims coverage.'7 That lawsuit
resolved in 2008, with Royal releasing hundreds of millions dollars to settle
underlying lawsuits.
C. GM’s BANKRUPTCY AND REoRGANIZATIoN
GM went belly up in 2009. GM voluntarily filed for Chapter 11 bankruptcy
protection in the United States Bankruptcy Court for the Southern District of New
York in June of that year.18 As part of its reorganization, GM sold its core assets to
NGl\/ICO, Inc., and was renamed Motors Liquidation Company (“MLC”).19 GM
retained all pre-1986 excess liability insurance policies.20
'6 Letter of Carmella P. Keener to the Honorable Paul R. Wallace on behalf of Continental
and Plaintiff regarding status of issues relating to the existence or completeness of Continental
policies, dated May 25, 2017 (D.I. 1110).
17 Gen. Motors Corp. v. Royal & sun Alliance Ins. Grp. PLC, er al., 2007 WL 1206830
(Mich. Ct. App. Apr. 24, 2007). See also Transmittal Affldavit of Carmella P. Keener in
Connection with OneBeacon Ins. Co.’s Mot. for Summ. J. on the Suit Limitation Clause Ex. 6
[hereinafter “Keener Suit Limitation Aff.”].
18 Transmittal Affidavit of Carrnella P. Keener in Connection with OneBeacon Insurance
Company’s Mot. for Summ. J. on the Alleged Transfer of Rights Under the OneBeacon Policies
Ex. 4 [hereinafter “Keener Transfer Aff.”].
19 Pl.’s Opp’n. & Cross-Mot. on Transfer at 4.
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On March 29, 2011, the Bankruptcy Court issued an order (the “Bankruptcy
Order”) approving l\/lLC’s Second Amended Joint Chapter ll Plan (the “Chapter
11 Plan”). The Bankruptcy Order and the Chapter 11 Plan were to distribute
MLC’s remaining assets. The Bankruptcy Order stated: “[a]ll of the parties’ rights
and arguments with respect to their rights and duties under any Insurance Policies
(as hereinafter defined) are expressly preserved and are not impaired, increased, or
otherwise altered by this Confirmation Order, the [Chapter ll] Plan, and the
exhibits thereto.”Zl “Insurance Policies” means insurance policies issued to the
Debtors with inception dates prior to 1986 that are included in the Asbestos
Insurance Assets.”22 The Chapter 11 Plan defined “Asbestos Insurance Assets” as:
All rights arising under liability insurance policies issued
to the Debtors with inception dates prior to 1986 with
respect to liability for Asbestos Claims, including, but
not limited to: (i) rights (a) under insurance policies,
(b) under settlement agreements made with respect to
such insurance policies, (c) against the estates of
insolvent insurers that issued such policies or entered into
such settlements, and (d) against state insurance guaranty
associations arising out of any such insurance policies
issued by insolvent insurers, and (ii) the right, on behalf
of MLC and. its subsidiaries as of the Effective Date, to
give a full release of the insurance rights of MLC and its
subsidiaries as of the Effective Date under any such
20 Aff. of Michael T. Sharkey in Support of the Trust’s Opp. to Defs.’s Mots. Ex. 12. 11 5.
[hereinafter “Sharkey Aff.”].
21 Keener Transfer Aff. Ex. 3 (order) 11 63(3),
22 Id. 11 63(g).
policy or settlement agreement with the exception of
rights to coverage with respect to workers' compensation
claims.23
On December 15, 2011, MLC formed the Motors Liquidation Company DIP
Lenders Trust (again, “Motors.”) through a Trust Agreement (the “Trust
Agreement”). Motors was established to:
(i) avoid abandonment of certain assets of [MLC] and
facilitate the recovery of certain causes of actions that
will not be able to be monetized before l\/ILC[’s]
dissolution as required by the [Chapter 11] Plan; and (ii)
to hold and administer the assets and any corresponding
liabilities of the Trust listed on Schedule A, Schedule B
and Schedule C attached hereto (the “Trust Assets”) for
the benefit of the DIP Lenders under the DIP Credit
Agreement and to distribute the Trust Assets to the DIP
Lenders in accordance with the terms of this
Agreement.24
Schedule B states that Motors has “[t]he right to prosecute, and receive the
benefit of, all claims that [Motors] has or may have relating to the pre-1986
insurance policies that are identified on Exhibit A hereto for which Perkins Coie
