Pages: 128
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, SS.
DEPARTMENT
SUPERIOR COURT
OF THE TRIAL COURT
* * * * * * * * * * * * * * * * * * *
CELANESE INTERNATIONAL CORPORATION,
PLAINTIFF,
v.
SUCV2006-1625-BLS2
COMMERCIAL UNION INSURANCE COMPANY,
formerly known as COMMERCIAL UNION
INSURANCE COMPANY, ET ALS.
DEFENDANTS.
* * * * * * * * * * * * * * * * * * *
TESTIMONY OF CRISTY BRESSON - VOLUME I
BEFORE THE HONORABLE STEPHEN NEEL
JURY TRIAL - DAY 5
Boston, Massachusetts
Room 1017
January 16, 2009
Paula Pietrella
Official Court Reporter
3
APPEARANCES:
For the Plaintiff:
MORGAN, LEWIS & BOCKIUS, LLP
125 High Street
14th Floor
Boston, MA 02110
By: Michael Miguel, Esq.
Jeffrey W. Moss, Esq.
Leah M. Houghton, Esq.
For the Defendants:
HERMES, NETBURN, O'CONNOR, SPEARING
265 Franklin Street
Boston, MA 02110
By: Kevin John O'Connor, Esq.
Adam Combies, Esq.
4
5
I N D E X
WITNESS
DIRECT
CROSS
REDIRECT
RECROSS
CRISTY BRESSON
(By Mr. Moss)
(By Mr. O'Connor)
4
103
E X H I B I T S
NO.
DESCRIPTION
PAGE
205
Email 1/12/04 to Ms. Bresson from
Mr. Poling
103
211
Email chain 10/12/04-10/15/04 among
Ms. Bresson, Mr. Peters and Ms. Hurt
103
340
Billing exemplar
115
339
Billing exemplar for photoresist claims
122
6
1
7
P R O C E E D I N G S
1
2 (Jury present.)
MR. MOSS:
3
The plaintiffs call Cristy Bresson as
4 its next witness.
THE COURT OFFICER:
5
Stand here and face the
6 court officer and raise your right hand.
7
CRISTY BRESSON, Sworn
8
DIRECT EXAMINATION
9 BY MR. MOSS:
10 Q
Please state your name for the record.
11 A
Cristy Lynn Bresson.
12 Q
And where do you live, Ms. Bresson?
13 A
46 Knox Road, Bow, New Hampshire.
14 Q
Are you employed?
15 A
Yes, I am.
16 Q
And who are you employed by?
17 A
I'm employed by the Fireman's Fund Insurance Company.
18 Q
How long have you been employed by the Fireman's
19 Fund?
20 A
Since September of 2007.
21 Q
And before joining Fireman's Fund, who did you work
8
1 for?
2 A
I worked for Resolute Management.
3 Q
Is that Resolute Management, Inc. New England
4 Division?
5 A
Yes, it is.
6 Q
How long did you work for Resolute Management?
7 A
I believe approximately three years or so.
8 Q
Do you recall the approximate start date of your
9 employment with Resolute?
10 A
Yes.
It approximately December of 2003.
11 Q
Have you ever been employed by OneBeacon Insurance
12 Company?
13 A
No.
14 Q
Have you ever been employed by Commercial Union
15 Insurance Company?
16 A
No.
17 Q
What position did you hold at Resolute Management?
18 A
I don't recall my specific title, but it was an
19 adjuster or account handler.
20 Q
And were you an account handler for the entire time
21 that you worked for Resolute?
9
1 A
Yes, I was.
2 Q
And that was approximately December 2003 to September
3 2007; is that correct?
4 A
Yes.
5 Q
And did you work full-time or part-time for Resolute?
6 A
I had a modified schedule.
7 schedule.
8 Q
It was a part-time
I worked thirty hours a week.
And was that what you averaged per week or was that a
9 set amount that you were required to work per week?
10 A
That was the minimum amount that I had to work in
11 order to retain benefits with the company.
On average I
12 worked significantly greater than thirty hours a week.
13 Q
Did you work from home or did you work from the
14 office location in Cambridge?
15 A
Three days a week I worked at the office in
16 Cambridge.
17 Q
And can you describe just briefly for the jury what
18 your responsibilities were as an account person for
19 Resolute?
20 A
I was responsible for managing and handling a number
21 of asbestos claims that had been assigned to me, reviewing
10
1 the claims to determine if there was coverage available
2 under the respective policies, making payments for defense
3 and indemnity under those policies and for those claims,
4 and evaluating those claims.
5 Q
And was the Celanese account one of the accounts that
6 was assigned to you on or shortly after you started
7 working for Resolute?
8 A
Yes, it was.
9 Q
And were your responsibilities with respect to the
10 Celanese account the responsibilities that you just
11 described for the jury a moment ago?
12 A
Yes.
My responsibilities on Celanese were no
13 different than any other account I had.
14 Q
So you were adjusting claims that Celanese was
15 asserting under policies issued to Commercial Union; is
16 that correct?
17 A
That's correct.
18 Q
And you're also managing claims asserted by Celanese
19 that were asserted under policies issued by Kemper
20 Insurance as well, correct?
21
MR. O'CONNOR:
Objection to the form.
11
1
THE COURT:
2
MR. MOSS:
Sustained.
I didn't hear the nature of the
3 objection.
THE COURT:
4
Form.
5 BY MR. MOSS:
6 Q
Were you also responsible for handling Celanese
7 claims for coverage under the Kemper policies?
8
MR. O'CONNOR:
9
THE COURT:
Objection to the form.
It is leading, but at this point
10 I'll allow it.
MR. MOSS:
11
Your Honor, we would move to have Ms.
12 Bresson treated as a 6-11 witness.
She is an employee of
13 Resolute Management and we should be permitted to lead
14 this witness.
THE COURT:
15
16 will arise again.
I overruled the objection, but it
Do you want to be heard on that.
MR. O'CONNOR:
17
We can wait and see if it arises
18 again.
19
THE COURT:
Sure.
Go ahead.
20 BY MR. MOSS:
21 Q
And as part of your responsibilities with respect to
12
1 the Celanese account, Ms. Bresson, were you responsible
2 for accepting tender of claims, whether they be asbestos
3 or chemical?
4 A
Yes, we did receive claims.
5 Q
And you were the person at Resolute that was
6 responsible for handling those claims?
7 A
Yes.
8 Q
And were you also responsible for reviewing and
9 approving bills that were submitted by Celanese for
10 payment either under the Commercial Union policies or the
11 Kemper policies?
12 A
Yes.
I was one of the individuals that reviewed the
13 bills and had responsibility for that process.
14 Q
And were you also the person at Resolute who was
15 responsible for responding to any inquiries that Celanese
16 may have regarding status of payment of those bills that
17 they had submitted to Resolute for payment?
18 A
Yes, I was one of those persons.
19 Q
And between December '04 and September '07, was there
20 anyone at Resolute who had that responsibility other than
21 yourself?
13
1 A
Certainly managers that I reported to would have
2 responsibility.
If I was not available or if I needed
3 assistance, they would be involved in the process.
4 Q
And was Robert Burns one of those individuals who may
5 have had responsibility on that account?
6 A
Robert Burns was the first manager I reported to,
7 yes.
8 Q
Are you familiar with a job description or title
9 called team leader?
10 A
The term generally, yes.
11 Q
And what did you understand that term to mean in the
12 context of your work at Resolute?
13 A
A team leader would be usually a senior person that
14 had been appointed to a management role, would have a
15 number of individuals reporting to him or her.
They would
16 oversee some of the accounts with those individuals.
17 They'd be a point person for the adjusters to go to with
18 questions and seek support and get additional assistance
19 with.
20 Q
And was Mr. Burns your team leader at Resolute?
21 A
He was my first team leader at Resolute.
14
1 Q
And how long did he remain your team leader?
2 A
I don't recall the exact period of time.
3 Q
At some point it changed?
4 A
At some point it was changed and I no longer reported
5 to Bob Burns.
6 Q
And do you recall when that was?
7 A
As I said, I don't recall the time.
8 Q
And who became your team leader after Mr. Burns?
9 A
I was then assigned with a gentleman, Bruce Perkins.
10 Q
And did Mr. Perkins remain your team leader the
11 remainder of your employment with Resolute or did it
12 change again?
13 A
No, he did not.
14 Q
Who became your team leader after Mr. Perkins?
15 A
I was assigned with Robert McCarthy.
16 Q
When you were assigned the Celanese account at some
17 point shortly after you started with Resolute, did you
18 gain an understanding that there were outstanding bills
19 that remained to be -- that were waiting to be paid by
20 Resolute?
21 A
Shortly after I had been assigned the account, I did
15
1 learn that there were outstanding balances.
2 Q
And do you recall what those balances were?
3 A
The total you're asking for?
4 Q
Yes, an estimate.
5 A
No, I don't recall.
6 Q
There's a witness notebook there.
Would you please
7 open that notebook to Exhibit No. 205.
8 A
What exhibit number?
9 Q
205.
And the exhibits are arranged in consecutive
10 order so it should be easy to find.
11 A
I see that.
12 Q
Ms. Bresson, directing your attention to an email
13 from Larry Poling to you, dated January 12, 2004, do you
14 see that?
15 A
I do see the email dated January 12, 2004.
16 Q
And do you recognize that email?
17 A
It appears to be an email that I had been involved
18 with, yes.
19 Q
You don't have any reason to believe that you didn't
20 receive this email, do you?
21 A
No.
16
1 Q
Do you know who Larry Poling is?
2 A
I don't know his title.
My recollection is Larry
3 Poling is one of the principals at Enviro-Tox.
I don't
4 know his title.
5 Q
And what is Enviro-Tox?
6 A
My understanding is Enviro-Tox was basically a third
7 party or a consultant that Celanese had hired to help them
8 with the administration of their claims.
9 Q
And based on this email, did you gain an
10 understanding that as of January 12, 2004, Celanese was
11 asserting that there was approximately $6 million that was
12 owed by Resolute?
13 A
Can I read the email?
14
MR. O'CONNOR:
15
THE COURT:
16
MR. O'CONNOR:
17
THE COURT:
Objection.
Excuse me.
What's your objection?
It mischaracterizes the email.
Do you want to focus on a particular
18 language.
19 BY MR. MOSS:
20 Q
Ms. Bresson, on January 12, 2004, were you informed
21 that there was approximately $6,080,000 outstanding on the
17
1 Celanese account?
2
MR. O'CONNOR:
3
THE COURT:
4
MR. O'CONNOR:
Objection, your Honor.
To what?
The question isn't specific as to
5 -- due from who?
6
7 A
THE COURT:
Overruled.
Can you repeat the question, please.
8 BY MR. MOSS:
9 Q
Based on your receipt of the January 12, 2004, email,
10 did you gain an understanding that there was approximately
11 $6,080,000 outstanding on the Celanese account?
12 A
The email reads, in part, "The balance owed to date
13 by Kemper and C.U. for both asbestos and chemical cases,
14 excluding the Photoresist chemical cases, the total owed
15 to date is 6,080,677.27."
16 Q
And were you also informed by way of this email that
17 the last payment for Kemper was a third quarter 2002?
18 A
This email states that, yes.
19 Q
And the last payment for Commercial Union was a
20 second quarter of 2002?
21 A
This email states that.
18
1 Q
And the email goes on to ask whether there are any
2 legitimate issues regarding the defense of these cases.
3 Do you see that?
4 A
Yes.
5 Q
And Mr. Poling asks if there's not, please send him a
6 check, correct?
7 A
Yes.
8 Q
What did you do upon receipt of this email to
9 investigate the status of the $6 million that Mr. Poling
10 was indicating was outstanding on this account?
11 A
Upon handling, taking over the handling of the
12 account, I spoke with individuals that had previously been
13 handling the account.
I looked at the file.
14 agreements that were in the file.
I looked at
And it became clear to
15 me that although there was an outstanding balance, the
16 information that had been requested by Resolute with
17 regard to supporting documentation and additional
18 information that they had been requesting had not been
19 provided.
So the payments that were outstanding were
20 noted by Celanese, but Celanese had not yet provided
21 information that Resolute had been asking for.
19
1 Q
What information are you referring to, Ms. Bresson?
2 A
Resolute had been asking for information with regard
3 to whether Celanese had to date paid any settlement,
4 aggregate information they might have paid with regard to
5 losses or settlements they had paid on their claims.
6 Q
And it's your testimony that, based upon your review
7 of the file, that information was not existent?
8 A
At various points throughout my tenure on the file,
9 they indicated they had not paid very many settlements.
10 They also at other times indicated that they had paid some
11 and provided a spreadsheet format identified, I think
12 about a million dollars' worth of settlements.
And at a
13 later point in time, they yet again changed what they had
14 provided and forwarded a spreadsheet that indicated it had
15 paid $3 million worth of settlements.
16
So the information that Resolute was receiving
17 on a regular basis from a sophisticated insured seemed to
18 be fluctuating at a great disparity.
19 Q
You didn't answer my question, Ms. Bresson, but thank
20 you for that long narrative.
21
My question was, when you reviewed the file in
20
1 January of '04, is it your testimony that there was no
2 indemnity information in there concerning the Celanese
3 account?
4 A
There was indemnity information in the file that
5 indicated in fact an indemnity payment had been made.
6 There was information that some indemnity had been paid,
7 but Resolute -- individuals prior to me -- I came on in
8 December and this is January, this is less than a month
9 after I took over the account -- had been asking for
10 additional information about settlements, what settlements
11 had been paid, how much had been paid.
That information
12 had not yet been available with additional documentation
13 that they had been asking for, including site information.
14 Q
So there was some indemnity information in the file
15 when you inherited it; is that correct?
16 A
There was limited indemnity information when I
17 inherited the file.
18 Q
Did you respond to Mr. Poling's email where he
19 invited you to ask him or Enviro-Tox that if there is an
20 issue, let him know?
21 A
I don't recall if I forwarded a specific email to
21
1 this January 12th email.
2 Q
Did you contact Enviro-Tox and ask him for that
3 information?
4 A
During this period of time that I handled the case, I
5 was in continuous contact with Celanese.
Larry, for a
6 short bit, as it seemed to change, and Joe Peters seemed
7 to be more involved.
Joe was my regular contact at
8 Enviro-Tox and on a regular basis we would speak.
I
9 communicated that Resolute needed information in regard to
10 indemnity information as well as billing information that
11 had not been provided, site information, exposure
12 information, et cetera.
13 Q
In the first month of your employment with Resolute
14 are you saying that you had also asked for site
15 information and exposure information?
Is that your
16 testimony?
17 A
I don't believe I just said that.
I believe what I
18 said that was during my tenure on the account, I asked for
19 at various times, with my numerous conversations with Joe
20 and sometimes with Larry and other folks at Celanese, I
21 asked for that information repeatedly, which was a
22
1 followup to what in part my predecessors had asked for
2 from those individuals that handled the account before me.
3 Q
Well, I'm focusing right now on the time you were
4 getting up to speed on the status of this account.
I'm
5 not asking for the entire history of the account.
Did you ask for exposure information within the
6
7 month of taking over the Celanese account?
8 A
I don't specifically recall what date I asked for it.
9 It's been eighteen months since I've been employed with
10 Resolute.
11 Q
And you don't recall when you asked for site
12 information either, correct?
13 A
A specific date with an email, no, I don't know.
14 Q
And would you expect to see those requests in an
15 email?
16 A
Not necessarily.
Certainly there would be some email
17 exchange on this account.
It was extremely phone
18 intensive with regular communications with myself and Joe
19 Peters and Donna Hurt.
20 Q
Was exposure information something that was important
21 for you to know?
23
1 A
Exposure information?
2 Q
Yes.
3 A
Yes, it was.
4 Q
You would expect them to probably see that in an
5 email.
If you were requesting a laundry list of
6 information, you would probably include exposure
7 information in your laundry list of requests, wouldn't
8 you?
9 A
I provided various emails, and I believe that our
10 requests were never all-inclusive.
And I stated that a
11 number of times, certainly in phone conversations as well.
12 It's pretty difficult in any given email to put every
13 single item that you're looking for.
The case is evolving
14 over a period of time, so oftentimes your request for
15 information is supplemented.
16 Q
So is it your testimony that as of January 12, 2004,
17 Enviro-Tox had not provided Resolute with any exposure
18 information?
19
MR. O'CONNOR:
20
THE COURT:
21 Q
MR. O'CONNOR:
Objection.
What's your objection?
It's leading.
It's contrary to
24
1 what she just said.
2
THE COURT:
Do you contest the proposing party
3 witness justification for leading?
4
MR. O'CONNOR:
I'm not conceding it, your Honor.
5 She's an employee of Fireman's Fund, not of Resolute or
6 OneBeacon.
7
THE COURT:
Let's talk.
8 SIDEBAR CONFERENCE:
9
THE COURT:
10 the former employee.
It's been a while since I looked at
You all referred to former
11 employees, but -- well, and the question is:
Do the
12 statements of a former employee made regarding what they
13 did within the scope of their authority while employed
14 qualify that witness as an adverse or hostile witness?
15
What's your position on that?
16
MR. O'CONNOR:
17 stake in this case.
That it doesn't.
She's got no
She's not employed by Resolute.
I
18 just don't think she qualifies as an adverse witness.
19
THE COURT:
Do you have any authority for that?
