INSURANCE COMPANY of CANADA, NATIONAL

CANADA, as successor to COMMERCIAL UNION ASSURANCE CO., LTD.; and ZURICH INSURANCE

PLEASE TAKE NOTICE that upon the Motion of Defendants Federal Insurance Company, Chubb Insurance Company of Canada, and Vigilant Insurance Company to Vacate, in Part, the Special Referee’s December 12, 2022 Order Regarding Plaintiffs’ Motion to Compel Disclosures, the accompanying Brief in Support thereof, and the exhibits annexed thereto, Defendants Federal Insurance Company, Chubb Insurance Company of Canada, and Vigilant Insurance Company (collectively “Chubb Defendants”) will move this Court, pursuant to CPLR 3104, at the Motion Submission Part, Room 130, at the Supreme Court of the State of New York, New York County, located at 60 Centre Street, New York, New York, on January 17, 2023 at 9:30 a.m., or as soon thereafter as counsel can be heard, for an Order vacating the Special Referee’s December 12, 2022 Decision and Order, in part, or in the alternative, modifying the Special Referee’s Decision and Order, and: (1) Vacate the Special Referee’s December 12, 2022 Decision and Order to the extent it ordered Chubb Defendants to produce documents prepared and utilized for the ongoing coverage dispute as set forth in Appendix A of the Special Referee’s Order; and (2) Vacate the Special Referee’s December 12, 2022 Decision and Order, to the extent it ordered John (Jack) S. Pierce of Hinshaw & Culbertson LLP and Stuart Maue Ltd. to substantively respond to Plaintiffs’ Third-Party Subpoenas Duces Tecum.

As set forth in Chubb’s accompanying Brief in Support, Chubb submits that such a ruling was clearly erroneous or contrary to law, and constitutes an abuse of discretion.

PLEASE TAKE FURTHER NOTICE that, pursuant to CPLR 2210(b), oppositions and cross-motions, if any, shall be served upon the undersigned counsel at least seven (7) days prior to the return date of this motion.

The Special Referee found that Chubb’s outside counsel conducted claims handling for Chubb, but nonetheless denied the NHL’s motion to compel Chubb to produce these documents without evaluating Chubb’s specific document ...

Nonetheless, the Special Referee erroneously denied in its entirety the NHL’s motion to compel Chubb to disclose the 5,525 “documents and communications” involving Chubb’s outside counsel.

Respectfully, this misses the point: even if Chubb contemplated litigation at that time, it nonetheless admittedly continued its claims handling activities long after that point.

As the First Department has repeatedly held, however, claims handling, adjusting, and evaluation analyses constitute ordinary business activity and are discoverable even if prepared by in- house or external counsel.

To the extent Chubb claims that reserve information is protected from disclosure, I reject that argument for the reasons stated in my November 21, 2022 Decision and Order in this matter.

In April 2017, through their coverage litigation counsel, AIG and Chubb engaged Jack Pierce, of Hinshaw Culbertson, and Stuart Maue to provided expert services in connection with the dispute pending between NHL and the Insurers.

Stuart Maue prepared initial work papers that AIG and Chubb independently considered in connection with making certain defense cost payments under a full reservation of rights.

The most compelling conclusion is that Hinshaw and Maue were retained, at least in part, to aid Chubb in making "defense cost payments" which is a claims handling function.

None of these documents suggest that the reserve 5 FILED: NEW YORK COUNTY CLERK 12/05/2022 06:40 PM NYSCEF DOC. NO.

Accordingly, the NHL does not address those purported “Facts” other than to note that the NHL does not accept Aviva’s recitation of events and reserves all rights and waives none.

None of these documents suggest that the reserve information set forth therein is the product of a recommendation by counsel or that counsel’s legal analysis played a role in setting the reserves.

Accordingly, the NHL does not respond to that argument, but reserves all rights to contest it at the appropriate time and waives none.

None of these documents suggest that the reserve 5 FILED: NEW YORK COUNTY CLERK 11/23/2022 04:25 PM NYSCEF DOC. NO.

OF GOVERNORS and NHL ENTERPRISES,

INSURANCE COMPANY of CANADA,

INSURANCE COMPANY OF CANADA, as successor to COMMERCIAL UNION ASSURANCE CO., LTD.; and ZURICH

PLEASE TAKE NOTICE that upon the memorandum of law and affirmation of Glenn A. Jacobson and exhibits annexed thereto, and upon the pleadings and proceedings heretofore had herein, the undersigned will move this Court, pursuant to CPLR 3104, at the Motion Submissions Part, Room 130, 60 Center Street, New York, New York, on November 30, 2022, at 9:30 A.M., or as soon thereafter as counsel can be heard, for review of the Decision and Order of Special Referee Henry Pitman dated October 25, 2022 (“Special Referee’s decision”), and for an Order vacating the Special Referee’s decision in part, or, in the alternative, modifying the Special Referee’s decision, and: a) Vacating that part of the Special Referee’s decision which overruled Aviva’s objections to Interrogatory No. 10 of Plaintiff’s First Set of Interrogatories to Aviva; and b) for such other and further relief as this Court may deem just and proper

PLEASE TAKE FURTHER NOTICE that, pursuant to CPLR 2210 (b), answering affidavits, if any, are required to be served no less than seven (7) days before the return date of this motion.