LLP has been retained on a contingency basis.”25
23 Id. Ex. 3 (Chapter 11 Pian), at § 1.7.
24 See ia'. Ex. 13 (Trust Agmt., Background, 11 C).
25 Ia'. Schedule B, 11 l.
Exhibit A is a seven-page long document detailing carrier names, policy
start and end dates, policy numbers, and limits.26 OneBeacon is not listed
anywhere on Exhibit A.27 But the Trust Agreement gave Motors authority to
“[a]mend or supplement this Trust Agreement without notice to or consent of the
Bankruptcy Court or any DIP Lender for the purpose of . . . curing any ambiguity,
omission, inconsistency or correcting or supplementing any defective provision.”28
Motors and GM simultaneously executed an Assignment and Assumption
Agreement (the “Assignment Agreement”).29 There, GM transferred its “right,
title and interest in and to the assets (including claims against third parties) set
forth and described on Schedule A hereto[.]”30
Schedule A to the Assignment Agreement states that Motors has “the right
to prosecute, and receive the benefit of, all claims that [Motors] has or may have
relating to the pre-1986 insurance policies that are identified on Exhibit A hereto
for which Perkins Coie LLP has been retained on a contingency basis.”3'
26 See id. Ex. 13 (Trust Agmt.), Exhibit A.
27 See id.
28
Ia'. § 11.13(a)(x).
29 See ia'. Ex. 15 (Assignment Agmt.).
30 Ia'. at § l.1(b). (emphasis in original).
31 Id. at Schedule A, 11 1. Schedule A of the Assignment Agreement and Schedule B of the
Trust Agreement state the same thing.
However, there is no Exhibit A to the Assignment Agreement. lnstead, there is a
one-page document entitled “Annex A.” Annex A simply says “Pre-1986
Insurance Policies[.]”32
Motors filed its initial suit on December 1, 2011. On January 31, 2012,
Motors amended its complaint to include OneBeacon. On February 29, 2012,
using its authority to cure any ambiguity, Motors amended Section B of the Trust
Agreement to include language capturing OneBeacon.33 Specifically, the
amendment stated:
The right to prosecute, and receive the benefit of, all
claims that [Motors] has or may have relating to all
excess liability insurance policies incepting before 1986
including, without limitation, the pre-1986 insurance
policies that are identified on Exhibit A hereto for which
Perkins Coie LLP has been retained on a contingency
basis.34
III. STANDARD OF REVIEW
This Court cannot grant either party’s motion for summary judgment under
Delaware Superior Court Civil Rule 56 “unless no genuine issue of material fact
32 Keener Transfer Aff. Ex. 15 (Assignment Agmt., Annex A).
33 Ia'. Ex. 16 (Feb. 29, 2012, Trust Amendment Letter from AP Services, LLC, Motors’s
Trustee).
34 Id
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exists and one of the parties is entitled to judgment as a matter of law.”35
Summary judgment will not be granted if there is a material fact in dispute or if “it
seems desirable to inquire thoroughly into [the facts] to clarify the application of
the law to the circumstances.”36 The moving party has the burden of showing that
there is no genuine issue of material fact.37 If that burden is met, the non-moving
party must demonstrate that “there is a genuine issue for trial.”38 And in
determining whether there is, the Court must view the facts in the light most
favorable to the non-moving party.39
Where cross-motions for summary judgment are filed and neither party
argues the existence of a genuine issue of material fact, “the Court shall deem the
motions to be the equivalent of a stipulation for decision on the merits based on the
”40
record submitted with the motions. But where cross-motions for summary
35 Del. Super. Ct. Civ. R. 56; Emmons v. Hartford Underwriters Ins. Co., 697 A.2d 742,
745 (Del. 1997) (citing Playtex FP, Inc. v. Columbia Cas. Co., 622 A.2d 1074, 1076 (Del. Super.