20
MR. O'CONNOR:
21
THE COURT:
I don't, your Honor.
Do you have any authority either
25
1 way?
2
MR. MOSS:
Not with me, your Honor.
But I will
3 say that Ms. Bresson has been represented by Mr. O'Connor
4 throughout this case after she left the employment.
5 weren't allowed to talk to her.
We
When we took her
6 deposition, Mr. O'Connor represented her.
She's an
7 adverse party.
8
MR. O'CONNOR:
Nobody asked me to talk to her.
9 I did represent her, if that's a determinative factor.
10 That's certainly not disputed.
11
I think it's fair that Mr. Moss at least make an
12 attempt to elicit his information with non-leading
13 questions and see if there's a problem if he's not getting
14 what appears to the court to be straight answers.
I think
15 that we should proceed that way.
16
MR. MOSS:
17
THE COURT:
I think she qualifies under 6-11.
I'm going to allow you to lead her.
18 END OF SIDEBAR CONFERENCE.
19 BY MR. MOSS:
20 Q
I don't remember if there was a question pending.
21 you recall --
Do
26
1 A
I have no idea what question is pending, sorry.
2 Q
Ms. Bresson, as of January 12, 2004, is it your
3 memory that there was no exposure-related information
4 contained in the Celanese file?
5 A
I don't recall at this time whether that information
6 was in the file of January 14th.
I know it had been
7 requested.
8 Q
And if that information wasn't in the file, that's
9 something that you would have followed up with Celanese or
10 with Enviro-Tox with, correct?
11 A
In fact we did, yes.
12 Q
Now, as of January 12, 2004, you were responsible for
13 addressing the outstanding bills on this account as well
14 as handling bills that came in on a going forward basis,
15 correct?
16 A
Correct.
17 Q
What did you with respect to addressing the
18 outstanding bills that you inherited when you took over
19 the account?
20 A
Let me just clarify.
There weren't technically --
21 there were bills, but there was no supporting
27
1 documentation attached to the bills.
And when I started
2 to evaluate the account and looked at what information had
3 been received to date, it became clear that there were no
4 invoices.
There wasn't a piece of paper attached to a
5 spreadsheet listing what law firm charged what charges for
6 a certain case and why it was totaling a certain amount of
7 dollars.
So we had asked for billing information.
8
The
9 file did not reflect that there was truly an invoice in
10 the file that were spreadsheets.
At this time I was reported to Bob Burns, and
11
12 there was a decision made by Bob Burns that we would do an
13 audit of the information that we had received to date.
14 Q
And that was an audit internally at Resolute,
15 correct?
16 A
It was an internal Resolute audit.
17 Q
Bob Burns put together a team of Resolute employees
18 and they went over all of the outstanding invoices that
19 you just described as spreadsheets; is that correct?
20 A
I don't know to what extent how many they looked at.
21 I was not a part of the audit.
And I put that in quotes,
28
1 "the audit."
It was really a review.
I was not part of
2 the review.
I purposely decided I did not want to be part of
3
4 the review because there were -- there was no invoice,
5 there was no bill from any law firm attached to the
6 spreadsheet.
There merely was an Excel spreadsheet with a
7 supporting supplemental report attached to the
8 spreadsheet, wherein the individuals that did the
9 review/audit cross-checked claimant names against one
10 spreadsheet versus the other and dollar amounts.
That was
11 not a substantive audit in my view.
12 Q
Were you involved in any part of the review of the
13 invoices that you had inherited when you took over the
14 account?
15 A
I reviewed spreadsheets.
When I took over the
16 account, I was not part of the Bob Burns review audit that
17 was conducted.
18 Q
So you didn't have any role in the actual approving
19 of those spreadsheets and the bills that the spreadsheets
20 represented; is that correct?
21 A
I wasn't part of the review audit when the decision
29
1 was made after the review audit to make payment.
I had to
2 create spreadsheets and do the normal bill payment process
3 and sign the cover sheet so that I was authorizing the
4 payment -- that was my extent of my involvement -- with
5 those bills that were part of that process.
6 Q
And do you know what subject matter those bills
7 comprised?
And what I mean by that is did they include
8 asbestos cases, chemical cases, and the Photoresist cases?
9 A
I can't recall.
I think they might have been
10 asbestos and chemical, but I'm not positive at this time.
11 Q
And it's your testimony that with respect to the
12 asbestos cases, no actual lawyer bills were provided; is
13 that correct?
14 A
Asbestos and chemical did not come with invoices from
15 law firms.
16 Q
The Photoresist cases, did they come with bills from
17 the law firms?
18 A
Photoresist cases, strangely enough, did come with
19 invoices from law firms.
20 Q
Do you have any personal knowledge regarding whether
21 the Photoresist bills from the law firms were part of the
30
1 review that Bob Burns and his team performed?
2 A
I don't believe that they were, but I don't recall
3 specifically.
4 Q
And why do you say you don't believe they were?
5 A
Because I don't believe at the time that Resolute did
6 make payment, I believe it was 2.2 million or around
7 there, I believe there were asbestos and chemical
8 payments.
9 Q
So the basis of your belief that the Photoresist
10 bills were not reviewed is because you only approved
11 payment for asbestos and chemical?
12 A
Could you repeat the question, please?
13 Q
Is the basis for your understanding that the
14 Photoresist bills were not part of the review based on the
15 fact that you were only asked to approve payment of
16 asbestos and chemical -17 A
No, what I'm saying is I don't have a recollection
18 specifically of what they reviewed.
I'm guessing that it
19 was asbestos and chemical at this late date.
20 Q
Do you know a person by the name of Nate Wilkie?
21 A
Yes, I do.
31
1 Q
And was Mr. Wilkie part of the review of these past
2 bills?
3 A
Nat Wilkie was my claim assistant that was assigned
4 to help me when I joined the Bob Burns team, and he
5 participated in the review, the Burns review.
6 Q
And do you know someone by the name of, I think it's
7 Helene?
8 A
Yes.
I believe that's the correct pronunciation.
9 She was, I believe, a C.A., claim assistant was her title,
10 I believe.
She was not working with me directly, but I
11 believe she may have been on the Burns team, although I'm
12 not positive.
13 Q
And do you know someone by the name of Misty?
14 A
Yes.
She also at the time was a claim assistant, I
15 believe on another team, but assisted with the Burns
16 review.
17 Q
How long did this review take?
18 A
I don't recall the length of time.
19 Q
Was it a week, two weeks?
20 A
As I said, I don't recall the length of time they
21 were in there.
32
1 Q
Now, a moment ago -- strike that.
When you took over the Celanese account, did you
2
3 talk with the person who had the account before you to
4 gain an understanding of what the status of the account
5 was?
6 A
I did speak with Brooke Green to get a brief overview
7 as to where she was at with some things and to get an
8 understanding of what was happening on the account.
9 Q
And what did you learn from Ms. Green with respect to
10 her payment of these past bills?
11 A
I don't believe she made any prior payment.
12 Q
Did you speak with anyone else regarding the Celanese
13 account at Resolute to gain an understanding of what the
14 account was about?
15 A
I don't recall anybody specifically.
16 Q
Did you ever talk to Gene Waymon about this account?
17 A
Pardon?
18 Q
About this account.
19 A
I believe I spoke to Gene Waymon once I started
20 handling the account and I was over in the Bruce Perkins
21 unit.
Gene Waymon reported to Bruce Perkins, who was not
33
1 on the Bob Burns team.
And Bob Burns was not particularly
2 thrilled with me speaking with people outside the Bob
3 Burns team.
4 Q
Did you -- what did you and Mr. Waymon talk about
5 with regard to the Celanese account?
6 A
I don't recall specific conversation.
7 Q
Do you ever recall him telling you that the load of
8 invoice submittal to Resolute is by way of spreadsheet as
9 opposed to actual lawyer bills?
10 A
I don't recall that specific conversation.
11 Q
Do you recall anyone ever telling you that
12 spreadsheets were the approved method of submitting
13 invoices to Resolute?
14 A
I recall having conversations with Joe -- yeah, Joe
15 Peters at Enviro-Tox when I communicated to him that I've
16 never handled an account where you wouldn't get an
17 invoice, and Joe's response was, "Well, we've always had
18 the bills processed in the past with the information that
19 was provided.
Or when they were processed, they were
20 processed with the information that was provided into
21 spreadsheets."
34
And my
1
response to Joe was, "I've never handled
2 an account in my entire professional career where somebody
3 asked me to pay millions or hundreds of thousands of
4 dollars based upon an Excel spreadsheet with a list of
5 claimant's names and dollar values next to it."
It's the equivalent of you going to a mechanic
6
7 and having your car fixed and the mechanic handing you a
8 piece of paper that says you owe five thousand.
Well, for
9 what?
10
I had no understanding as to what work was done
11 that generated hundreds of thousands and millions of
12 dollars of bills.
13 Q
So I wouldn't pay that.
You made the decision yourself that you weren't going
14 to pay these bills unless they were supported by lawyer
15 bills; is that correct?
16 A
I didn't make that decision myself.
17 industry standard.
That's an
As I've said, there's no other account
18 that I've handled where I never received an invoice from a
19 law firm explaining what they did on the bill.
20 Q
So your refusal to pay the bills was based upon your
21 experience in the industry, correct?
35
1 A
No, I'm not saying that.
2 what I considered.
3 case.
I'm saying that was part of
There were guidelines included in the
There was a cost share agreement and some
4 guidelines that gave both sides structure and some
5 parameters about how to handle things.
And there were
6 provisions in there with regard to billing.
7 Q
Well, with regard to the asbestos and chemical cases,
8 isn't it a fact that spreadsheets with a form of
9 submitting the invoices going back to 1998?
10 A
That may have been the standard, the form, of
11 submitting the invoices prior, but it was unacceptable
12 form.
It's unacceptable to expect somebody to make
13 millions of dollars of payments on a spreadsheet.
And I
14 alerted Joe that it may have been done in the past, but I
15 can't accept it at this point.
There is no rational basis
16 to expect me to forward to my management for approval of
17 millions of dollars of payments when I have nothing for me
18 to look at to say, yes, I verified this, I understand that
19 we owed this.
20
It was clear that we owed something.
The
21 problem was we couldn't figure out what we owed.
36
1 Q
So you'll agree that that was the method of payment
2 up until you took over the account.
3 A
No.
4 Q
You won't.
5 A
No.
Prior to me, the prior handler did not make
6 payments and spreadsheets I believe were forwarded to
7 prior to my involvement.
8 Q
And is it your understanding that Brooke Green
9 refused to make payments because they were in spreadsheet
10 form as opposed to actual defense bills?
11 A
My understanding is that we had been asking for the
12 defense bills, a normal backup documentation to support
13 the billing so we could determine what we owed.
14 we owed something.
The question was:
15 out and figure out what we owe.
16 we don't know what we owe.
We knew
Celanese, help us
We want to pay you, but
We can't pay off of a
17 spreadsheet.
18 Q
Like the exposure information, would you expect to
19 find in your email communications with Enviro-Tox your
20 requests for copies of the actual defense bills?
21 A
Pardon?
37
1 Q
Similar to the exposure information that we talked
2 about earlier, wouldn't you expect to see email
3 correspondence going back and forth regarding your
4 requests for the actual bills since it so important for
5 you as part of your job to review these bills?
6 A
Well, as I said, during this period of time, I was
7 talking with Celanese on a regular basis, sometimes daily,
8 sometimes multiple times during the day.
There were
9 conference calls scheduled with myself, Joe Peters, Donna
10 Hurt.
And when you're talking with somebody on a regular
11 basis, you don't necessarily follow up with an email every
12 single time.
There were certainly numerous verbal
13 communications.
There may be some email.
There may be
14 both.
15 Q
Well, it just seems odd that two pieces of critical
16 information for you, exposure information and defense
17 bills, is absent from any email communication.
18
MR. O'CONNOR:
19
THE COURT:
Objection.
Is there a question?
20 BY MR. MOSS:
21 Q
Are you aware of any email that contains your request
38
1 for actual defense bills from Celanese?
2 A
I can't recall all the emails I sent.
I have no way
3 of knowing that.
4 Q
Fair enough.
Are you aware of any email where you requested
5
6 exposure information from Celanese or from Enviro-Tox?
7 A
Again, I have no idea of all the emails I sent.
I've
8 sent thousands of emails in my career.
9 Q
And you don't recall Gene Waymon telling you that he,
10 as an employee of Commercial Union agreed to spreadsheets
11 as an acceptable method of transmitting the invoices to
12 the company for payment?
13 A
As I've said, I don't recall specific conversation
14 with Gene.
Gene could have said that, but I don't recall
15 specific conversation.
And even if Gene had agreed to do
16 that, that's not a requirement that that continued to be
17 in place.
18 Q
Well, if that was the agreement that Celanese and
19 Commercial Union struck, your refusal to abide by that
20 agreement is a breach of that agreement, correct?
21
MR. O'CONNOR:
Objection.
39
THE COURT:
1
Sustained.
2 BY MR. MOSS:
3 Q
If Commercial Union agreed to accept spreadsheets as
4 the appropriate method of payment, your refusal to accept
5 those spreadsheets as an effective means of payment would
6 be a breach of the arrangement between Commercial Union
7 and Celanese, correct?
8
MR. O'CONNOR:
9
THE COURT:
Objection.
Sustained.
10 BY MR. MOSS:
11 Q
When do you recall the first time that you asked
12 Celanese for the defense bills?
Do you have a
13 recollection?
14 A
Sometime during the beginning of my taking over the
15 account during that period.
Sometime after December of
16 '03.
17 Q
And whenever that time was, you were now changing, if
18 you will, the way that this account had been handled in
19 the past, correct?
20 A
No.
I don't believe the cost share arrangement
21 referenced -- I'm sorry.
I believe the cost share
40
1 arrangement referenced that there would be specific
2 billing information.
And if that information wasn't
3 provided, then it certainly wasn't a change.
4 are provided in the normal course.
5 the ordinary.
And invoices
It's nothing out of
Celanese is not a unique defendant that
6 would be in a situation generating them not to provide
7 invoices.
8
It was something that was important for us to
9 receive so they could get the money that we owed them.
10 The question was, how much do we owe them.
11 Q
Do you find it odd that Celanese was providing you
12 with copies of the Photoresist bills but not the asbestos
13 or chemical bills?
14 A
I did find it unusual, but when you look at the
15 Photoresist bills, you can see that the bills are wholly
16 inadequate.
Although they are an invoice from a law firm,
17 they are not adequate enough to decipher what the charges
18 really are for in terms of the individual claimants.
19
Sometimes the bills do not have parenthetical
20 references, which was part of the requirement in the cost
21 share arrangement to identify which sub-plaintiff the
41
1 charges involved upon.
The bills were forwarded to
2 Resolute by lead plaintiff, so you have claims that have
3 multiple plaintiffs in one case.
And Celanese was
4 submitting the bill all under one name.
I had no way to
5 dissect the bill to know if some of the charges were for
6 the Smith case or the Johns case if there wasn't a
7 parenthetical reference.
And I had no way to know without
8 the exposure information that we had asked for that they
9 failed to provide us whether, in fact, C.U.'s policies
10 were impacted.
11
12 Q
So, no, they were wholly inadequate.
So all of the defense firms that were defending
13 Celanese in these Photoresist cases, their billing was,
14 based on your standard, inadequate; is that correct?
15
MR. O'CONNOR:
16
THE COURT:
17
MR. O'CONNOR:
Objection.
What's your objection?
I don't think she commented on
18 the defense firm's billing practices.
She commented on
19 something different.
20
THE COURT:
Well, limited the question to the
21 bills that Ms. Bresson saw, you may answer the question.
42
1 A
The bills were inadequate for the purposes of
2 determining whether we owed the money that was identified
3 on the proration or spreadsheet that Enviro-Tox had
4 provided.
5
So it was impossible for me to determine from
6 the bills whether everything that was assigned to me,
7 C.U., for payment was in fact what I owed because you
8 could not break down the bill to know whether five
9 plaintiffs in that given case that were all being labeled
10 as, for example, the Ruffing case, the lead plaintiff,
11 were in fact -- had exposure during my police period, the
12 C.U. policy period. So I couldn't make sense of whether I
13 really owed the whole amount, I owed a portion of it,
14 whether Enviro-Tox had made the break-down correctly.
15
Typically what you see in defense bills is you
16 see bills by plaintiff.
So for every case you have, you
17 would have a plaintiff bill.
18 the top.
19 bills.
You'd have the John Smith at
You would also generally have general matter
But Celanese did not have that kind of
20 arrangement, and Celanese precluded me from communicating
21 from defense counsel.
I've never had another account
43
1 where I couldn't talk to defense counsel.
So I had no
2 daily interaction with the defense counsel to know, in
3 fact, on 3/25/07 or 3/25/05 or they attended a hearing or
4 they attended a deposition or they answered
5 interrogatories.
I would have no way of knowing if that
6 charge was, in fact, a charge on behalf of Celanese and,
7 in fact, a reasonable and necessary charge because I had
8 no involvement with defense counsel, which was highly
9 unusual.
10 Q
You weren't involved in the negotiation of the cost
11 agreement back in 1998, were you?
12 A
No, I was not.
13 Q
You don't know what was agreed to at that time?
14 A
Pardon?
15 Q
And you're not aware of what discussions were had at
16 that time regarding how this account was going to be
17 handled?
