      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                    IN AND FOR NEW CASTLE COUNTY


MINE SAFETY APPLIANCES                    )
COMPANY,                                  )
                                          )
            Plaintiff,                    )
                                          )
       v.                                 ) C.A. No. N10C-07-241 MMJ
                                          )
AIU INSURANCE COMPANY, et al.,            )
         Defendants.                      )
                                          )


                           Submitted: April 9, 2015
                            Decided: June 15, 2015

      Upon Plaintiff Mine Safety Appliances Company’s Exceptions to the
          March 21, 2015 Opinion of the Special Discovery Master
                                  DENIED


                                   ORDER

JOHNSTON, J.

      1.    On July 11, 2014, Defendant The North River Insurance Company

(“North River”) filed a Motion to Compel Answers and/or to Determine

Sufficiency of Objections and Responses to Requests for Admissions and an

Interrogatory Related Thereto (“RFA Motion”) directed to Plaintiff Mine Safety

Appliances Company (“MSA”). Following full briefing, the Special Discovery

Master (“Special Master”) held oral argument on September 5, 2014.
      2.      During the September 5, 2014 oral argument, the parties stated that

they would engage in meet and confer discussions to attempt to resolve the RFA

Motion.

      3.      On February 23, 2015, North River filed a Supplemental Brief in

Support of its RFA Motion, stating that the meet and confer discussions were

unsuccessful and a ruling is needed.

      4.      In letters dated February 25, 2015, and March 2, 2015, MSA informed

the Court of its intention to file a Motion for Partial Summary Judgment addressing

North River’s Known Loss, Known Risk, Public Policy, Unclean Hands, and

Misrepresentation defenses (“Five Additional Defenses”). MSA stated that the

Five Additional Defenses are the functional equivalent of the expected or intended

provision in the North River policies. Therefore, MSA argued that the Court’s

March 24, 2014 Expected/Intended Opinion renders a great majority of the RFAs

irrelevant.   MSA requested that a ruling on North River’s RFA Motion be

postponed until after the Motion for Partial Summary Judgment is decided.

      5.      On March 21, 2015, the Special Master issued a ruling (“March 21,

2015 Ruling”) declining MSA’s request to postpone the ruling and granting North

River’s RFA Motion.




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         6.     On March 27, 2015, MSA filed Exceptions to the March 21, 2015

Ruling. In its Exceptions, MSA requests that the Court stay the March 21, 2015

Ruling until the Court decides MSA’s Motion for Partial Summary Judgment.

         7.     In response, North River argues that the Court should enforce the

March 21, 2015 Ruling, compelling MSA to answer the RFA Motion, and deny

MSA’s Exceptions.

         8.     The Order of Reference to Special Master, dated December 5, 2012,

establishes the Court’s proceedings when a party files an exception to a decision of

the Special Master during the Course of this litigation. The Court reviews de novo

the Special Master’s Ruling.1

         9.     As to MSA’s Exceptions, MSA states that it is not requesting that the

Court overturn the March 21, 2015 Ruling. Rather, MSA asks the Court to stay

enforcement of the Ruling until after it decides MSA’s Motion for Partial

Summary Judgment concerning North River’s Five Additional Defenses. MSA

contends that if the Motion is granted, the March 21, 2015 Ruling should be

overturned. Conversely, if the Motion is denied, MSA will comply with the March

21, 2015 Ruling and will answer the discovery.

         10.    MSA argues that by granting North River’s RFA Motion prior to the

Five Additional Defenses being ruled on by the Court, the Special Master has


1
    Trans. ID 48202156.
                                           3
burdened MSA with responding to discovery that may be irrelevant if the Motion

for Partial Summary Judgment on the Five Additional Defenses is granted. MSA

suggests that the parties set a new briefing schedule so that the Motion for Partial

Summary Judgment may be heard and a decision rendered before June 29, 2015,

the previously-scheduled date for oral argument for Phase I Motions. MSA argues

that setting an expedited schedule will alleviate concerns regarding delay in

resolving the discovery issues.

          11.    The Court disagrees with MSA’s contentions and finds that the March

21, 2015 Ruling was correct in denying the request for postponement and ordering

MSA to answer North River’s discovery requests.           Superior Court Civil Rule

26(b) states in pertinent part: “Parties may obtain discovery regarding any matter,

not privileged, which is relevant to the subject matter involved in the pending

action, whether it relates to the claim or defense of the party seeking discovery or

to the claim or defense of any other party . . . .” 2 The Special Master stated in the

March 21, 2015 Ruling that MSA has failed to show that the Five Additional

Defenses are the functional equivalent of the expected or intended provision in the

North River policies. Rather, the Five Additional Defenses are distinguishable

from the expected or intended provision and are based on different factual, legal,




2
    Super. Ct. Civ. R. 26(b)(1).
                                           4
and policy grounds. Accordingly, North River is permitted to seek discovery on

those issues.

      12.       The Court also agrees with the Special Master that considerations of

timing and efficiency weigh against staying the March 21, 2015 Ruling. MSA

argues that it will be more efficient to rule on the Motion for Partial Summary

Judgment before enforcing the March 21, 2015 Ruling because if the Motion is

granted, a large number of RFAs will be irrelevant. However, if the Motion is

denied, MSA will be even further delayed in providing North River with discovery

responses. Further, if the Court stays the March 21, 2015 Ruling, North River may

be denied the opportunity to collect discovery that may refute MSA’s contention

that the Five Additional Defenses are the functional equivalents of the expected or

intended provision.

      13.       The Court finds that the Special Master carefully considered all issues

raised by the parties. The March 21, 2015 Ruling is consistent with applicable

legal precedent, the Delaware Superior Court Civil Rules, and the Court’s prior

rulings in this case. The Court is not persuaded by any exceptions to the ruling.

Upon de novo review, the Court finds the Special Master’s ruling–granting North

River’s Motion to Compel Answers to Requests for Admissions–to be well

reasoned.




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     THEREFORE, the Special Discovery Master’s March 21, 2015 Ruling is

hereby APPROVED. All exceptions are hereby DENIED.

          IT IS SO ORDERED.



                                         /s/ Mary M. Johnston__________
                                          The Honorable Mary M. Johnston




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