Ct. 1992)).
36 Ebersoze v. Lowengrub, 180 A.2d 467, 468-69 (Dei. 1962).
31 Moore v. sizemore, 405 A.2d 679, 680 (Dei. 1979).
38 Del. Super. Ct. Civ. R. 56(e); see also Tanzer v. Int’l Gen. Indus., Inc., 402 A.2d 382, 385
(Del. Ch. 1979) (“If the movant puts in the record facts which, if undenied, entitle him to
summary judgment, the burden shifts to the defending party to dispute the facts by affidavit or
proof of similar weight.”).
39 Tanzer, 402 A.2d at 385 (citing Judah v. Del. mm Co., 387 A.2d 624, 632 (Dei. super.
ct 1977)).
311 Dei. super. Ct. Civ. R. 56(h).
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judgment are filed and an issue of material fact exists, summary judgment is not
appropriate41 In its evaluation of whether there is a genuine issue of material fact,
the Court should evaluate each motion independently.42 Where it seems prudent to
make a more thorough inquiry into the facts, summary judgment is inappropriate43
IV. DISCUSSION
A. TRANSFER oF RIGHTS
OneBeacon filed a motion for summary judgment alleging that Motors
Liquidation Company (again, “MLC”) did not transfer its rights under the
OneBeacon insurance policies to Motors Liquidation Company DIP Lenders Trust
(again, the Trust is referred to herein as “Motors”). Motors contends that it was
“assigned the rights to prosecute, and receive the benefit of, whatever rights
[MLC] had against OneBeacon” as of December 15, 2011.44 The Court finds that
the rights under the OneBeacon policies were property assigned to Motors. The
Court GRANTS Plaintiff Motors Liquidation Company DIP Lender’s Trust’s
41 cramer sys., ma s’holders’Agem v, MlVA, Inc., 980 A.2d 1024, 1029 (Dei. Ch. 2008).
43 Fasciana v. Elec. para sys. Corp., 829 A.2d 160, 167 (Dei. Ch. 2003).
43 Paihmark swres, Inc. v. 3821 Associazes, L.P., 663 A.2d 1189, 1191 (Dei. Ch. 1995)
(“[S]ummary judgment may not be granted when the record indicates a material fact is in dispute
or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application
of law to the circumstances.”).
44 Pl.’s Opp’n. to Def.’s Mot. for Summ. J. on Transfer of Rights & Cross-Mot. for Summ.
J. on Transfer of Rights, at 1 [hereinafter “Pl.’s Opp. & Cross-Mot. on Transfer.”].
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Cross-Motion for Summary Judgment on Transfer of Rights, and DENIES
Defendant OneBeacon’s Motion for Summary Judgment on Transfer of Rights
1. The GM Bankruptcy
On June l, 2009, GM filed for Chapter 11 bankruptcy in the Southern
District of New York.45 As a part of this Chapter 11, GM sold its assets to New
GM, which was renamed Motors Liquidation Company (again, “l\/ILC”).46 All pre-
1986 insurance policies were not included in this initial transfer to MLC and
remained held by GM.47 On March 29, 2011, the bankruptcy court approved
MLC’s amended Chapter 11 Plan. This amended Plan required that MLC’s rights
under any pre-1986 insurance policies also be transferred to Motors.48 OneBeacon
was not excluded from this transfer.
2. MLC Creates the Motors Trust and Transfers All Assets to It.
On December 15, 2011, MLC formed Motors to avoid abandonment of
assets held by MLC and to hold and administer the assets in a manner to benefit
43 161 314.
46 Id
47 Id. at 5; Sharkey Aff. Ex. 12 (Stip. of Settlement Re: Master Sale & Purchase Agmt. 1[ 5).
48 Pl.’s Opp. & Cross-Mot. on Transfer at 5. The Order confirming the amended Chapter
11 Plan defined these insurance policies as “insurance policies issued to the Debtors with
inception dates prior to 1986 that are included in the Asbestos Insurance Assets.” Keener
Transfer Aff. Ex. 3 (Order 11 63(g)). Asbestos insurance claims means “all rights arising under
liability insurance policies issued to the Debtors with inception dates prior to 1986 with respect
to liability for Asbestos Claims . . . .” Id. Ex. 3 (Chapter 11 Plan § 1.7).