18 A
Well, I clearly wasn't present back then.
I can only
19 go on the written agreement that was in the file.
20 Q
Right.
And the same with the Photoresist Agreement
21 of 2001, you weren't a participant in that agreement,
44
1 correct?
2 A
It was before my time.
3 Q
And you never attended any of the insurer Enviro-Tox
4 yearly meetings.
5 A
I was never asked to attend any yearly meetings by
6 Enviro-Tox for Celanese.
7 Q
Were you aware that there were yearly meetings?
8 A
I was advised that they had in the past had yearly
9 meetings.
Once I took on the account, they did not have
10 yearly meetings.
11 Q
Going back to the Burns team review of the bills,
12 were you presented with requests for payment of
13 Photoresist bills by Mr. Burns or anyone in the team?
14 A
I don't recall specifically.
15 Q
Did Mr. Burns ever ask you to approve payment of
16 Photoresist bills that you had inherited when you took
17 over the account?
18 A
Are you asking me based upon the audit?
19 Q
I'm asking you at any time during the first six
20 months of your employment with Resolute?
21 A
I don't recall specifically.
45
1 Q
You sure about that?
2 A
I don't recall specifically.
3 Q
So you have no recollection of Mr. Burns asking you
4 to approve payment of Photoresist bills?
5 A
I'm saying at this time I have no specific
6 recollection of a communication or conversation with Mr.
7 Burns.
8 Q
Do you recall having a meeting with Mr. Burns in H.R.
9 and your Human Resource manager regarding your refusal to
10 sign off on Photoresist bills?
11 A
No.
12
Excuse me, can I qualify?
13
THE COURT:
14 A
Yes, you may.
The only meeting I had with Mr. Burns -- well, the
15 only dealing I had with Mr. Burns with regard to H.R. was
16 a situation where Mr. Burns identified on my performance
17 evaluation and in essence made a notation in my filing
18 dinging me because I was communicating.
I was, as he I
19 believe phrased it, chatting with other people,
20 specifically Brooke Green.
And once I got my performance
21 appraisal and saw that reference in there, I was
46
1 astounded, number one, that it was put in there, it was
2 absolutely ridiculous that reference was made that I was
3 talking with other individuals on the floor at Resolute
4 that are handling the exact same cases that I'm dealing
5 with that would make great resources.
I communicated
6 numerous times back and forth with the H.R. rep, Mary
7 Slozak, regarding that derogatory comment in my P.A.
I
8 asked for it to be removed because I thought it was
9 retaliatory.
I thought it was unfounded and
10 inappropriate.
11
My communications went back and forth with Mary,
12 as well as Bob Burns, I believe.
I believe the final
13 resolution is that I made notations in my P.A. that I was
14 not in agreement with the comment.
However, I believe it
15 may have been left in, although I do not know for a fact.
16 Q
Do you have something against Mr. Burns?
17 A
Mr. Burns was not someone who was particularly
18 welcoming to me as a new employee, and it was clearly
19 evidenced by some of his comments in my review.
20 Q
Do you recall having any discussion with anyone at
21 Resolute regarding trying to negotiate a discount of the
47
1 payment of the earlier Photoresist bills that you had
2 inherited when you took over the account?
3 A
I don't have a specific recollection.
It could have
4 been something that was discussed generally in terms of
5 the account, but I don't have a specific recollection of
6 the conversation.
7 Q
Do you have any recollection of Mr. Burns telling you
8 that if you didn't pay the Photoresist bills that you
9 would be in breach of the Photoresist Agreement?
10 A
No, I have no recollection of Mr. Burns indicating
11 that.
12 Q
Do you have any recollection of Mr. Burns telling you
13 that refusal to sign off on the payment of those
14 Photoresist bills would be in bad faith?
15 A
No.
16 Q
Ms. Bresson, if you would turn to Exhibit 25, I have
17 some questions for you.
Ms. Bresson, do you recognize the email from you
18
19 to Mr. Peters, dated April 15, 2004?
20 A
Yes.
21 sent.
It appears to be a copy of the email that I
48
1 Q
And you're indicating to Mr. Peters that you've
2 arranged for the payment of some of the past chemical and
3 asbestos bills; is that correct?
4 A
Yes.
It lists about five different periods or
5 quarters of bills that had been reviewed.
6 Q
And these bills that have been approved date from the
7 Second Quarter of 2002 to the Fourth Quarter of 2003; is
8 that correct?
9 A
10 Q
Yes, that's correct.
So some of these bills were at least two years old
11 when they were reviewed for payment, correct?
12
MR. O'CONNOR:
13
THE COURT:
14
MR. O'CONNOR:
Objection.
What's your objection?
It's untrue that it's two years
15 from the Fourth Quarter '04 to April of '04.
16 BY MR. MOSS:
17 Q
Approximately two years old.
18 A
It's five quarters' worth of bills.
19 Q
Dating back to 2002?
20 A
2002, 2003.
21 Q
And there were no Photoresist bills as part of this
Five quarters.
49
1 set of approved bills; is that correct?
2 A
According to this, yes.
I mean, no, there's no
3 Photoresist.
4 Q
Now, the approval process at Resolute entails several
5 levels of approval; is that correct?
6 A
Yes, it does.
7 Q
Please describe how that process works.
8 A
Typically, a bill would come in and my claim
9 assistant would be responsible for setting up the
10 paperwork, so to speak, getting the payment cover form
11 together, maybe double-checking the math, setting it up in
12 the system.
It would then come to me physically as well
13 as I believe electronically.
I would review it again, in
14 this case, double-check the math.
15
I wouldn't have the -- in these bills, I did not
16 have the invoices again.
So in an effort to make a good-
17 faith payment and move things along, you're processing
18 bills here without invoices, knowing that we owe
19 something, but we didn't know what we owed, I would then
20 look at the paperwork, the spreadsheets that were
21 attached, double-check the math, double-check the payment
50
1 cover form.
I would have to physically -- or execute my
2 signature on the form and process it in the system, in the
3 computer system, and then it would go to my supervisor, my
4 unit leader, whoever that was at the time, and then that
5 individual would review the paper that I placed on his
6 desk, as well as go into the system and click the button,
7 in essence, and sign off on the bill.
8
And then depending upon the dollar value of the
9 bill, the bill would then go -- if it was within that
10 manager's authority, it would then go to accounting, and
11 if it was above their authority, it would then go to Tom
12 Ryan, and it would be outside Tom Ryan's cube until Tom
13 reviewed the bill and moved it forward for processing.
14 Q
And was that the process throughout the entire time
15 that you worked for Resolute?
16 A
Yes, it was.
17 Q
Now, a moment ago you mentioned reviewing of
18 spreadsheets.
The bills that are at issue -- well, the
19 bills that are referenced in Exhibit 25 were bills that
20 were reviewed by the Burns team; is that correct?
21 A
I don't know that for a fact.
Today I don't know
51
1 that.
2 Q
I'm assuming that they were.
Well, these are bills that go back to 2002, and I
3 thought you had testified earlier that you had nothing to
4 do with that review other than signing any requests for
5 payment?
6 A
Can you repeat the question?
7 Q
I thought that you had testified earlier that you had
8 nothing to do with the review of the bills that you
9 inherited when you took over the account.
And these
10 clearly are bills you inherited when you took over the
11 account.
12 A
I had no involvement in the Bob Burns audit.
13 Q
Now, the email references that these bills still need
14 to be approved by Tom Ryan; is that correct?
15 A
It says, "These payments will need to be approved by
16 Tom Ryan."
17 Q
The next paragraph after the paragraph that you just
18 read from indicates that, "You are correct.
I do owe you
19 and Kathleen Adamik a coverage position letter."
20
21 A
Do you see that?
Yes, I do.
52
1 Q
Can you describe what is being referenced in that
2 sentence?
3 A
I believe it's in reference with regard to Resolute -
4 - yeah, Resolute's position on what they were going to do
5 in terms of if they had coverage issues regarding
6 outstanding bills.
7 Q
Did you ever provide a coverage position letter as
8 promised in that paragraph?
9 A
I don't believe before I left a full-blown coverage
10 position letter was issued.
11 Q
And when did you leave?
12 A
I left in September of 2007.
13 Q
The next sentence after you promised the coverage
14 position letter is, "I expect to dedicate time this next
15 week to complete that letter."
Is that correct?
16 A
That's what it says.
17 Q
And that's what you told Mr. Peters back in April
18 2004?
19 A
That's what it says, correct.
20 Q
If you turn to the second page of Exhibit 25, please,
21 Ms. Bresson, there's a reference in this email from Mr.
53
1 Peters to you stating, "I have not received your written
2 coverage position on the site occurrence issue."
Do you see that?
3
4 A
Yes, I do.
5 Q
Is the coverage position letter that's referenced in
6 the email that we just reviewed a moment ago the coverage
7 position letter that Mr. Peters is requesting in the April
8 15th email?
9 A
It appears it would be at least included in part,
10 yes.
11 Q
Is it your memory that you're intending to prepare a
12 coverage position memo that went beyond what Mr. Peters
13 describes as a site occurrence issue?
14 A
Well, a coverage position letter would address
15 numerous issues, just not the site occurrence issue.
It
16 would certainly address aggregate issues, impairment
17 issues, if there were any other coverage issues that
18 needed to be identified or discussed.
And we had
19 discussed these numerous times in phone conversations as
20 well.
21 Q
How long have you been a claims handler?
54
1 A
Pardon?
2 Q
How long have you been a claims handler?
3 A
Over twenty years.
4 Q
And it's your understanding that as a claims handler
5 you have a duty to provide a reasonable explanation
6 regarding coverage position within a reasonable amount of
7 time, correct?
8
MR. O'CONNOR:
9
THE COURT:
10
Objection.
What's your objection?
MR. O'CONNOR:
I think he's asking for a legal
11 conclusion about who's got what duty to do what.
12
THE COURT:
I'll allow Ms. Bresson not with a
13 legal conclusion but with her understanding.
14 A
Can you repeat the question, please?
15 BY MR. MOSS:
16 Q
Do you believe that you have a duty to provide a
17 reasonable explanation regarding the coverage position
18 within a reasonable amount of time?
19 A
I believe you have an obligation to provide
20 explanation.
Explanation had been provided on numerous
21 occasions on various phone conversations, requesting
55
1 information, addressing the issues that Resolute had with
2 Celanese in terms of the information that they had failed
3 to provide on a continual basis.
4 Q
These are the phone conversations that you referenced
5 earlier today?
6 A
Numerous phone conversations, yes.
7 Q
Nothing in an email?
8 A
Nothing in an email -- can you repeat your question?
9 Q
Did you ever provide an email communication to
10 Celanese regarding your coverage position?
11 A
As I previously stated, I don't believe a coverage
12 letter was issued prior to my departure.
13 Q
So again, if there was anything -- any coverage
14 position that you provided by way of telephone; is that
15 correct?
16 A
No, not exclusively.
17 that addressed the issue.
There were certainly emails
What I'm saying is that a
18 formal letter did not leave before I left in 2007.
19 Q
Over two years after the request had been made by
20 your insured, correct?
21 A
Repeat, please.
56
1 Q
That was over two years after the request had been
2 made by Celanese for that coverage position letter?
3 A
It was that amount of time after which they had asked
4 and equally that amount of time after which we had been
5 asking for information that they failed to provide us.
6 Q
Ms. Bresson, would you please turn back to Exhibit
7 23, please, two exhibits preceding Exhibit 25.
8 it's one exhibit.
Actually,
Do you recognize this exhibit, Ms.
9 Bresson?
10 A
It looks like an email that Bob Burns had sent to me,
11 yes.
12 Q
And it's dated March 15, 2004?
13 A
Correct.
14 Q
Why were you inviting or asking Mr. Burns to
15 participate in a conference call with Enviro-Tox and
16 Celanese?
17 A
As I previously stated, this is March, so
18 approximately six months or so, maybe not quite, after
19 taking over the account and dealing with Celanese, it was
20 clear that we owed something.
21 on the bills.
We know we owed something
The problem was that the bills were not in
57
1 a format that we could decipher the information.
I was having regular, sometimes daily, certainly
2
3 multiple times during the week calls with Celanese, Donna
4 Hurt, Joe Peters, regarding how we were going to tackle
5 the outstanding balance, how we were going to resolve the
6 issue.
I wanted to get them payment, and they had
7 indicated they would be helping me with information that I
8 needed.
I needed my manager's input and involvement in
9 this situation because I recognized that it was a large
10 amount of money and that we owed something.
I needed his
11 assistance to help me with figuring out what it is that we
12 owed and the process that we would need to go about
13 getting payment to the extent we could determine what was
14 reasonable and necessary for the charges that we owed.
So as a manger, I would include him and ask him
15
16 to assist me in a conference call on the 17th, it appears.
17 Q
And in March of '04, there was approximately $10
18 million that was being held up for payment; is that
19 correct?
20 A
Bob states that it's $10 million.
21 fact it was.
I don't know for a
58
1 Q
And is it your memory that as of March '04, you had
2 requested from Enviro-Tox and Celanese copies of the
3 asbestos and chemical bills, the actual lawyer bills?
4 A
Yes.
We had requested billing information from
5 Enviro-Tox.
And I believe as I previously stated, Joe
6 Peters has indicated that they hadn't been asked to
7 provide that billing information before, and it would be
8 onerous and burdensome, Cristy, and why do you need it?
9
And I needed it.
10 to pay a bill.
You needed an invoice in order
We had made $2.2 in payments.
Maybe not
11 at this time, but the file will reflect that we made 2.2
12 million in payments, all of which did not have the billing
13 information that we had been requesting for a long, long
14 time that should have been sent in.
15
So we were making our good-faith efforts knowing
16 full well we owed something.
We wanted them to cooperate
17 and give us the information we had been asking for, the
18 information that was reasonable, the information that
19 would have been expected to be attached to a spreadsheet
20 or an invoice asking for hundreds of thousands of dollars.
21 Q
Are you saying that if Celanese or Enviro-Tox had
59
1 given you a C.D. that had all of the underlying defense
2 bills that comprised the $10 million, that you would have
3 cut a check for that 10 million or whatever the amount was
4 owed?
5 A
I didn't say that.
I said --
6 Q
I'm asking you if that's what you would have done.
7 A
I would have to look at the bills.
8 Q
Did you tell Enviro-Tox, "Listen, I'll cut you a
9 check for whatever's owed, but I just need the defense
10 bills"?
11 A
I don't recall specific conversation when I said
12 that.
13 Q
And I would think that if someone said, "Jeff, I know
14 I owe you the money, but if you give me the bill, I'll pay
15 you," I would go ahead and provide the invoices.
16
MR. O'CONNOR:
17
THE COURT:
Objection.
Sustained.
18 BY MR. MOSS:
19 Q
If I told you, Ms. Bresson, because I owed you $10
20 million, "Ms. Bresson, give me the bills and I'll pay ya,"
21 you'd give the bills, wouldn't you, for that amount of
60
1 money?
2 A
I wouldn't say that.
I wouldn't say give me the
3 bills and I'll pay you the money, because I would need to
4 evaluate the bills, to look at the charges, to know that,
5 in fact, I was obligated and I owed this portion of the
6 bill.
I would never tell somebody, "Give me the bill and
7 I'll give you a check."
I wouldn't have the authority, number one.
8
My
9 authority was at a very low level and the process had to
10 go up.
So I would never insinuate to anybody that just
11 give me the bill and you're going to get your money,
12 because I couldn't guaranty that there wouldn't be a
13 question or a glitch above me where somebody would say,
14 "Well, hey, Cristy, why should we be paying this?"
15 Q
Well, how about, "Give me the bills, I'll review them
16 and I'll pay what's owed"?
17 A
I asked for the bills.
18 bills.
They did not give me the
They did not want to give me the bills.
19 me the bills on Photoresist.
They gave
The bills were inadequate.
20 They did not want to give me the bills on asbestos and
21 chemical.
As Joe indicated, it was going to be burdensome
61
1 and onerous, Cristy.
2 those bills.
Nobody in the past has asked for
It's going to take us a lot of time.
Does
3 Commercial Union or OneBeacon want to pay for that?
And we would have paid for it.
4
We wanted the
5 bills to review them so we could figure out of the
6 millions of dollars that Celanese was outstanding and said
7 that they were owed, what could we pay them and be
8 comfortable with based upon the documentation that we were
9 provided.
We were not provided documentation.
And I made payments in good faith trying to get
10
11 them to recognize that, look, I'm making payments here,
12 you guys, and I have no documentation.
I need you to help
13 me.
They did not help me.
14
They didn't provide the
15 invoices.
16 Q
Were the invoices ever provided?
17 A
Eventually.
18 Q
When was that?
19 A
I don't recall a specific date.
Certainly -- it was
20 prior to, I believe, prior to -- geez, maybe one of our
21 audits.
I don't recall a specific date.
But bills for
62
1 chemical and asbestos were eventually provided.
2 Q
Going back to Exhibit 23, do you recall whether or
3 not that conference call with Enviro-Tox and Celanese went
4 forward?
5 A
I don't recall at this time.
We had hundreds of
6 conference calls during my tenure with the account.
7 Q
Hundreds?
8 A
I would say.
9 Q
Between what period of time are you saying that there
10 were hundreds of conference calls?
11 A
I would say between the time I started the account
12 and the time I left.
