Giuliano v. Ins. Co. of Pa. (In re LTC Holdings, Inc.)

596 B.R. 797
United States Bankruptcy Court, D. Delaware·Decided February 4, 2019·No. Case No.: 14-11111 (CSS) (Jointly Administered); Adv. No.: 15-51889 (CSS); Adv. No.: 16-51036 (CSS); consolidated with Adv. No. 15-51889·Published·Cited by 4 cases

Opinion

Sontchi, C.J.

INTRODUCTION

Fed. R. Civ. P. 56(c)(4) sets out three elements that such a declaration must meet in order to be admissible. It "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." The Court here addresses a Motion to Strike alleging that a declaration and its exhibits fail to meet these standards. A 2010 overhaul of this Rule removed, among others, the requirement that such submissions actually meet authentication requirements at the summary judgment stage and relieved the judicial system and litigants of the time and expense of authenticating every document at this point. After this streamlining, an unauthenticated submission became grounds for objection, requiring the proponent to show that the document is admissible or will be at trial. A declarant need not be the person who authenticates his own exhibits for them to be admissible. Any knowledgeable witness will do. Because most of the documents at issue have been or can be authenticated, the Court denies the bulk of the motion.

JURISDICTION & VENUE

This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334. Venue is proper in this district pursuant to 28 U.S.C. §§ 1408 and 1409. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2).

PROCEDURAL HISTORY

Debtor Lakeshore Toltest Company ("LTC") is a construction company and *800parent of construction companies Toltest, Inc. ("Toltest") and Lakeshore Engineering Services ("LES"), collectively "Debtors."1 The United States had retained Debtors to perform several construction projects, including structures in the Middle East for the Department of Defense.

On May 2, 2014 ("Petition Date"), Debtors filed a voluntary Chapter 7 petition. Two and half years later, the Trustee filed a complaint against the Insurance Company of the State of Pennsylvania ("ICSP"), a surety for several Debtor Government contracts.2 The complaint alleges, among other things, that ICSP forced Debtors to enter into an unfavorable financing arrangement while they were struggling financially. At the end of 2017, ICSP made two motions for summary judgment, one of which is at issue here. On the same day, it moved for summary judgment on the first five counts of the complaint and separately on the ownership of Debtors' escrowed tax refund - to which Debtors had given up claim in a court-approved settlement with the United States. In support of this motion, ICSP submitted the declaration (and attached exhibits) of AIG employee Douglas Fine. The next day, BMO Harris Bank N.A. ("BMO") - Debtors' first lien creditor3 - fired back with its own Motion for Summary Judgment on the tax refund. On February 26, 2018, BMO filed a Motion to Strike the declaration. This opinion addresses this Motion to Strike.

FACTUAL BACKGROUND

The United States hired LTC to build the National Police Command Center in Afghanistan ("NPCC") and the Al Dhafra air base in United Arab Emirates ("Al Dhafra"). ICSP, an AIG affiliate, was retained as surety.4 The United States deemed ICSP in default on some of its contracts.5 Though LTC protested, it was unable to finish the NPCC. ICSP had to step in to assure completion. Soon thereafter, on May 2, 2014, Debtors filed for bankruptcy. Later that summer, ICSP, the United States, and a contractor called Macro Vantage Levant JLT ("Macro Vantage") entered into an agreement ("NPCC Agreement") whereby Macro Vantage would finish the NPCC. Macro Vantage completed the project, and the United States released ICSP from further suretyship obligations under the NPCC Agreement.6 In the meantime, in June 2016, this Court approved a settlement and stipulation (collectively "Settlement") where Debtors gave up their contract claims against the United States in exchange for the United States waiving its setoff rights against their tax refund.7

Over the course of almost two years - from October 2014 to September 2016 - ICSP spent about $ 12 million on the NPCC.8 And it wants some of its money back.

In early 2014, Trustee filed a consolidated *801federal tax return for 2013.9 The return showed net operating losses of about $ 28 million for the year.10 LTC sought to carryback this loss and attain a refund of approximately $ 5.5 million ("Tax Refund") in federal income taxes paid in 2011.11 The United States refused to release the Tax Refund and asserted setoff rights for the contracts on which it claimed Debtors defaulted.

The United States and Trustee negotiated a settlement and stipulation where Debtors gave up their contract claims against the United States in exchange for the United States waiving its setoff rights against their tax refund. This court approved the Settlement and it became effective June 29, 2016. Per the Settlement, the Trustee is holding the Tax Refund is escrow. A dispute between BMO - and ICSP over the Tax Refund has spawned the instant motion.

ICSP argues that, as the United States' subrogee, it is owed the Tax Refund. BMO responds that ICSP's rights were not yet subrogated at the time of the Settlement, so the United States' release of its rights also extinguished ICSP's rights. In any event, BMO continues, the United States had superior rights in the Tax Refund because it had its own claims against Debtors to offset. Hence, ICSP would never have been entitled to the Tax Refund. ICSP and BMO moved for summary judgment on their competing claims.

To support its summary judgment motion, ICSP relies upon a declaration - with 29 attached exhibits and sub-exhibits - from Douglas Fine. Fine is a Complex Claims Director for ICSP's parent AIG.

BMO moves to strike Fine's declaration and its exhibits for failing to meet any the requirements in Fed. R. Civ. P. 56(c).

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Giuliano v. Ins. Co. of Pa. (In re LTC Holdings, Inc.), 596 B.R. 797 (Del. 2019).

596 B.R. 797 (Giuliano v. Ins. Co. of Pa. (In re LTC Holdings, Inc.)) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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