_13_
the DIP Lenders via the Trust Agreement.49 The Trust Agreement stated
“[e]ffective upon the Transfer Date, [MLC] hereby transfers to the Trust, in
furtherance of the [amended Chapter 11 Plan], the Trust Assets free and
clear . . . .”50 The Trust Agreement defines Trust Assets as “the assets and any
corresponding liabilities of the Trust listed on Schedule A, Schedule B, and
Schedule C attached hereto.”51 Schedule B listed “[t]he right to prosecute, and
receive the benefit of, all claims that [MLC] has or may have relating to the pre-
1986 insurance policies that are identified on Exhibit A hereto. . . .”52 Exhibit A
did not include the OneBeacon policies. But the Trust was additionally authorized
to hold “all other property held from time to time.”53 And the Trust Administrator
could “amend or supplement [the] Trust Agreement . . . for the purpose of . . .
curing any ambiguity, omission, inconsistency or correcting or supplementing any
defective provision. . . .”54
49 Pl.’s Opp. & Cross-Mot. on Transfer at 7.
50 Keener Transfer Aff. Ex. 13 (Trust Agmt. § 2.3).
31 1a Ex. 13 (Trust Agmt. § 1.1(gg) & Background 11 C).
33 1a Ex. 13 (Trust Agmt. Ex. A).
33 1a Ex. 13 (Trust Agmt. § 2.3).
34 1a Ex. 13 must Agmt. § 11.13(3)(><)).
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After MLC created Motors, it executed the separate Assignment Agreement
to transfer and assign assets to Motors. ln that document, MLC “absolutely and
unconditionally transfer[red], assign[ed], and deliver[ed] unto [Motors] all of
[MLC’s] rights, title, and interest in and to . . . the assets (including claims against
third parties) set forth and described on Schedule A hereto.”55 Schedule A lists
“[t]he right to prosecute, and receive the benefit of, all claims that [MLC] has or
may have relating to the pre-1986 insurance policies that are identified on Exhibit
A hereto . . . .”56 While there is no Exhibit A, there is an Annex A. Annex A lists
“Pre-1986 Insurance Policies.”57 OneBeacon policies are not carved out.
On February 29, 2012, the Trust Administrator effectively amended Exhibit
B of the Trust Agreement to read “[t]he right to prosecute and receive the benefit
of, all claims that [MLC] has or may have relating to all excess liability insurance
policies incepting before 1986 including, without limitation, the pre-1986
insurance policies that are identified on Exhibit A hereto . . . .”58 It is undisputed
that OneBeacon is a pre-1986 insurance policy.
55 Id. Ex. 15 (Assignment § 1.1(b)). That document further stated that the Trust “hereby
accepts such transfer, assignment, and delivery of the Assigned Assets . . . .” Ia'. at § 1.2.
33 1a Ex. 15 (scheduie A, mem 1).
31 Id. Ex. 15 (Annex A).
58 Ia'. Ex. 16 (Feb. 29, 2012, Trust Amendment Letter from AP Services, LLC, Motors’s
Trustee).
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3. The Plain Language of the Assignment Agreement Shows MLC
Successfully Transferred All Rights Under the Pre-1986 Insurance
Policies to Motors, Including the OneBeacon Policies.
OneBeacon contends that the omission of its name from the schedule of
insurance policies means that MLC excluded them from the transfer to Motors.
Not so. The Trust Agreement created Motors, but the actual transfer of assets to
Motors occurred via the Assignment Agreement.59 Exhibit A to (Schedule A of)
the Trust Assignment does not exist, but there is an Annex A that lists the
information purported to be in “Exhibit A.” Annex A lists “Pre-l986 Insurance
Policies” as assets to be transferred to Motors. “[T]he plain language of an
assignment determines its breadth and scope.”60 Here, the plain language of Annex
A transferred all “Pre-1986 Insurance Policies.” OneBeacon policies were in
effect from November l, 1969, to March 21, 1972_they are, therefore, pre-1986
policies.