That's a three-year, four-year
13 period.
14 Q
And you worked part-time during that time period?
15 A
Hmm-hmm.
16 Q
And your testimony is that there were hundreds of
17 conference calls?
18 A
There was a lot of calls.
19 Q
And a lot to you --
20 A
I'll clarify.
There was a lot of calls.
21 hundred is a large number.
Maybe a
But compared to any of my
63
1 other accounts, this account consumed enormous amounts of
2 time.
There were calls, as I say, daily, weekly, on a
3 regular basis.
There was calls with Joe Peters apart from
4 Donna Hurt.
There was calls with Donna Peters and Joe
5 Hurt [sic].
There was calls to follow up on statuses.
6 there was numerous, many, many, many calls.
7 Q
And if Enviro-Tox or Celanese called you, would you
8 return all of their calls?
9 A
I can't say I returned every call, no.
10 Q
Did you ever duck their calls?
11 A
Pardon?
12 Q
Did you ever duck their calls, avoid their calls?
13 A
Duck their calls?
14 Q
Ms. Bresson, could you turn to Exhibit 211, please,
No.
I would have no reason to.
15 and specifically the page that has the Bates No. 439.
16 It's the second page of the exhibit.
Do you see there's an email from you to Donna
17
18 Hurt, dated October 14, 2004?
19 A
From me to her?
20 Q
Yes.
21 A
Yes.
So
64
1 Q
Who is Donna Hurt?
2 A
I don't know Donna's title.
3 she's no longer with Celanese.
My understanding is
She was the point person
4 at Celanese that I was dealing with during my involvement
5 on the account until she left the company.
6 Q
And she was one of the persons that you would have
7 calls with, along with Joe Peters; is that correct?
8 A
Yes, Donna was.
9 Q
And in this email you referenced some additional
10 payments that you are in the process of making; is that
11 correct?
12 A
It says I have made requests for the following
13 payments, yes.
14 Q
And what does that mean, "I have made requests."
15 Where is the -- where are the payments in the payment
16 approval process, if you will?
17 A
Well, I can't speak specifically to every one of
18 these.
That could have been either a -- that could either
19 have been a reference to that some of the payments were
20 either on my desk, waiting for my approval with -- maybe
21 with Bruce or Bob, depending upon who I was reporting to,
65
1 and/or with Tom.
So they're requests that have been put
2 together and in the process.
3 in with Tom and waiting.
4 Q
And/or they could have been
I don't recall specifically.
So when you say that the requests have been made, the
5 review of those bills has already been completed; is that
6 correct?
7 A
The review of the bill that was completely inadequate
8 was reviewed along with a comparison to the quarterly
9 reports that we received to try to see if we could make
10 any sense of the description, the reports based upon the
11 description in the text of the bills, which was extremely
12 difficult.
You couldn't do it.
And that was for Photoresist, and that would
13
14 have been moved -15 Q
Ms. Bresson --
16 A
-- forward with in the process.
17 Q
-- just answer my question.
18 A
I thought I did.
19 Q
My question is, had the bills been reviewed and now
20 they were in -- and approved and now the request is being
21 made.
That was my question.
Had they already been
66
1 reviewed?
2 A
Bills for Photoresist would have been reviewed.
3 There were no -4 Q
Okay.
And about what asbestos and chemical?
5 A
There were no bills for asbestos or chemical.
6 Q
Well, there's two references in your email to
7 asbestos and chemical.
That's what I'm asking.
Had those
8 also been reviewed and now were just waiting to be
9 approved?
10 A
The two references to asbestos and chemical were in
11 the process for payment.
Where in the process they were,
12 I can't tell from the email.
There were no bills attached
13 to those -- there were no invoices attached to those
14 requests for payment by Celanese.
They were spreadsheets.
15 The spreadsheets would have been looked at and reviewed.
16 The basic cross-checking, math-checking would have been
17 done, yes.
18 Q
And just so we're clear, that same checking would
19 have been done for the Photoresist; is that right?
20 A
The spreadsheet checking, yes, would have been done
21 for Photoresist in addition to a review of the inadequate
67
1 bill that was attached -- invoice, rather.
2 Q
And at this time in October 2004, you were approving,
3 among other bills, the Fourth Quarter of 2003 for
4 Photoresist as well as the First Quarter 2004 for
5 Photoresist; is that correct?
6 A
That's what it says, yes.
7 Q
And so all that was left was the ministerial act of
8 the signatures up the chain and then the checks go out the
9 door; is that right?
10 A
There would be the process of moving the actual bills
11 and the paperwork as well as management approving the
12 bill.
13 Q
And then it goes out the door?
14 A
If these were bills that got to the level of Tom
15 Ryan, then once Tom Ryan approved the bills, they would
16 have been sent over to accounting and processed.
I don't
17 see it after that.
18 Q
Okay.
And for bills that require Tom Ryan's
19 signature, until he signs off on them, they don't go over
20 to accounting, correct?
21 A
Correct.
68
1 Q
Ms. Bresson, if you could turn to the first page of
2 Exhibit 211, I have a couple of questions for you
3 regarding the October 15, 2004, email that starts at the
4 bottom of the page and transfers over to the next page.
5
Do you recall receiving this email, Ms. Bresson,
6 from Donna Hurt on or about October 15?
7 A
This email looks familiar.
8 Q
Do you have any reason to believe you didn't receive
9 it?
10 A
No, I don't.
11 Q
In the second paragraph of this email, Ms. Hurt
12 inquires of you, "When might you expect Mr. Ryan to
13 approve the payment request that you have just made?"
14
Do you see that?
15
MR. O'CONNOR:
16
THE COURT:
17
MR. O'CONNOR:
Objection, your Honor.
What's your objection?
Hearsay.
If it's not for hearsay
18 purpose, I have no objection.
19
THE COURT:
Do you have a problem with that
20 limitation?
21
MR. MOSS:
I'm just asking the witness if she
69
1 recalls receiving this email and whether she recalls being
2 asked or reviewing that request.
3
MR. O'CONNOR:
4
THE COURT:
5 A
No objection to that question.
For that purpose, you may answer.
Can you repeat the question, please?
6 BY MR. MOSS:
7 Q
Do you recall that Ms. Hurt was inquiring you on
8 October 15, 2004, what the status of payment of the
9 Photoresist bills were?
10 A
Ms. Hurt states in her email, "When might you expect
11 Mr. Ryan to approve the payment request that you have just
12 made?"
13 Q
And did you respond to Ms. Hurt?
Do you have a
14 recollection of responding to Ms. Hurt?
15 A
I don't recall.
Typically if Donna was asking me for
16 the status of the bills and they were with Tom, I would
17 have told her that I will attempt to get a status.
I
18 would then go to Bruce Perkins or Bob Burns, my managers,
19 and say I need to know if the bills had been approved, and
20 Bruce or Bob would have gone to Tom.
21 Q
I may have asked you this before.
Do you recall when
70
1 your team leader changed from Mr. Burns to Mr. Perkins?
2 A
You did ask me that before and I don't recall the
3 exact time frame.
4 Q
Do you recall that on October 15, 2004, Ms. Hurt was
5 asking you for information regarding product aggregate
6 impairment?
7 A
Yes.
She states that request in her email.
8 Q
And had she requested that information on prior
9 occasions?
10 A
I don't recall specifically, a specific email.
11 Q
Do you recall any instance where Celanese or Enviro-
12 Tox had asked you to provide them with product aggregate
13 information?
14 A
I don't recall specific discussion.
Generally, in
15 our discussions where I was asking information regarding
16 exposure, site information, information about corporate
17 history, Donna and Joe had asked for information about how
18 much had been eroded or what the aggregate was on our
19 policies.
But I can't recall a specific date that those
20 communications started.
21 Q
Would you turn to Exhibit 22 briefly, without losing
71
1 your place on Exhibit 211.
And referring to the third
2 paragraph from the bottom of Exhibit 22, which is an email
3 from Donna Hurt to Cristy Bresson, dated February -- first
4 off, do you recall seeing this email?
Are you familiar
5 with this email?
6 A
This email looks familiar.
7 Q
Do you have any reason to believe you didn't receive
8 this in the normal course of your business at Resolute?
9 A
10 Q
No.
And do you see in that third paragraph from the
11 bottom, Ms. Hurt is asking you for product aggregate
12 information?
13 A
Yes, she does ask for that.
14 Q
And that was in February 2004, correct?
15 A
That's the date of the email, yes.
16 Q
And then turning to Exhibit 211, which is the October
17 15, 2004, email, she's still asking you for product
18 aggregate information; is that correct?
19 A
Yes, she is.
20 Q
Did you ever provide Enviro-Tox or Celanese with the
21 information regarding product aggregate that's referenced
72
1 in the February email or the October email?
2 A
No.
I don't believe that I did provide them with the
3 aggregate information.
THE COURT:
4
If you would just clarify what the
5 aggregate information is that you're referring to.
THE WITNESS:
6
They were asking for impairment
7 information, which is a lost run -- or information that
8 explains how much money has been paid to date on the
9 policies.
They were looking to get that information.
10
THE COURT:
11
THE WITNESS:
On indemnity or defense?
They were looking for indemnity,
12 but you could get information on both, what it had been
13 paid to date for indemnity on the policy meeting,
14 settlements that had been paid that we then made payments
15 on.
But you could also run those kinds of reports to also
16 include how much defense has been paid on any policy.
17 BY MR. MOSS:
18 Q
And this product -- you mentioned a moment ago "loss
19 runs."
20 A
What's a loss run?
It's a generic term.
As I've indicated, it's a
21 vehicle- or report-type documentation that would provide
73
1 policy information, dollar amounts that had been paid to
2 date on each policy so you could look at that to evaluate
3 how much remaining limit or balance you have left on the
4 policy.
5 Q
And that information is important for the insurer,
6 correct, to know what's left, what their obligations are
7 remaining on the policy?
8 A
It's important, yes.
9 Q
And it's also important to the policyholder to know
10 how much security they have behind them before the policy
11 exhausts, correct?
12 A
It's important to both parties, yes.
13 Q
And the loss information that's being requested in
14 the February 4, 2004 and October '04, emails is
15 information the is uniquely in the possession of Resolute
16 and OneBeacon, correct?
17 A
Yes.
They would have the information.
18 Q
Would you please turn to Exhibit 32.
Have you seen
19 this email before, Ms. Bresson?
20 A
Yes, it looks familiar.
21 Q
And there's actually two emails here.
One is from
74
1 you to Mr. Burns, dated August 19, 2004.
2
Do you see that?
3 A
Yes, I do.
4 Q
And you were inquiring of Mr. Burns regarding the
5 status of the loss runs.
6 A
Correct.
7 Q
And you were inquiring of Mr. Burns regarding the
8 status of the loss runs because Joe Peters had called you
9 again looking for that information; is that correct?
10 A
That's what I state in the email, yes, I received a
11 call from Joe Peters.
12 Q
And Mr. Burns in response to your request regarding
13 where are the loss runs, he tells you that he put them on
14 your desk some time ago.
Do you see that?
15 A
I do.
16 Q
So did you, in fact, find the loss runs?
17 A
I never received the loss runs from Mr. Burns.
I
18 could not find them.
19 Q
Did you ask him to print additional loss runs?
20 A
I asked him for copies of the loss runs.
He
21 responded by, "I put them on your desk some time ago," and
75
1 never provided me any additional copies of loss runs.
2 Q
Did you ever take any further steps to acquire the
3 loss runs yourself?
4 A
We had requested loss runs internally, I believe, as
5 a standard course when you need to look at aggregate
6 information.
7 Q
What does that require?
Just going to a computer and
8 pulling up that information and printing it out?
9 A
It wouldn't be information that I would do.
10 have to make a request.
I would
At this time, in 2004, I don't
11 recall who was doing the requests, but there would have to
12 be some accessing other databases that Commercial Union
13 might have had available to sort of get the whole picture
14 of what the impairment would have been.
15 Q
When did you ask Mr. Burns for the loss runs?
16 A
When did I ask him?
17 Q
Yes, in relation to this August email.
18 A
Well, I asked him on August 19th what the status was,
19 because a few months prior I had asked him to do the loss
20 runs, help me with the loss runs.
21 answered your question.
I don't know if I
76
1 Q
It doesn't take months to create a loss run, does it?
2 A
It depends.
I mean, sometimes the information is not
3 all at your fingertips.
You have to compile multiple
4 resources to gather the information, then you have to
5 sometimes, if it's from multiple sources, compile it to
6 one document that would be readable or informative for
7 somebody to receive it.
So it could take a period of
8 time.
9 Q
When you took over the account in January of '04, and
10 you indicated earlier this morning that you reviewed the
11 file, did you come across any evidence of a loss run
12 having been run before you took over the account?
13 A
I don't recall seeing a loss run.
14 Q
Ms. Bresson, please turn to Exhibit 37.
Do you
15 recognize this email, Ms. Bresson?
16 A
It looks familiar.
17 Q
And when was the last time you saw this email?
18 A
I probably saw it as I was preparing for testimony.
19 Q
Testimony today?
20 A
Yes.
21 Q
Do you recall a discussion you had with Joe Peters in
77
1 early December 2004, where you informed him that the
2 Second and Third Quarter 2004 Photoresist bills had been
3 approved for payment?
4 A
I don't recall a specific conversation.
That's what
5 he indicates in this email.
6 Q
Were the Second and Third Quarter 2004 Photoresist
7 bills paid, to your knowledge?
8 A
I don't recall.
I don't recall what specific
9 quarters were paid.
10 Q
And up to this point in time, December 2004, I
11 believe you indicated earlier that you were still making
12 payments on past quarterly invoices; is that correct?
You
13 were still processing payments from earlier quarters?
14 A
In December 2004, I believe by that time we processed
15 whatever the Burns audit generated the request for me to
16 process.
So I think the timing was that.
I'd have to
17 look at an email you just referred previously.
But
18 whatever the Burns audit told me to pay is what was
19 processed.
20 Q
And all of those bills were processed based on the
21 spreadsheet information that you described as being
78
1 inadequate, but that's what was relied upon to process the
2 payments, correct?
3 A
Bob Burns and the other members of the audit relied
4 upon spreadsheets, cross-checking the spreadsheets as a
5 way to provide an okay for me to go forward with the audit
6 -- go forward with the payment, sorry.
Which is why I
7 wanted no part of the audit.
8 Q
You wanted no part of the audit because you wanted
9 more information?
10 A
Because approving hundreds of thousands of dollars of
11 bills based upon a spreadsheet cross-check and checking
12 the math is totally inadequate and I wouldn't do it.
13 Q
Did anyone at Resolute instruct you not to pay or not
14 to process those bills based solely on the spreadsheets?
15 A
I was instructed to get the information that I needed
16 in order to process a payment, which would be invoices, so
17 that I could communicate to my management that in fact
18 what I was submitting for reimbursement that was going out
19 to Bruce Perkins or Bob or Tom was, in fact, what we owed.
20 It's my obligation to be comfortable and know that when
21 I'm asking the company that I work for to pay hundreds of
79
1 thousands of dollar and millions of dollars, that I've
2 reviewed something that says, and I've made an analysis
3 that says, yeah, we owe that.
4 Q
I couldn't do that.
Returning to Exhibit 211 for just a moment -- and
5 again, these are the Fourth Quarter 2003 and First Quarter
6 2004 Photoresist chemical and asbestos bills that we
7 talked about earlier this morning, did you personally
8 process these bills?
9 A
Can you clarify what email you're referencing on this
10 page?
11 Q
I'm sorry.
I'm sorry.
It's the second page of 211.
It's Bates
12 No. 439 that we were talking about earlier.
13 A
The Thursday, October 14th email?
14 Q
Yes.
15 A
From me to Donna?
16 Q
Yes.
17 A
Okay.
Can you repeat your question?
18 Q
Sure.
Did you personally review and approve the
19 bills that are the subject of the Fourth Quarter 2003 and
20 First Quarter 2004 payments that are referenced in this
21 email?
80
1 A
Again, I don't recall whether the Burns audit
2 included these.
If the Burns audit included these, then I
3 would have been processing after the Burns audit.
If the
4 Burns audit didn't include these, then I would have only
5 had the ability to look at the spreadsheets they provided,
6 plus the inadequate invoices they provided, and cross7 check that with -- attempt to cross-check that with the
8 quarterly reports, which was ineffective.
And this was
9 our effort to again move forward with some kind of payment
10 to show cooperation.
THE COURT:
11
Let's stop here and take our morning
12 recess.
13
(The morning recess was taken.)
14
THE COURT OFFICER:
Court's in session.
You may
15 be seated.
16 BY MR. MOSS:
17 Q
Ms. Bresson, I think before the break we were
18 discussing Exhibit 25.
Do you have that?
19 A
Yes.
20 Q
And again, just to orient ourselves, we were talking
21 about the payment of the Fourth Quarter 2002 to the Fourth
81
1 Quarter 2003 bills here.
2
Do you see that?
And these were bills that were part of the Burns
3 review; is that correct?
4 A
I believe so, yes.
5 Q
And you as the account holder signed off on these
6 bills and put them in the pipeline for payment, correct?
7 A
I signed off on the cover sheet that would then move
8 up to Bob Burns and then up the chain, yes.
9 Q
And you signed off on these bills without reviewing
10 the spreadsheets of the bills themselves, correct?
11 A
I was not part of the audit.
12 Q
So that is correct?
13 A
That's correct.
14 Q
And at this time there were, with respect to the
It was not part of the audit.
15 chemical and asbestos bills, no invoices from defense
16 counsel, correct?
17 A
Correct.
The only thing that defense counsel
18 provided were spreadsheets with dollar amounts and totals
19 and then a second page that had a title of -- "report" was
20 in the title, and that would have some law firm names
21 referenced on it with some other subtotals, and the cross-
82
1 check would be between those two documents.
2 Q
And with respect to the Photoresist bills, all you
3 had were what you described as inadequate defense counsel
4 bills, correct?
5 A
We had similar spreadsheets like we did on asbestos
6 and chemical, and we had defense bills that were
7 inadequate.
And then they would also have -- if they had
8 expenses, they would have receipts attached to the back,
9 sometimes receipts attached to the back of attorney law
10 firm bills for those expenses.
11 Q
And yet for these bills referenced here, you still
12 signed off on them, correct?
13 A
Excuse me?
For which bills are we talking about?
14 Q
For all of the bills that were incurred prior to you
15 taking over the account for Photoresist, asbestos, and
16 chemical, you signed off on all of those bills that had
17 been reviewed for payment?
18 A
For the Fourth Quarter 2002, First Quarter 2003,
19 Second Quarter 2003, Third Quarter 2003, and Fourth
20 Quarter 2003, with asbestos and chemical, which were the
21 subject of the Burns audit review, my manager had
83
1 conducted an audit review and advised me that the bills,
2 in essence, the spreadsheets, were valid and I should
3 process the payments.
So I had the payment forms
4 completed and then the bills would then go up to my
5 manager, Bob Burns.
6 Q
And they were paid?
7 A
I don't recall if these specific quarters were paid
8 or not.
9 Q
Turn to Exhibit 31, please.
Have you seen this email
10 before, Ms. Bresson?
11 A
It looks familiar.
12 Q
It's an email from Mr. Peters to you, dated June 29,
13 2004?
14 A
Yes, correct.
15 Q
And in this email he references a receipt around
16 6/21/04 of approximately $2.3 million?
17 A
Yes.
It's a check dated 6/21/04 in the amount of
18 $2,282,483.24.
19 Q
And that's a payment that you had authorized as the
20 account handler?
21 A
During this period of time, yes.
84
1 Q
And that was for past asbestos and chemical billings?
2 A
I can't tell from the email, but I'm assuming, based
3 upon how it's phrased and the earlier email, that, yes, it
4 would have been for bills prior to June 29th of '04.
5 Q
Mr. Peterson in this email requests some information
6 from you, correct?
7 A
He's raised questions in the email.
8 Q
And did you respond to any of these questions?
9 A
I don't recall a specific email response.
10 know if I did.
I don't
We certainly had communications prior and
11 post to June 29, '04.
He's asked for whether he's going
12 to receive any other reimbursement on Premise cases.
13 Q
And did you respond to him?
14 A
I don't recall a specific conversation or a specific
15 email at this time.
16 Q
And bullet number two or number two says he's looking
17 for that formal position on Premises cases.
Did you ever
18 provide a formal position on the Premises cases?
19 A
We talked about the need for the Premise information.
20 This position, I believe he is referring to our overall
21 position, which I think I previously stated I did not
85
1 issue before I left.
However, the position was
2 communicated on numerous conversations with Joe Peters
3 that it was important for Resolute to understand and
4 obtain information regarding what sites it had paid on and
5 the amounts that they had paid on these sites and the
6 timing of when those sites had actually come into
7 existence when Celanese began to manufacture products.
Celanese was a chemical manufacturing company,
8
9 and they were tendering claims throughout the country, so
10 the policies were written such that there were per
11 occurrence limits, and each occurrence could be -- each
12 site could be treated as a separate occurrence.
So it was
13 essential to obtain information from Celanese because that
14 information was omitted from their quarterly reports.
15 clearly wasn't available on other information.
16 wouldn't be available in the billing.
17 there.
18 Q
It
It
It wouldn't be in
So we needed that information.
Well, that information wasn't part of your quarterly
19 billing reports, correct?
20 A
Pardon?
21 Q
That type of information isn't contained in lawyer
86
1 bills, correct?
2 A
I just said it wouldn't be in there.
3 Q
Right.
And it was important for Resolute to have
4 that information?
5 A
It was important for us to understand what sites they
6 had paid on and what sites they had not paid on.
And up
7 to this point, during my tenure on the account, they had
8 not tendered any settlement to us.
They had not tendered
9 -- they had not come to Resolute and said we have settled
10 five claims or ten claims at the Texas site for $300,000.
11
However, they had fully paid a number of
12 settlements.
We were unaware of that, until they started
13 providing some information on the spreadsheets giving us
14 some settlement information.
But they never tendered or
15 came back to Resolute saying we want reimbursement for
16 what we paid, we want you to reimburse us for your share
17 of the settlement that we funded.
18 Q
Could you turn to Exhibit 22, Ms. Bresson.
19 A
Sure.
20 Q
Do you recognize this document?
21 A
Yes, I do.
87
1 Q
And is this an email that you received from Donna
2 Hurt at Celanese?
3 A
Yes.
4 Q
And Donna Hurt in this email dated February 25, 2004,
5 approximately a month or so after you took over the
6 account, is providing you with settlement information,
7 correct?
8 A
She says, "As regards to the asbestos cases, while
9 Enviro-Tox has compiled a list of indemnity payments, it
10 has not, as was done above, conducted a breakdown of the
11 settlements in which the policies of Kemper or C.U. are
12 potentially triggered."
13 Q
But she's providing you with settlement information
14 for chemical and asbestos.
15 A
She provided a spreadsheet, is my recollection, of
16 cases that were settled by Celanese.
She did not provide
17 any information indicating when Celanese was going to then
18 ask Resolute to reimburse them.
And the rationale for --
19 I couldn't understand the rationale for why an insured,
20 who was as sophisticated as Celanese is, would not ask
21 their carrier to pay, reimburse them for indemnity that
88
1 they've paid.
They've come to us asking us to pay millions and
2
3 millions of dollars on defense bills, but they never came
4 to us and said, hey, we want you to reimburse us for your
5 share of the losses, the settlements.
Now, the rationale that -- when I raised this
6
7 issue with Joe Peters and Donna Hurt on numerous times,
8 Joe Peter indicated --
MR. MOSS:
9
Your Honor, objection.
The witness
10 has gone way beyond what the question asked for.
THE COURT:
11
Well, why don't you restate your
12 question.
13 BY MR. MOSS:
14 Q
Ms. Bresson, in this February '04, Exhibit 22,
15 Celanese is providing you indemnity information, correct?
16 A
They provided limited indemnity information that they
17 paid.
18 Q
It wasn't sufficient enough for you, but they're
19 providing indemnity information to you, correct?
20 A
They provided some information, yes.
21 Q
And three questions ago you answered they never
89
1 provided indemnity information.
2 A
I think I clarified that and said that they --
3 Q
So you're now qualifying your answer.
4
MR. O'CONNOR:
5
THE COURT:
Objection, your Honor.
Had you finished your answer to that
6 question?
7
THE WITNESS:
8
THE COURT:
9
THE WITNESS:
10 A
No, I hadn't.
Go ahead.
Thank you.
I believe I qualified it and said that they had not
11 provided indemnify -- they first said they had not made
12 any settlements, and then they said we have made some
13 settlements, nominal amounts.
And then they came back and
14 they said at a later date, oh, we've made more
15 settlements.
And during that progression they provided
16 spreadsheets that showed the progression of the
17 settlements in fact to paying over $3 million in
18 settlements, none of which were ever tendered or asked by
19 Resolute to reimburse our share.
20 Q
Well, are you saying that you had discussions with
21 Celanese before February '04, where they had provided you
90
1 indemnity information?
2 A
No, I'm saying that the prior handler had requested
3 information with regard to what settlements they had made.
4 It was clear that that had been a request of Resolute
5 prior to my involvement.
It should have been a request
6 all along during the time that Bob Burns and Gene Waymon
7 had the account.
8 Q
And this February 25, 2004, email provides settlement
9 information, correct?
10 A
It provides limited settlement information, yes.
11 Q
It just wasn't good enough for you.
12 A
It was adequate by any standard.
13 Q
But particularly your standard, correct?
14 A
I think my standard is a reasonable, average adjuster
15 standard.
16 Q
Now, in this email you are informed that there have
17 been on settlements on Photoresist, correct?
No
18 Photoresist settlements?
19 A
In this email?
20 Q
Yes.
21 A
I need to review it.
Can you point me to the section
91
1 that you're referring to, please?
I'm sorry.
2
First line, "No indemnity has been
3 paid in connection with the Photoresist cases."
4 Q
When was the first settlement of Photoresist?
Do you
5 remember?
6 A
I don't remember when their first settlement was.
7 According to Donna Post, February 2004.
8 Q
And with respect to the settlements for chemical and
9 asbestos, there are two spreadsheets attached to it
10 listing what those settlements are, correct?
11 A
There's two small Excel documents attached to this
12 email, yes.
13 Q
And according to the email, Ms. Hurt at Celanese is
14 representing to you that these are the chemical and
15 asbestos settlements that have been reached to date.
16 A
Yes.
She indicates that these attachments reflect
17 those settlements.
18 Q
She also informs you that, "To Enviro-Tox's
19 knowledge, no indemnity payments have been made by
20 Celanese for any asbestos cases, correct?
21 A
That's the last sentence in one of her paragraphs,
92
1 yes.
2 Q
In the last paragraph of this email she asks you for
3 some clarification regarding Berkshire Hathaway's
4 involvement, if any, in this account.
Do you see that?
5 A
Yes.
Last sentence in that second to last paragraph.
6 Q
Did you ever provide any explanation regarding what
7 Berkshire Hathaway's involvement was in this account?
8 A
I did not provide it in writing.
I communicated to
9 her on a phone call that I did not have the specific
10 details of the corporate relationship between Berkshire
11 Hathaway and Resolute.
There was a very complicated
12 corporate history, and if she wanted it, she could speak
13 with my unit leader or she could call Tom Ryan.
14 Q
Ms. Bresson, would you please turn to Exhibit 215.
15 A
(The witness complied.)
16 Q
Do you recognize this exhibit?
17 A
This email looks familiar, generally.
18 Q
And are these emails that you receive in the regular
19 course of your work as the account representative for
20 Resolute?
21 A
It would be an email I received from Donna Hurt from
93
1 the Celanese account.
2 Q
And you have no reason not having received this
3 email, correct?
4 A
No, there's nothing that would indicate I didn't.
5 Q
And this is an email dated December 9, 2004.
And Ms.
6 Hurt is requesting the status of certain bills that are
7 sitting on Mr. Ryan's desk; is that right?
8 A
Yes.
She identifies two quarters' worth of bills
9 she's asking for.
10 Q
And the two quarters that she's asking for are Second
11 Quarter and Third Quarter 2004 Photoresist bills, correct?
12 A
That's correct.
13 Q
And these are bills that were for services rendered
14 by Celanese defense lawyers during the time in which you
15 were on the Celanese account, correct?
16 A
I can't tell from looking at this what period of time
17 the Second Quarter and the Third Quarter bills that we
18 received from Enviro-Tox represent.
In other words, there
19 was a lag time between the time bills were actually issued
20 by defense counsel and I got bills from -- or I got a
21 billing from Joe Peters.
I can't state with assurance
94
1 that all of the bills attached to the Second Quarter or
2 Third Quarter spreadsheet and billing requests from
3 Enviro-Tox were all for services during the time that I
4 was on the account.
5 Q
I have no way of knowing that.
Well, let me simplify it.
The Second Quarter and Third Quarter 2004
6
7 Photoresist invoices referenced here were invoices that
8 were received by you while the time you were on the
9 Celanese account.
In other words, they weren't those old
10 invoices that predated your employment with Resolute.
11 A
That's correct.
12 Q
And you would have been the person who would have
13 reviewed the Second and Third Quarter Photoresist
14 invoices, right?
15 A
I would have looked at the information that was
16 provided to me, yes.
17 Q
And the information that was provided would still be
18 that inadequate defense bills that you referred to earlier
19 for Photoresist, correct?
20 A
Yes.
21 lacking.
The bills continued to come in with information
You could not validate the bills against the
95
1 reports that had been received on the Photoresist claims
2 to get an understanding.
The bills were listing only lead
3 plaintiffs and there's multiple parties in the litigation.
4 So it was extremely difficult to, again, get an
5 understanding as to what I actually owed on the bill.
6 There were prorations made.
There were sometimes
7 deductions made by Joe Peters or someone at Enviro-Tox.
And I did not have any daily interaction with
8
9 any of these defense counsel.
10 Celanese.
That was precluded by
I could not talk to them.
I had no way of
11 knowing that the Kasowitz firm, who was charging three
12 hours for a deposition, whether they in fact attended that
13 deposition, because I was not
14 given the opportunity to have that regular interaction
15 that you would have on a typical account for asbestos,
16 chemical, or Photoresist.
This claim type has no bearing
17 on the type of interaction I would have.
18 Q
You were still approving these bills based upon this
19 inadequate information, correct, because in good faith you
20 wanted to pay them.
21 A
I was approving in good faith trying to get this
96
1 process moving, hoping that Celanese would then move
2 forward and provide information that we had been
3 requesting and we'd be able to move forward and have a
4 better working relationship.
5 Q
And that held true for the asbestos and chemical
6 bills that you continued to approve.
You were approving
7 those bills on inadequate information.
8 A
We approved bills, yes, in an effort to demonstrate
9 that we were working on our part.
We recognized again --
10 we clearly knew we owed something.
We wanted their help
11 in trying to figure out what that was.
12
What we were asking for was reasonable.
We
13 wanted to pay the reasonable and necessary costs that we
14 were obligated to under the policies.
But I couldn't
15 decipher what was reasonable and necessary,
And, in fact,
16 I made payments on these bills that were -- the bills that
17 were approved resulted in payments that were made and upon
18 audit we have clarified that we probably shouldn't have
19 paid because there were findings in audit that identified
20 exposure challenges.
21 Q
So you're approving bills that, based upon your
97
1 testimony earlier, you would never approve for the company
2 because there was inadequate information.
3 A
I was approving bills that in the normal course I
4 would not have approved but not for the difficult
5 situation that I found myself in, wherein I had a manager
6 who I was reporting to, at least the inception of 2004 -7 again, I don't know how long --
Bob Burns, who wanted me
8 to process the bills, who previously been a file handler
9 on this account, Bob Burns had an incentive for me to make
10 sure that I continued to process the bills.
Bob Burns would have been called into question
11
12 upon his handling of the account if I suddenly stopped
13 paying the bills.
When there was a question of what was
14 going on with the account after Bob Burns handled it, it
15 called into question what had been done previously on the
16 account, should those bills have been paid.
17 Q
So then what you're saying is anyone who paid a bill
18 prior to your handling of this account would be called
19 into question?
20 A
No.
What I'm saying is that if somebody previously
21 paid a bill just looking at an invoice and they never
98
1 bothered to ask for the supporting documentation, and
2 there's no indication that they're raising an issue, they
3 haven't had conversations, and when someone new is coming
4 on the account and looking at the account and they clearly
5 see that there's an issue, that where's the
6 substantiation, where's the proof that we really owe
7 however million have been paid, it does call into question
8 what that person was doing at the time.
9
My payments were based upon management, Bob
10 Burns, having conducted an audit of earlier bills and
11 instructing me to process those bills and my good-faith
12 effort to move forward because I knew we owed something.
13 I was trying to resolution for Celanese.
I was trying to
14 get resolution for my management and advise them that we
15 owed something, it's very difficult to tell, the bills are
16 inadequate, we need to get some money to Celanese.
17 They're owed something.
18 Q
So you were resistant, yet your boss was telling you
19 to go ahead and pay them?
Is that a fair statement?
20 A
Pardon?
21 Q
You didn't want to pay these bills, but your boss was
99
1 telling you to pay them, correct?
2 A
I -- what I've said is that --
3 Q
Yes or no, Ms. Bresson?
4 A
Can you repeat the question?
5 Q
You didn't want to pay these bills, but your boss was
6 telling you to pay them, correct?
7 A
Yes.
8 Q
And you've come to learn that Gene Waymon, who was
9 the original account holder on this account, paid every
10 bill during the four-plus years that he was on this
11 account, correct?
12 A
I don't know if he paid every bill.
He paid bills.
13 Q
And he paid the bills based upon the spreadsheets
14 that you've described as being inadequate.
15 A
I'm assuming that's what he did.
I didn't look at
16 every bill Gene paid.
17 Q
And he's paid bills on Photoresist based upon
18 inadequate defense counsel bills.
19
MR. O'CONNOR:
Objection, your Honor.
20 might be heard on this.
21
MR. MOSS:
I'll withdraw the question.
If I
100
1
THE COURT:
Okay.
2 BY MR. MOSS:
3 Q
And as of December 9th, you were paying bills based
4 upon this inadequate information, correct?
5 A
I paid bills based upon information that I received
6 in an effort to generate good faith and get Celanese some
7 money that they owed in anticipation that in return,
8 Celanese would be getting me the information we had been
9 requesting for a long time.
10 Q
And these bills that you were approving for payment
11 in 2004, were not only approved by you, but they were also
12 approved by your team leader, correct?