59 Bank ofAm. Nat’l Trust & Sav. Ass’n v. Private T rust Corp., 1998 WL 230991, at *4
(S.D.N.Y. May 6, 1998) (“And because it is the Assignment Agreement through which the
parties effected the sale of the Obligation, and not the Trust Agreement, the former
agreement must relate to this action, whether or not the latter does as well.”). Section 2.2 of the
Assignment Agreement states “[T]his Agreement shall be construed and enforced in accordance
with, and the rights and obligations of the parties hereunder shall be governed by, the laws of the
State of New York, without giving effect to the principles of conflicts of law thereof.” See
Keener Transfer Aff. Ex. 15 (Assignment Agmt. § 2.2).
60 Najjar Grp., LLC v. W. 56th Holel LLC, 106 A.D.3d 640, 641 (N.Y. 2013) (intemal
citations omitted).
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“[A] written agreement that is complete, clear and unambiguous on its face
9961
must be enforced according to the plain meaning of its terms. “A contract is
unambiguous if the language it uses has ‘a definite and precise meaning,
unattended by danger of misconception in the purport of the [agreement] itself, and
concerning which there is no reasonable basis for a difference of opinion.”’62 The
clear, unambiguous language of the Assignment Agreement transfers all “Pre-1986
Insurance Policies” from MLC to Motors. No doubt, OneBeacon’s is a pre-1986
insurance policy. Accordingly, Motors assumed all rights to prosecute and receive
the benefits of the OneBeacon insurance policies.
4. Omission of OneBeacon from the Initial Trust Agreement Does Not
Preclude Transfer to Motors.
Neither Motors nor OneBeacon dispute that OneBeacon was not listed in l
Exhibit A (aka Annex A) of (Schedule A) of the initial Trust Agreement.63 But,
the Trust Administrator amended the Trust Agreement, as he was empowered to
do, by including “all excess liability insurance policies incepting before 1986
including, without limitation, the pre-1986 insurance policies that are identified on
61 Greenfl`ela’ v. Phillz`es Recora's, Inc., 780 N.E.2d 565, 569 (N.Y. Ct. App. 2002) (citations
omitted).
62 Ia'. at 569~70 (intemal citations omitted).
63 Pl.’s Opp. & Cross-Mot. on Transfer at 17.
_17_
Exhibit A hereto . . . .”64 OneBeacon was not initially on Exhibit A as MLC was
precluded from suing OneBeacon pursuant to a Standstill Agreement. Exhibit A of
the original complaint in this action became the basis for Exhibit A of the Trust
Agreement. When that Standstill Agreement expired on January 17, 2012, Motors
added OneBeacon to the Complaint. Upon realizing the unintentional omission,
the Trust Administrator amended the Trust Agreement so as to include the
OneBeacon policies.
OneBeacon claims that the Motors’s initial omission of OneBeacon serves
as an intentional waiver of its rights. lt was not. Intent to abandon rights must be
clear.65 There is no evidence that MLC expressly chose to abandon its rights under
the OneBeacon policies while it clearly sought to exercise its rights under all
others. Further, the rights under the OneBeacon policies had already been
transferred to Motors via the valid Assignment Agreement. The amendment by the
Trust Administrator only served to “[cure] any ambiguity, omission, [or]
inconsistency” 66 in the Trust Agreement.
As such, MLC did validly and completely transfer all of its rights under the
OneBeacon policies to Motors. Plaintiff Motors Liquidation Company DIP
64 See Keener Transfer Aff. Ex. 16 (Feb. 29, 2012, Trust Amendment Letter from AP
Services, LLC, Motors’s Trustee); see also ia’. Ex. 13 (Trust Agmt. § 11.13(a)(x)).
33 See 1a re sire Plan, 100 B.R. 690, 693 (Bani
M/
Paul R. Wallace, Judge
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