13 A
Well, if they were with Tom Ryan at some point, then,
14 yes, my team leader would have approved them to get to
15 Tom.
16 Q
And your team leader would either have been Bob Burns
17 or Bruce Perkins?
18 A
Correct.
19 Q
So you've got not only yourself approving these
20 bills, but you've got two people in management positions
21 that are approving these bills as well, correct?
101
1 A
Two people signing their name to the payment form,
2 correct.
3 Q
And how long did you continue to pay bills -- strike
4 the question.
5
Did there come a point in time where you stopped
6 approving bills for payment?
7 A
I believe so.
8 Q
And when was that?
9 A
I don't recall a specific date.
10 Q
Would it have been 2004?
11 A
I don't recall a specific date.
12 Q
And was that your decision?
13 A
Was what my decision?
14 Q
Were you the person who deciding to stop paying the
15 Celanese bills?
16 A
I was one of the persons, yes.
17 Q
You were in charge of the account.
18 A
I was a claim adjuster on an account that was being
19 reviewed by myself as well as my immediate supervisor and
20 management.
I had no authority to approve bills beyond a
21 certain level.
102
1 Q
Well, did you stop reviewing bills at some point in
2 time?
3 A
Did I stop reviewing bills?
No, I would look at the
4 bills that had come into the office, but if they were not
5 substantiated and we didn't have information -- we had
6 been waiting for months and months to get information from
7 Celanese.
They hadn't provided it.
We got to a point
8 where, you know, we had done great effort to try to
9 accommodate them and try to get the ball rolling.
Paying
10 them $2.2 million is not a small drop in the bucket.
11 That's a lot of money for anybody.
And they didn't
12 respond.
To simply not give me billing information and
13
14 then when the matter gets close to litigation give the
15 billing information, it doesn't make any sense.
Clearly,
16 Celanese, who is a multi-billion dollar company, had
17 received defense bills on asbestos and chemical all the
18 while.
Why they couldn't get them to me doesn't make
19 sense.
20 Q
Maybe they weren't asked for it, Ms. Bresson.
21 A
Joe Peters was asked for it --
103
THE COURT:
1
2 answer format.
Excuse me.
It's a question and
Put your question, please, counsel.
3 BY MR. MOSS:
4 Q
Isn't it true, Ms. Bresson, that you didn't ask for
5 the defense billings until after this lawsuit was filed?
6 A
That's inaccurate.
7 Q
And you're not aware of any email that you prepared
8 between January 2004, through the date of filing of this
9 lawsuit in April '06, where you have documented your
10 request for the actual defense bills, are you?
11 A
I don't recall if there's an email.
As I've said,
12 and I've testified, I handled hundreds of emails on this
13 account.
14
I had numerous conversations with Joe Peters and
15 Donna Hurt regarding the inadequacy of the spreadsheets
16 that had been forwarded to me and the fact that I would
17 like to process and get them some money, but I need some
18 cooperation from them and I need some bills.
And Donna
19 Hurt completely related and understood, in light of the
20 fact that Donna Hurt was previously at an insurance
21 company.
She had recently switched from an insurance
104
1 carrier position just like mine to her position at
2 Celanese.
She knew exactly what I needed.
It was run-of-
3 the-mill, it was standard, that when you have a bill and
4 you're asked to pay defense costs on a case, you would
5 expect to have the invoice attached.
6 unusual.
7 Q
It's nothing
It's nothing out of the ordinary.
Are you saying that you did ask Donna Hurt for the
8 bills in one of these conference calls that you had with
9 she and Joe Peters?
10 A
I'm saying that I communicated to Joe Peters.
11 not recall if Donna was on that call.
12 numerous calls.
13 looking for.
14 Q
I do
Donna Hurt was on
Collectively, they knew what I was
I wanted invoices and bills.
Well, did you express in words, I need the bills, or
15 are you just assuming that they're reading your mind in
16 terms of what you're looking for?
17 A
No.
As I believe I've previously stated, I asked Joe
18 Peters for the bills, and Joe's response to me was,
19 "Cristy, we haven't had to provide the bills for anybody
20 else in the past.
21 different?
Why do you need them?
What's changed?"
What's
105
I said, "Joe, I would not pay bills that are
1
2 received like this in the shape that these are."
I have no way to go to my management and say,
3
4 Bruce or Tom or Bob, I've looked at the bills, I agree
5 that this work was done, it's reasonable, it was necessary
6 for the defense of Celanese, and you know what, we owe
7 this.
I could not do that.
I could not do that off of a
8 spreadsheet or a listing attached to a spreadsheet.
It
9 made it very difficult.
10 Q
But you were doing that.
You were approving bills
11 based on the spreadsheets.
12 A
I was because I was trying to make a good-faith
13 effort to get Celanese some money.
As I previously
14 stated, we knew we owed them something.
THE COURT:
15
Excuse me.
You've answered the
16 question.
17
THE WITNESS:
18
THE COURT:
Thank you.
Next question.
19 BY MR. MOSS:
20 Q
Ms. Bresson, do you recall having a discussion with
21 Joe Peters where Joe Peters asked you, "Do you want copies
106
1 of the bills?" and your response was, "I'm not sure.
2 don't know yet.
I
I'll let you know"?
3 A
No, I don't.
4 Q
You don't recall any discussion like that?
5 A
No.
6 Q
A few moments ago you had indicated that you never
7 had a chance to speak with the defense attorneys who were
8 handling the defense of these cases; is that correct?
9 A
Yes, yes.
10 Q
Do you know who Hector Torres is?
11 A
The name does not ring a bell.
12 Q
You never spoke to Hector Torres?
13 A
The only time I spoke to Celanese defense counsel
14 that I can recall was during a conversation wherein
15 Enviro-Tox and Donna Hurt was present.
My communication
16 earlier was that I was never allowed to talk to defense
17 counsel directly.
I could never go to them on a daily
18 basis, get daily updates from defense counsel as to how
19 they're handling the case.
20 Q
So your testimony a few moments ago that you never
21 spoke with defense counsel is inaccurate; is that correct?
107
1
MR. O'CONNOR:
2
THE COURT:
Objection, your Honor.
Overruled.
3 A
Can you repeat the question?
4 Q
Your testimony a few moments ago that you never spoke
5 to defense counsel is inaccurate because you had had a
6 conversation with somebody, some defense counsel?
7 A
I'm clarifying it.
I had a conversation in the
8 presence of Celanese.
9 Q
And do you know who Mike Hutchins is?
10 A
I've heard the name.
I believe he was with --
11 Q
Did you ever speak to Mike Hutchins?
12 A
In the presence of Celanese.
13 Q
Did you ever speak to anyone else defending these
14 cases?
15 A
I believe -- I'm not sure if Vinny Carusso is with a
16 firm or with Enviro-Tox.
17 Q
I don't recall any other names.
How many discussions have you had?
How many
18 conference calls have you had that you can recall where
19 defense counsel participated in the calls with you and Ms.
20 Hurt and/or Mr. Peters where the status of the underlying
21 cases was discussed?
108
1 A
I believe there were a couple.
There was one with
2 Craig Gaines and then there was possibly an earlier one.
3 Very minimal.
4 Q
So we've gone from none to minimal, correct?
You've
5 had a few discussions with them.
6 A
I've had discussions within the presence of Celanese
7 because I was precluded from talking to them directly
8 myself.
9 Q
And did you review the Cost Share Agreements when you
10 joined Resolute to go over the Celanese account?
11 A
Yes, I did.
12 Q
And you were familiar with their terms?
Did you
13 become familiar with their terms?
14 A
Upon review of the agreement, I would reference the
15 document, yes.
16 Q
And you understood that if there was a problem with a
17 particular bill, you, as the Resolute adjuster, had thirty
18 days to object to that bill, correct?
19
MR. O'CONNOR:
20
THE COURT:
21
MR. O'CONNOR:
Objection.
What's your objection?
It characterizes the agreement.
109
1 It doesn't specify which agreement.
THE COURT:
2
Can you be more precise.
3 BY MR. MOSS:
4 Q
And you understood that with respect to payment of
5 asbestos and chemical cases under the Commercial Union
6 defense cost share agreement, you had thirty days to
7 object to an invoice, correct?
8 A
Under the agreement there was a time reference in the
9 agreement, yes.
10 Q
And isn't it true that for every quarterly invoice
11 you received after you took over the account, you never
12 objected to any of those bills, correct?
13 A
I never objected to the specific bills, no.
14 Q
And you did not pay any of those bills that you
15 received during the time that you were on this account
16 with thirty days of receipt of that bill.
17 A
I don't believe the turnaround was thirty days, no.
18 Q
In fact, how much time would have -- well, strike the
19 question.
20
And isn't it true that with the exception of the
21 First and Second Quarter 2004 bills, you didn't pay any
110
1 Celanese bills?
2 A
You'll have to be specific about which bills you're
3 talking about.
4 Q
Do you have in your mind what you paid and did not
5 pay?
6 A
No, I can't recall what I paid and did not pay.
7 Q
But at some point you recall stopping payment,
8 correct?
9 A
10 Q
At some point we did not pay, yes.
Did you ever seek to amend the Cost Share Agreement
11 to allow yourself more time to pay?
12 A
No, the agreement was never amended.
13 Q
And did you ever -- well, in that case you never
14 sought to amend the complaint to provide yourself with
15 more time between the time you received the bill and the
16 time you have to pay?
17 A
Can you repeat the question, please?
18 Q
And you never sought to amend the agreement to give
19 yourself more time to pay a bill?
20 A
I never sought to modify the agreement, to change
21 that term, no.
111
1 Q
Did Enviro-Tox ever complain to you that your
2 communications with them was poor?
3 A
Well, I think in some emails they have indicated
4 that, you know, you weren't available or we didn't get a
5 response or we had a meeting and had to reschedule, sure.
6 Q
And did Celanese ever communicate to you that your
7 communications were poor?
8 A
I don't recall if Celanese did.
9 Q
Do you recall ever speaking to Garry Allen
here he
10 indicated to you that your communication skills were poor?
11 A
There may have been an email, but I don't recall a
12 specific one.
13 Q
Do you ever recall meeting Garry Allen?
14 A
I met Garry Allen for the first time on the audit.
15 Q
How many times did you meet Garry Allen?
16 A
I met Garry Allen for the first time on the audit.
17 Q
Did you meet him face to face ever again?
18 A
I don't recall.
19 Q
How many times did you go to Texas to perform an
20 audit on these accounts -- on this account?
21 A
We did, I believe, two trips to Texas.
112
1 Q
Both of those trips were to Enviro-Tox's offices?
2 A
Enviro-Tox's locations, yes.
3 Q
And you don't recall having a discussion with Garry
4 Allen who told you your communications were poor?
5 A
As I said, I had a conversation with Garry Allen
6 after -- or during the first audit.
I don't recall if I
7 spoke to him on the second audit or not.
Joe Peters was
8 certainly available on both.
9 Q
Would you please turn to Exhibit 35, Ms. Bresson.
Do
10 you recognize this document?
11 A
It looks familiar as an email.
12 Q
And it's an email dated October 1, 2004?
13 A
Yes, it is.
14 Q
And in this email, Celanese is reporting to you that
15 they had settled the California Photoresist cases for
16 $50,000, correct?
17 A
Correct.
18 Q
And this would be an example of Celanese providing
19 you with indemnity information, correct?
20 A
This is an example of Celanese providing us with
21 settlement information.
This is not a request for
113
1 indemnification from Resolute.
2 Q
Right.
But they're providing you settlement or
3 indemnity information.
They're keeping you to date with
4 what's going on, correct?
5 A
On a global level, yes.
6 Q
And in this email, Celanese, through Joe Peters, also
7 indicates that they will -- or indicates that with the
8 exception of the Photoresist settlement, there were no
9 other product liability settlements, correct, for this
10 year?
11 A
Yes, he indicates that.
12 Q
And again, Mr. Peters is keeping you, the account
13 handler at Resolute, informed on what's going on with the
14 underlying cases.
15 A
Partially, yes.
16 Q
Now, if you would turn to Exhibit 40, please.
17 A
Okay.
18 Q
Do you recognize this document, Ms. Bresson?
19 A
It looks familiar.
20 Q
This is an email from you to your team leader, Bruce
21 Perkins, dated December 28, 2004; is that correct?
114
1 A
That's correct.
2 Q
And you're informing Mr. Perkins at this time that
3 the indemnity pay to day by Celanese is minimal.
Do you
4 see that?
5 A
I've indicated "is believed that the indemnity paid
6 to date by Celanese is minimal."
7 Q
And at this point had you completed your loss runs
8 that we talked about earlier this morning that you had to
9 do internally?
10 A
I don't recall if we had obtained them at this time.
11 Q
Had you requested them?
12 A
I believe earlier we talked about the request from
13 Mr. Burns loss runs.
14 Q
Well, at least as of December 28, 2004, based upon
15 the information you had, there were still limits of
16 liability available under the C.U. policies to pay product
17 liability claims, correct?
18 A
I don't necessarily know that until I have
19 information regarding the overall aggregate or impairment
20 of the policy.
There could have been previously paid
21 claims on the policies.
115
1 Q
When you left Resolute in September 2007, all
2 policies were still in place, correct?
3 A
You'd have to clarify.
4 Q
Well, no policy had exhausted and run out of its
5 limits, had it?
6 A
Not that I'm aware, but I didn't see a loss run.
7 Q
And you would be the person at Resolute who would
8 know whether a policy is exhausted or not because that's
9 part of your job as the claims person.
10 A
I would be one of the people that would seek that
11 information.
12 Q
And so with respect to those policies, there is, as
13 you know, a duty to defend that goes with those policies,
14 correct?
15 A
There is the duty to defend.
16 Q
So through September 2007, there is no reason why you
17 should not have been paying defense costs based upon
18 alleged exhaustion of the policies, correct?
19
MR. O'CONNOR:
20
THE COURT:
21
MR. MOSS:
Objection.
Alleged by whom?
Alleged by whom?
Alleged by Resolute.
116
THE COURT:
1
2 A
You may answer.
Can you repeat the question, please?
3 BY MR. MOSS:
4 Q
By the time that you left in September '07, no
5 policies had exhausted, correct?
6 A
None that I was aware.
7 Q
Okay.
So there was a defense obligation under all of
8 those policies, correct?
MR. O'CONNOR:
9
THE COURT:
10
Objection.
I'll allow it as to Ms. Bresson's
11 understanding at the time she left as to that matter.
12 A
There's a defense obligation as long as they're
13 limits.
There's different limits on the policies, and
14 depending upon what limit you're talking about, the
15 defense obligation would continue.
16 Q
So when you left Resolute, as far as you knew there
17 was still a defense obligation under the policies,
18 correct?
19
MR. O'CONNOR:
20
THE COURT:
21 BY MR. MOSS:
Objection.
So stated.
Sustained.
117
1 Q
At the time that you left, it was your belief that
2 there was still a defense obligation under the Commercial
3 Union policies.
4
MR. O'CONNOR:
5
THE COURT:
Objection.
Sustained.
6 BY MR. MOSS:
7 Q
Was it your understanding, Ms. Bresson, that there
8 was a defense obligation under the Commercial Union
9 policies in September when you left?
10
MR. O'CONNOR:
11
THE COURT:
12 A
13
Objection.
No, you may answer.
You may answer.
Can you repeat, please?
MR. O'CONNOR:
Your Honor, may we be heard on
14 this very briefly?
15
THE COURT:
You may.
16 SIDEBAR CONFERENCE:
17
MR. O'CONNOR:
The question was, was there
18 defense coverage available under the policy.
19 an objection to that question.
I don't have
He's looking for what
20 could be interpreted as a conclusion as to whether or not
21 there is, in fact, a defense obligation with respect to
118
1 some specific claims, which I think is not a proper
2 question.
3
THE COURT:
Well, the question, as I understand
4 it, is -- I think it's already been answered, but the
5 question is, was she aware of any -- was she aware that
6 the indemnity limits had been reached and therefore there
7 was no further duty to defend.
8
Is that the question?
9
MR. MOSS:
10
THE COURT:
Yes, your Honor.
I think that has been asked and
11 answered.
12
Mr. Moss, your estimate was an hour and a half
13 for her, you're now at almost two and a half hours.
Given
14 that she's probably provided much of the rehab that cross15 examination that Mr. O'Connor intends to ask in her
16 lengthy and volunteered and non-responsive responses, I
17 assume that you're not going to need to take as much time
18 as you estimate.
19
MR. O'CONNOR:
She is eliminating some of my
20 questions.
21
THE COURT:
I would think so.
119
1
How much more time do you have for her?
2
MR. MOSS:
3
MR. MIGUEL:
Fifteen minutes, your Honor.
Your Honor, we're confident that
4 even if we exceed with this, we're still going to meet our
5 limits with the rest of the witnesses..
THE COURT:
6
Oh, I'm confident of that, too.
7 END OF SIDEBAR CONFERENCE.
8 BY MR. MOSS:
9 Q
Ms. Bresson, would you please turn to Exhibit 19.
10 A
I have it.
11 Q
Have you seen this exhibit before?
12 A
It does not look familiar.
13 Q
It references the production of some exposure
14 information from Enviro-Tox to Brooke Green, your
15 predecessor.
Do you see that?
16 A
I do, yes.
17 Q
During your review of the file when you took over
18 this account, did you come across this information?
19 A
This email?
20 Q
No, the exposure information that's referenced in the
21 email?
120
1 A
I don't recall specifically the document that he's
2 referencing here.
3 Q
And earlier today you testified that exposure
4 information is something that Celanese had not provided to
5 you; is that correct?
6 A
Celanese had not provided exposure information, yes.
7 Q
And going back to Exhibit 22, please.
8 A
Hmm-hmm.
9 Q
You had testified earlier today that the indemnity or
10 settlement information was inadequate, correct, that was
11 provided?
12 A
Yes.
13 Q
And Exhibit 22, Celanese provides you with indemnity
14 information, correct?
15 A
Can you point to where in this exhibit you're
16 looking?
17 Q
Well, the subject is "Indemnity Paid."
Are you on
18 Exhibit 22?
19 A
Oh, okay.
Can you rephrase the question, please?
20 Q
This is an example of Celanese providing you with
21 indemnity information; is it not?
121
1 A
They did provide some information here, yes.
2 Q
And turning to Exhibit 35, please.
3 A
(The witness complied.)
4 Q
This is an email dated October 7, 2004.
Again, this
5 is an example of Celanese or Enviro-Tox providing you with
6 indemnity information, correct?
7 A
Settlement information they did provide regarding one
8 Photoresist case.
9 Q
Would you turn to Exhibit 41, please.
10 A
(The witness complied.)
11 Q
Again, this another example of Celanese providing you
12 with indemnity information, correct?
13 A
They did provide some indemnity as to asbestos, it
14 appears, in cases in 2004.
15 Q
And at that point in time, other than that one
16 Photoresist settlement that we spoke about earlier, there
17 were no other Photoresist settlements, correct?
18 A
None that they reported.
19 Q
And going back to the -- strike that.
20
MR. MOSS:
21 BY MR. MOSS:
I'm almost done, your Honor.
122
1 Q
Ms. Bresson, would you please turn to Exhibit 48.
2 A
(The witness complied.)
3 Q
Do you recognize this document?
4 A
Yes, I do.
5 Q
Is this an email prepared by you?
6 A
Yes, it is.
7 Q
And it's dated May 26, 2005?
8 A
Yes, it is.
9 Q
And according to your email, it says that Celanese is
10 alleging approximately $10 million that is still due for
11 chemical, asbestos, and Photoresist cases; is that
12 correct?
Paragraph 4?
13 A
Can you -- exhibit again?
14 Q
Exhibit 48.
15 A
Okay.
16 Q
Can you restate your question?
17 Q
Sure.
18 A
Correct.
19 Q
And in here you're reporting to Greg Gaines that
This is an email prepared by you, correct?
20 total outstanding balance for all claim types,
21 Photoresist, asbestos, and chemical, and there are some
123
1 numbers that total approximately $10 million; is that
2 correct?
3 A
I don't have a calculator, but there's a dollar
4 amount to Commercial Union and there's a dollar amount to
5 Kemper.
6 Q
And what's the dollar amount to Commercial Union?
7 A
$5,828,207.70.
8 Q
And then going back to Exhibit 205 that we've talked
9 about earlier, which is an email from you to Larry Poling.
10 This is one of the first exhibits we've talked about
11 today.
12 A
Okay.
13 Q
Back in January of '04, there was approximately $6
14 million outstanding.
15 A
$6,080,677.27.
16 Q
So for the year and a half that you had this account,
17 the amount outstanding as alleged by Celanese was reduced
18 from $6,080,000 to $5,828,000, correct?
19
MR. O'CONNOR:
20
THE COURT:
21
MR. O'CONNOR:
Objection, your Honor.
What's your objection?
He's done the math wrong.
124
1
MR. MOSS:
2
THE COURT:
I don't have a calculator.
It looks like Kemper and C.U. in
3 Exhibit 205?
4
MR. MOSS:
I'll rephrase it, your Honor.
5 BY MR. MOSS:
6 Q
The total owed, Ms. Bresson, that you were informed
7 of in January of 2004, was 6,080,000 for both Kemper and
8 C.U., correct?
9 A
10 Q
Yes, that's correct.
And then returning to Exhibit 48, the total owed for
11 Kemper and C.U. is approximately $10 million?
12 A
Again, I don't have a calculator.
It appears roughly
13 to be in that range.
14 Q
So during the year and a half that you had this
15 account, there's actually $4 million more in defense costs
16 that remain unreimbursed by Resolute.
17 A
Well, for bills that had come in, yes, that had not
18 included a proper documentation, no invoices, to
19 substantiate and allow me to pay.
20 Q
Did you know Mr. Ryan before joining Resolute?
21 A
Yes, I did.
125
1 Q
How did you know him?
2 A
I worked with Mr. Ryan at a former employer.
3 Q
And that was Riverstone up in New Hampshire?
4 A
Yes, it is.
5 Q
And how long have you known Mr. Ryan?
6 A
Since my employment at Riverstone.
7 Q
When was that?
8 A
Approximately 2000, I believe.
From 2000 to 2003,
9 employment just prior to my employment at Resolute.
10 Q
So you've worked with him for about six years out of
11 the last eight years?
12 A
Approximately.
13 Q
And he recruited you to come to Riverstone, correct?
14 A
What do you mean by "recruited"?
15 Q
Did he ask you to leave Riverstone and come to
16 Resolute?
17 A
I forwarded my resume to Tom, among other employers,
18 as I was seeking another job.
He asked me to come down
19 for an interview, yeah.
20
MR. MOSS:
21 nothing further.
Your Honor, at this time we have
126
1
There are two exhibits that we move to have
2 admitted as Exhibit 205 and Exhibit 211, with the caveat
3 that, I believe it's Exhibit 211, we agree to redact
4 partially before it goes into evidence.
5
THE COURT:
6
MR. O'CONNOR:
7 to 205, your Honor.
8
THE COURT:
Okay.
Mr. O'Connor?
Your Honor, defendant's objection
Hearsay objection to part of it.
Is this being offered as notice to
9 Resolute?
10
MR. MOSS:
Yes, your Honor.
11
THE COURT:
12
MR. O'CONNOR:
For that purpose, 205 may come in.
Your Honor, if I may, the top
13 part of it isn't -14
MR. MOSS:
We will redact the top part of it.
15
MR. O'CONNOR:
Then I have no objection, your
16 Honor.
17
THE COURT:
Okay.
18
MR. O'CONNOR:
19
THE COURT:
20
MR. O'CONNOR:
21
(Email 1/12/04 to Ms. Bresson from Mr. Poling,
Subject to your ruling.
And the same to -Same as '11.
127
1 was received into evidence and marked as Exhibit No. 205.)
(Email chain 10/12/04-10/15/04 among Ms.
2
3 Bresson, Mr. Peters and Ms. Hurt was received into
4 evidence and marked as Exhibit No. 211.)
CROSS-EXAMINATION
5
6 BY MR. O'CONNOR:
7 Q
Ms. Bresson, good afternoon.
8 A
Good afternoon.
9 Q
Mr. Moss asked you some basic questions regarding
10 where you worked and where you worked previously.
You
11 indicated you are working now for Fireman's Fund?
12 A
Yes, that's correct.
13 Q
How long have you been in the insurance claims
14 business?
15 A
Since -- well, it started out at Travelers in '85 in
16 Risk Management and then moved over to the law department.
17 So I've been in insurance for over twenty years.
18 Q
What's your educational background?
19 A
I received my finance degree, B.S. finance degree,
20 from UConn in Connecticut.
I received my law degree from
21 Western New England College in Massachusetts.
That's the
128
1 extent of my educational background.
2 Q
And how long did you work for the Travelers for?
3 A
About twelve or thirteen years.
4 Q
Doing what sort of work?
5 A
Initially I was in Risk Management and then I moved
6 over to the Law Department.
7 Department.
I worked in Corporate Law
And then my last position in Travelers was
8 managing asbestos -- I'm sorry, managing environmental
9 litigation, much like this.
10 Q
What do you mean "environmental litigation"?
11 A
Environmental litigation includes asbestos claims,
12 like we're talking about with Celanese, chemical claims,
13 hazardous waste claims, long tail claims, claims that have
14 happened over a long period of time.
15 Q
And long tail claims, what do you mean by that?
16 A
Claims that have happened or the exposure has
17 occurred over a number of years.
18 Q
And the claims that are asserted against Celanese in
19 what we call the Photoresist litigation, the asbestos and
20 chemical litigation, are those examples of what you mean
21 by long tail claims?
129
1 A
Yes.
The claims that I dealt with on behalf of
2 Celanese were run-of-the-mill, average asbestos, chemical,
3 photoresist claims that you see every day in this type of
4 insurance industry.
5 Q
After the Travelers, where did you go to work?
6 A
After the Travelers I moved to work for Fireman's
7 Fund in California.
It's just where their home office is.
8 Q
And what did you do there?
9 A
At that time I worked in their reinsurance department
10 handling the same kind of claims that I handle now and
11 handled at the end when I worked at Travelers in their
12 environmental department.
So handling those same
13 environmental-type claims as well as some other general
14 liability claims.
But it was in the reinsurance side of
15 the business, not the direct side, which is where we are
16 now.
17 Q
And the reinsurance side is where the insurance
18 company, after it's paid -- seeks money back from its
19 reinsureds?
20 A
That's correct.
21 Q
And for how long were you out in California at
130
1 Fireman's Fund?
2 A
I think between three and four years.
3 Q
And where did you go to work then?
4 A
Then I relocated to New Hampshire to work at
5 Riverstone Resources.
6 Q
And how long were you at Riverstone for?
7 A
Three to four years.
8 Q
And what type of work did you do at Riverstone?
9 A
At Riverstone I went back to the direct side, so I
10 was again handling all the asbestos, chemical type claims,
11 but for the direct side of the business.
12 Q
So you're still doing latent injury or latent type
13 claims?
14 A
That's correct.
15 Q
I think you called them long tail type claims?
16 A
That's correct.
17 Q
How long were you up at Riverstone in New Hampshire?
18 A
I think about three years.
19 Q
Why were you looking for a new job in approximately
20 2003?
21 A
I wasn't happy with my employment.
I wanted to seek
131
1 alternative job opportunities where there might be more
2 for me to do.
I felt like all of my talents weren't being
3 utilized.
4 Q
And when you came to Resolute, what type of accounts
5 were you assigned?
6 A
The same or similar type of accounts that I handled
7 at Riverstone, Travelers, and at Fireman's Fund, only on
8 the direct side.
9 Q
You mentioned a few moments ago that the Celanese
10 underlying claims, the asbestos and chemical claims and
11 photoresist claims were run-of-the-mill.
What did you
12 mean by that?
13 A
There was nothing unique about Celanese.
Celanese is
14 a typical defendant in asbestos and chemical, photoresist
15 litigation.
They're no different than any other defendant
16 that I have worked with for twenty years.
And their
17 involvement in litigation, their participation as a
18 defendant was not unique in any way.
19 Q
And over the course of your twenty years handling
20 those types of claims, did you develop an understanding of
21 about what sorts of billing information typically came in
132
1 for the defense of these claims?
2 A
Yes, I did.
3 Q
And what is that?
4 A
In every other situation I've been involved with,
5 when I am working for an insurance company and we are
6 defending a litigation, I have regular, interactive
7 communication contact on a regular basis with the defense
8 firms that either the insurance company has hired or the
9 group of insurance companies that are defending on behalf
10 of that insured.
11
You would on a regular basis have communications
12 with those defense firms regarding the strategy, the
13 representation, how the cases are going, what things are
14 settling for.
They would be utilizing my expertise, my
15 company's expertise, because we are involved with hundreds
16 of cases that are going to trial and involving defense
17 firms.
So we have expertise in areas that sometimes
18 insureds don't have because an insured is sort of in an
19 isolated bubble because it's just their world in the
20 asbestos litigation.
They don't necessarily themselves
21 have an awareness of what's going on outside with other
133
1 defendants.
But as an insurance representative and an
2
3 adjuster, I would have regular communications with defense
4 counsel.
I would be involved in, oftentimes retaining
5 them directly.
6 with them.
I would be involved with negotiating rates
I'd be involved in receiving and reviewing
7 their bills on any accounts that they were working on
8 cases for me and forwarding those invoices on for payment.
9 Q
And in terms of the bills themselves, what typically
10 would you receive on these types of accounts?
11 A
You would receive a multi-page document that would
12 have usually a cover page or a summary page explaining the
13 time period that the firm was seeking reimbursement for
14 and the total and perhaps that carrier share.
15
Underneath that page you would have the detail
16 of the bills.
You would have time line entries by the
17 firm, by each attorney that handled the case for that
18 period of time.
You know, it would depend.
19 you could have monthly billings.
20 quarterly billings.
Oftentimes
Sometimes you could have
Sometimes you might have accounts
21 less frequent than that.
134
But generally speaking, I have involvement with
1
2 monthly billings or quarterly billing accounts.
You would
3 see the attorney who did the work on a given day, so you
4 would see a date.
You would see a description of the task
5 that the attorney did so that you would be able to
6 understand what the attorney did, when they did it, why
7 they did it, where it was, and how it related to your
8 case.
You would see the name of the case or the plaintiff
9 on the bill.
You would see the hourly rate.
10 see the proration hourly charge.
11 totals.
You would
You'd see summary
You might see the proration between the carriers
12 on the bill.
13
You would see expenses, like copy costs or if
14 they had to hire a consultant or a vendor as part of
15 litigation.
You would see that on expense section.
16 would see attached to that receipts.
You
If they went out to
17 lunch, if they were traveling for you, if they had to take
18 a deposition and they took a flight, you'd see the airline
19 ticket.
20
It was all a way for you to look at the bill and
21 know that, based upon your involvement, your daily
135
1 interaction, your weekly interaction with that defense
2 firm in understanding the account, you would know when
3 looking at the bill, oh, I know that Attorney Smith
4 attended that deposition on June 3rd and he's charging me
5 seven hours for that task.
And I would be able to know,
6 based upon my experience and my involvement on the case,
7 that that was a reasonable and necessary charge for that
8 defense firm to charge a bill, Fireman's Fund or Resolute
9 or whoever it was.
10 Q
So you have information from which you could draw
11 judgments about whether a bill should be paid or not paid.
12 A
Absolutely.
13 Q
You testified about the nature of the asbestos and
14 chemical billings that were submitted to Resolute by
15 Celanese in this case, correct?
16 A
Yes.
17 Q
And there were spreadsheets, correct?
18 A
They were Excel spreadsheets, yes.
19
MR. O'CONNOR:
May I approach the witness, your
20 Honor?
21
THE COURT:
You may.
136
1 BY MR. O'CONNOR:
2 Q
Ms. Bresson, I'm going to show you a document that's
3 been marked as Exhibit No. 340.
The first question to you
4 is do you recognize that document?
5 A
I do.
6 Q
What is it?
7 A
It's an email communication from Joe Peters to
8 myself, dated April 12, 2004, regarding First Quarter 2004
9 reports.
10 Q
Who was Mr. Peters?
11 A
Joe Peters is one of the principals at Enviro-Tox,
12 the third party or consultant that is administrating the
13 claims on behalf of Celanese.
14 Q
To your understanding, did Mr. Peters and Enviro-Tox
15 have some relationship or some role with respect to the
16 cost share agreements you talk about between Commercial
17 Union and Celanese?
18 A
I believe they're involved in negotiation.
19
MR. MOSS:
20
THE COURT:
Objection.
Foundation.
Leading.
Well, leading's not a problem.
21 you establish a little foundation?
Can
137
1 BY MR. O'CONNOR:
2 Q
During the course of your dealings with Celanese on
3 this account, what was Enviro-Tox's role on a day-to-day
4 basis?
5 A
Enviro-Tox would send me copies of new complaints
6 electronically.
They would send the spreadsheets
7 electronically or via C.D.
They would, as I stated,
8 coordinate with me and Donna Hurt in communications.
They
9 were the representative of Celanese in these
10 communications.
11 Q
And you've identified the cover email on this
12 document.
There are some documents attached to that.
Can
13 you tell me what those are?
14 A
The first document is an example of the spreadsheets
15 that I would typically receive labeled "C.U. Asbestos
16 Premise Report for First Quarter 2004."
17 Q
And what does this document represent?
18 A
This is what Celanese classified as their bill.
This
19 is what they provided me and said, "Okay, Cristy, now's
20 the time for you to pay."
An Excel spreadsheet with four
21 columns giving a claimant name; two columns referencing
138
1 Enviro-Tox or Celanese file numbers -- I don't recall, I
2 think they're Enviro-Tox numbers and a billed amount.
So there's only two columns on the spreadsheet
3
4 that identified claim-related information:
the amount
5 billed for that claimant and then the claimant name.
6 Q
Do you know whether those claimant names are
7 individual claimants or are they lead plaintiffs in cases?
8 A
I was advised by Joe Peters that they bill by lead
9 plaintiff.
So these are lead plaintiffs in the
10 litigation.
11 Q
Now, in your testimony about the billings you've
12 talked about two spreadsheets coming with the asbestos and
13 chemical billings.
And this is an asbestos billing,
14 correct?
15 A
Yes.
16 Q
You've talked about two spreadsheets being associated
17 with that billing.
Is the second spreadsheet also
18 contained in that exhibit?
19 A
Yes, it is.
It's a legal size spreadsheet that's
20 labeled "Commercial Union First Quarter 2004 Asbestos
21 Premises Report."
139
1 Q
And are these collection of document typical of the
2 billings that Commercial Union or Resolute received during
3 the course of your dealings with Celanese and Enviro-Tox
4 on these matters?
5
MR. MOSS:
6
THE COURT:
7
MR. MOSS:
8 Honor.
9
10
Objection to form.
Form as in?
It's got to be more descriptive, your
"Typical" is very vague.
THE COURT:
I'll allow it.
THE WITNESS:
You may answer.
Can you repeat it, please?
11 BY MR. O'CONNOR:
12 Q
This is a typical form of billing that you received
13 when you were working on this account?
14 A
15
Absolutely.
MR. O'CONNOR:
Your Honor, I'd like this
16 document admitted.
17
THE COURT:
18
MR. MOSS:
19
THE COURT:
Any objection, Mr. Moss?
Objection, your Honor.
It's hearsay.
Sidebar, please.
20 SIDEBAR CONFERENCE:
21
THE COURT:
May I see the document?
It's being
140
1 offered for the truth?
2
MR. O'CONNOR:
It's being offered as an example
3 of what they typically received.
4
THE COURT:
Do you object to it for that
5 purpose?
6
MR. MOSS:
7 this morning.
Yes, your Honor.
We just got this
It looks like there's an April 12th email
8 and then there was an April 15th letter.
I can't verify
9 whether this is what it purports to be.
10
MR. O'CONNOR:
11
THE COURT:
12
MR. O'CONNOR:
She just did that, your Honor.
Let me just take a moment.
Your Honor, that letter appears
13 inadvertently included in the big sequence.
14 make sense within the document.
It doesn't
I would be perfectly
15 content to take it out.
16
THE COURT:
Okay.
17
MR. O'CONNOR:
So this would come out?
Yes.
Ms. Bresson identified the
18 handwriting.
19
MR. MOSS:
The other issue, your Honor, this
20 report was provided with -- or this report was provided
21 with this email.
141
1
THE COURT:
Yes.
What are those?
They're two
2 forms.
3
MR. MOSS:
This does not include photoresist.
4 That's what this references.
5
MR. O'CONNOR:
6
MR. MOSS:
7
MR. O'CONNOR:
8
THE COURT:
No.
No, this here, letter.
We'll just take the letter out.
So is there a concern about whether
9 what's attached matches the letter?
10
MR. MOSS:
Yes.
I know the Bates sequence is --
11 I don't know what it is, your Honor.
12
MR. O'CONNOR:
Your Honor, it's in their
13 documents that they sent to us.
14
THE COURT:
Let me just ask a question.
She's
15 testified that this is typical of billing information she
16 received from Peters.
I'll allow it as an exemplar of
17 such billing information.
18 END OF SIDEBAR CONFERENCE:
19
THE COURT:
Exhibit 340, ladies and gentlemen,
20 will be admitted as an exemplar of billing information
21 which Resolute received from Enviro-Tox.
142
MR. O'CONNOR:
1
Your Honor, I just swapped pages,
2 swapped copies, so the one the witness has is that page.
3
THE COURT:
Okay.
4
(Billing exemplar was received into evidence and
5 marked Exhibit No. 340.)
6 BY MR. O'CONNOR:
7 Q
Ms. Bresson, you testified that billings in this form
8 were -- you didn't consider them appropriate for payment,
9 correct?
10 A
That's correct.
11 Q
Why?
12 A
The spreadsheets did not provide me the information
13 needed to determine whether we owed what they said we
14 owed.
I had no ability to cross-reference or know the
15 charges they had listed on the top spreadsheet by lead
16 plaintiff were -17 Q
And by the "top spreadsheet," you're referring to the
18 regular size letter page that's entitled "C.U. Asbestos
19 Premises Report First Quarter 2004"?
20 A
Correct.
It's a six-page spreadsheet.
I had no way
21 of knowing that the claimants listed on the six pages of
143
1 the top spreadsheet related or how they related to the 632 page legal size subsequent report spreadsheet.
3 Q
This document?
4 A
That document.
I had no way to tie the two together.
5 The 63-page legal size document lists law firms by lead
6 plaintiff.
Now, I can tie the lead plaintiff back to the
7 six-page document, but I don't know what the law firms are
8 doing.
I just have a line entry that says "Law Office of
9 Jamie Capello," for example, an invoice date, a service
10 period, a total amount, a billed amount, a CGU prorated
11 amount, fees and expense, and then a CGU billed amount.
12
I have no idea what the Law Office of Jamie
13 Capello did to generate a bill on the San Juan Acosto
14 matter for $33.33.
15
I have 63 pages of this to go through to try to
16 figure out why am I being billed this and am I being
17 billed this accurately.
There was no invoice for me to
18 look at to even find out what the Law Office of Jamie
19 Capello did, who did it there, when they did it, did it
20 even apply to San Juan Acosta, was I even responsible for
21 San Juan Acosta claim?
144
1 Q
As far as you knew, the person who did the billing on
2 that could have been sitting on the beach.
3
MR. MOSS:
4
THE COURT:
Objection, your Honor.
Sustained.
5 BY MR. O'CONNOR:
6 Q
What would you have needed in order to fill that
7 information gap that you just described?
8 A
I would have needed the underlying invoice, the
9 actual invoice that Celanese would have received from the
10 Law Office of Jamie Capello.
I would have needed to know
11 what plaintiffs were billed for that bill, that generated
12 that bill.
I would need to know not just the lead
13 plaintiffs like they had been billing, but I'd need to
14 know if they're sub-plaintiffs within there, what
15 plaintiffs they're saying that I'm responsible for.
16 never broke it out for me.
They
They gave me summary
17 information and had me try to find the answer within 63
18 pages of a one-line spreadsheet, the one-line entry for
19 each law firm.
20 Q
And did you have discussions with Mr. Peters and
21 Donna Hurt regarding the inadequacy of this billing form?
145
1 A
I did.
I said it's impossible to pay a bill off of
2 this and be comfortable that I, in fact, owe it.
3 Q
And if you had been provided with that information at
4 the time, what would you have done?
5 A
If I had been provided with that information, I would
6 have looked at the bill and reviewed it for its reasonable
7 and necessary charges.
I would have gone to the file to
8 attempt to determine if these were claimants that we
9 actually owed money on.
And if we owed the bill, if we
10 owed the amount on these claimants, I would have processed
11 the bill.
12 Q
I would have paid them what we owed them.
On the first page of Exhibit 340, there's some
13 handwriting?
14 A
Yes, it is.
15 Q
Whose handwriting is that?
16 A
That's my handwriting.
17 Q
And is that a notation you made when you looked at
18 these materials?
19 A
Yes, it is.
20 Q
What does it say?
21 A
It says, "Backup for entire bill is attached to this
146
1 email.
2 Q
It is an access database."
Do you know if this bill was in fact processed and
3 paid?
4 A
I have no idea at this point.
5 Q
If it was processed and paid, why would that have
6 happened?
7 A
Can you rephrase?
8 Q
If it had been processed and paid, why would that
9 have happened?
10 A
If it was processed and paid, it was my effort to get
11 Celanese some money, because, as I've said, we owed them
12 something.
I didn't know what they owed and they were not
13 giving me the information in order for me to make that
14 reasonable determination.
So it was processed.
It was an
15 effort to get them some cash.
16 Q
And you say you're familiar with the cost-sharing
17 agreement governing payment of invoices of quarterly
18 billings from Celanese to Commercial Union?
19 A
Yes, I am.
20 Q
I show you what's been marked as Exhibit No. 5 and
21 ask
if you recognize this as that document.
147
1 A
Yes, it is.
2 Q
I'm going to refer you to paragraph 11 which appears
3 on page 7 and ask you to read that paragraph to the jury.
4 A
You said paragraph 11?
5 Q
Paragraph 11 on page 7.
6 A
Paragraph 11:
"On a quarterly basis, HCC will submit
7 all legal invoices to Commercial Union for those claims
8 listed on Exhibits B and C, accompanied by a cover letter
9 identifying all claims for which legal invoices are being
10 submitted, the total amount of defense cost for each
11 particular claim, a brief summary of the work performed
12 during the quarter and its purpose, and Commercial Union's
13 one-sixth share with HCC or its representative has
14 approved for payment.
Commercial Union will then, within
15 30 days, pay all uncontested charges and raise inquiries
16 about a disputed charge with particularity.
The parties
17 will then negotiate in good faith any disputed charges."
18 Q
Now, Mr. Moss asked you some questions about a 30-day
19 payment requirement in this contract.
Do you recall that?
20 A
I do.
21 Q
Is that one of the sentences you just read?
148
1 A
That is.
That's the last sentence -- the second to
2 last sentence.
3 Q
And what has to happen under your understanding of
4 this document before that 30-day requirement kicks in?
5 A
They have to comply with providing a cover letter
6 identifying all claims for which legal invoices are being
7 submitted.
You need to identify total amount of defense
8 cost for each particular claim.
They need a brief summary
9 of the work performed during the quarter and their
10 purpose.
And they have to identify the share, the
11 Commercial Union share.
12 Q
Don't they have to submit invoices?
13
MR. MOSS:
14
THE COURT:
Objection.
Leading.
This is cross.
You may on the
15 subject of the direct, you may lead.
16 BY MR. O'CONNOR:
17 Q
Doesn't it say HCC will submit all legal invoices?
18 A
It does.
The first sentence says on a quarterly
19 basis they will submit all legal invoices.
20 Q
In your experience in the insurance claims business,
21 Exhibit 340, is that a legal invoice?
149
1 A
Absolutely not.
2 Q
Does it include a legal invoice?
3 A
Absolutely not.
4 Q
Does it include the information typically contained
5 on a legal invoice?
6 A
Not even close.
7 Q
Ms. Bresson, you talked about the photoresist
8 billings that was submitted to you.
Do you recall
9 answering Mr. Moss's questions about the photoresist
10 billings?
11 A
I do.
12 Q
Are you familiar with the information that was
13 provided, the documentation that was provided to you in
14 connection with the photoresist billing?
15 A
I was.
16 Q
I'm going to show you a binder that's been marked as
17 defendant's 339 and ask you if you recognize this
18 document.
19 A
I do.
20 Q
What is it?
21 A
It's a sample of a typical quarterly billing from
150
1 Celanese on the photoresist claims for reimbursement from
2 Commercial Union.
3 Q
And there are -MR. O'CONNOR:
4
Your Honor, I'd like to have this
5 document admitted into evidence.
6
MR. MOSS:
Objection, your Honor, for the same
THE COURT:
Are you offering it for the same
7 reasons.
8
9 purpose as --
MR. O'CONNOR:
10
I'm offering it as an example,
11 your Honor, not for the truth.
THE COURT:
12
I'll allow it again as an exemplar,
13 an example of the typical quarterly bills received from
14 Celanese on the photoresist claims.
(Billing exemplar for photoresist claims was
15
16 received into evidence and marked as Exhibit No. 339.)
17 BY MR. O'CONNOR:
18 Q
There are three tabs in this document.
19 that, Ms. Bresson?
20 A
Yes.
21 Q
What is at the first tab?
Do you see
151
1 A
The first tab is the typical spreadsheet received on
2 photoresist cases identifying claimant name, fees and
3 expenses and a total.
4 Q
And the claimant name -- there's a number in the
5 first column.
6 A
What do you understand that to represent?
I believe that's an Enviro-Tox or Celanese claim
7 number, file number.
That's something internal to either
8 Enviro-Tox or Celanese.
9 Q
And the second column is the name of the claimant
10 involved?
11 A
The name of the lead plaintiff.
12 Q
Just as you talked about the lead plaintiffs on the
13 asbestos side, right?
14 A
Exactly.
It's only one of many that could be in the
15 case.
16 Q
And then there's a fees column?
17 A
Fees is the next, third column.
18 Q
And that represents what, to your understanding?
19 A
That would represent the amount of charges that the
20 individual law firm, the attorney, would have billed for
21 that file for that quarter.
152
1 Q
And the expense column are the expenses they
2 incurred?
3 A
The expenses.
4 Q
Those same vendors or law firms or whatever?
5 A
Travel, copying.
6 Q
And the last column's a total?
7 A
Yes, a grand total.
8 Q
And at Tab 2 there's another spreadsheet.
What is
9 that?
10 A
This is similar to the asbestos spreadsheet.
11 the CGU Second Quarter Photoresist report.
It's
It's the
12 second page of the billing that would be provided that
13 would identify one-line entries giving law firm names,
14 invoice number -- I'm sorry, invoice date, total amount
15 invoiced, a prorated amount, CGU's share, some numbers for
16 Enviro-Tox's internal claim numbering.
17 Q
Now, to this point it seems like the identical
18 information provided -- identical type of information
19 provided as with respect to the asbestos and chemical
20 billing, correct?
21 A
Yes.
153
1 Q
At Tab 3 there's another volume of documentation.
2 What is that?
3 A
These were, they're called photoresist proration
4 sheets.
They were -- let's think of them as top sheets
5 that were prepared by Joe Peters' staff at Enviro-Tox that
6 would accompany the other two documents that I just
7 identified.
8 Q
Now, attached to the back of each of the set of
9 proration sheets is what?
Why don't you just look at the
10 first stapled set that's within the document.
11 A
Okay.
At the back there is a copy of, in this
12 example, Burn & Brown, a law firm, an invoice for May 21,
13 2004.
14 Q
And that's the type of backup that you testified you
15 needed with respect to the asbestos billings, correct?
16 A
Yes.
17 Q
Now, you also testified on direct that there was some
18 inadequacies with these submissions; is that correct?
19 A
That's correct.
20 Q
What was wrong with them?
21 A
Well, the Burn & Brown, for example, bill does not
154
1 identify which plaintiff the bill is for.
The bill
2 heading is "San Jose IBM Work for Litigation in May."
3 This bill is attached to how many pages of individual
4 proration sheets for plaintiff Lea Leff, Linda Williams,
5 Gregory Gomez, Randall Baron, George Barboza.
The bill does have summary total information so
6
7 I can see what the total expense are, I can see the time
8 period.
The bill does not tell me which plaintiffs these
9 charges are for.
The description, the narrative that's
10 provided says, in the first line entry, "Telephone call
11 with Kim Conroy of Kasowitz regarding Patricia Butler's
12 declaration date 2/21," I have no idea who Patricia Butler
13 is.
Kim Conroy is with Kasowitz, which was one of the
14 firms, but without my interaction, typical interaction
15 with a defense firm, I have no idea whether this charge,
16 in fact, occurred, how it related to, what plaintiff
17 applied to, and if Resolute had responsibility for paying
18 our share of this entry.
19 Q
Is it fair to say that the proration sheets that are
20 attached to the front of this document divide out or
21 prorate out among the listed claimants on each of the
155
1 proration sheets, the charges associated with this bill,
2 with the backup bill that's attached?
Is that your
3 understanding?
4 A
Yes.
5 Q
Do you have any idea and can you explain from
6 reviewing this document how that was done?
7 A
No, I can't get from the invoice to what they did
8 here.
This work was done at Enviro-Tox.
I don't know how
9 they get from Point A to Point B and ask me to pay what
10 they're referencing on Point B.
11 Q
And what's included in these legal invoices doesn't
12 explain that to you, does it?
13 A
No, it does not.
14 Q
Did you have discussions with Mr. Peters and Donna
15 Hurt regarding this exact problem?
16 A
Yes.
I indicated that on billings you need to bill
17 by claimant, by matter, so that when you're looking at an
18 invoice you know that all those charges associated with an
19 invoice are for that claimant or that matter.
And in the
20 normal course, if you were having your interaction with
21 defense counsel, you would know from looking at the bill,
156
1 I would know clearly that at least sometime in April there
2 was a conference call or there was a declaration.
3 Whatever the description was I would have some awareness
4 of it.
I had no awareness of any of these descriptions
5
6 because I was precluded from speaking with defense counsel
7 for Celanese unless Celanese was present and -- I didn't
8 have any ability to check this, to know this grouping of
9 billing was, in fact, tied to these claimants that they
10 had prorated sheets for.
11
THE COURT:
12
Ladies and gentlemen, we have a long weekend
13 coming up.
15 the case.
17
We'll stop here.
I hope you enjoy the holiday.
Please remember my instruction not to discuss
14
16 case.
It's one o'clock.
Keep an open mind as to every issue in the
I'll see you back on Tuesday morning.
(The hearing was adjourned.)
18
19
C-E-R-T-I-F-I-C-A-T-I-O-N
20
21
I, Paula Pietrella, Official Court Reporter, do
157
1
hereby certify that the foregoing is a true and
2
accurate transcript from the record of the court
3
proceedings in the above-entitled matter.
4
I, Paula Pietrella, further certify that the
5
foregoing is in compliance with the Administrative
6
Office of the Trial Court Directive on Transcript
7
Format.
8
I, Paula Pietrella, further certify that I
9
neither am counsel for, related to, nor employed by
10
any of the parties to this action in which this
11
hearing was taken, and further certify that I am
12
not financially nor otherwise interested in the
13
outcome of the action.
14
15
__________________________________________
16
Paula Pietrella
17
3 Pemberton Square, 13th Floor
18
Boston, Massachusetts 02108
19
(617) 788-6184
20
21
___________________________________________
158
1
Date