On October 17, 2018 a
Party Discovery
was filed
involving a dispute between
Utica Mutual Insurance Company,
and
Abeille General Insurance Company N K A 21St Century National Insurance Company,
Aetna Casualty And Surety Company Of America N K A Travelers Casualty And Surety,
Aetna Casualty And Surety Of Illinois, N K A Travelers Casualty Insurance Compan,
Aetna Insurance Company N K A Ace Property & Casualty Insurance Company,
Alfa Mutual Insurance Company,
Allendale Mutual Insurance Company N K A Factory Mutual Insurance Company,
American Agricultural Insurance Company,
American Home Assurance Company,
American Motorists Insurance Company N K A Lumbermens Mutual Casualty Company,
American Mutual Liability Insurance Company N K A New England Mutual Insurance C,
Anthem Casualty Insurance Group N K A Shelby Casualty Insurance Company,
Arkwright Mutual Insurance Company N K A Factory Mutual,
Atlas Assurance Company Of America N K A Peerless Indemnity Insurance Company,
Axa Re Property And Casualty N K A Mosaic Insurance Company,
Bellefonte Re Insurance Company N K A Northwestern National Insurance Company,
Cincinnati Insurance Company,
Commercial Union Insurance Company N K A Onebeacon American Insurance Company,
Continental Casualty Company,
Continental Insurance Company,
Dai-Tokyo Fire And Marine Insurance Company Limited N K A Aioi Nissay Dowa Insur,
Delta America Re Insurance Company,
Dorinco Reinsurance Company,
Eagle Star Insurance Company Limited N K A Swiss Re Europe S.A.,
Employers Mutual Casualty Company,
Excess And Treaty Management Corporation, Both Individually And As Agent For The,
Farmers Home Mutual Insurance Company N K A Western Natiional Mutual Insurance G,
Farmers Mutual Hail Insurance Company Of Iowa,
Financial Security Assurance Of Iowa Incorporated N K A Advantage Workers Compen,
Folksamerica Reinsurance Company N K A Sirius America Insurance Company,
General Accident Ins Company Of America N K A Onebeacon Insurance Company,
General Insurance Company Of America,
General Star National Insurance Company,
Great American Insurance Company,
Greater New York Mutual Insurance Company,
Guarantee Insurance Company,
Hanover Insurance Company,
Hanover Ruckversicher Ag N K A Hanover Ruck Se,
Hartford Steam Boiler Inspection And Insurance Company,
Hastings Mutual Ins Company,
Highlands Insurance Company,
Home Insurance Company,
Inland Insurance Company,
Insurance Company Of North America,
Insurance Corporation Of Hannover N K A Praetorian Insurance Company,
Integon General Insurance Corporation,
Liberty Mutual Insurance Company,
Merastar Insurance Company,
Merchants And Business Men'S Mutual N K A Liberty Mutual Mid-Atlantic Insurance,
Merrimack Mutual Fire Insurance Company,
Metropolitan Reinsurance Company N K A Metropolitan Group Property And Casualty,
Mission Insurance Company,
Motorists Mutual Insurance Company,
Mutual Fire Marine & Inland Insurance N K A Mutual Fire & Marine Insurance Compa,
Nac Reinsurance Corporation N K A Xl Reinsurance America, Inc.,
National Reinsurance Corporation,
Nem Re-Insurance Corporation,
New England Reinsurance Corporation,
Northeastern Insurance Company Hartford,
Providence Washington Insurance Company,
Reliance Insurance Company,
Republic Insurance Company N K A Starr Indemnity And Liability Company,
Rochdale Insurance Company,
Royal Insurance Company Of America N K A Arrowpoint Indemnity Company,
Security Insurance Company Of Hartford N K A Arrowpoint Indemnity Company,
Sentry Insurance A Mutual Company,
Sorema North America Reinsurance Company N K A General Security National Insuran,
State Farm Fire And Casualty Company,
St. Paul Fire And Marine Insurance Company,
Swiss Re Underwriters Agency Incorporated,
Sydney Reinsurance Corporation N K A Qbe Reinsurance Corporation,
Taisho Marine And Fire Insurance Company N K A Mitsui Sumitomo Insurance Usa Inc,
Tokio Marine And Nichido Fire Insurance Company, Limited N K A Toko Marine Ameri,
Travelers Corporation,
Trenwick America Reinsurance Corporation,
Unigard Mutual Insurance Company N K A Seaton Insurance Company,
Union Indemnity Insurance Company Company Of New York,
United Fire And Casualty Company,
Universal Reinsurance Corporation N K A Northwestern National Insurance Company,
Vesta Fire Insurance Corporation,
Wausau Insurance Company N K A Wausau Underwriters Insurance Company,
Westport Insurance Company,
Winterthur Reinsurance Corporation Of America N K A Partnerre Insurance Company,
Zurich American Insurance Company,
for Commercial - Insurance
in the District Court of Oneida County.
Preview
FILED: ONEIDA COUNTY CLERK 12/02/2022 11:54 AM INDEX NO. EFCA2018-002918
NYSCEF DOC. NO. 621 RECEIVED NYSCEF: 12/02/2022
EXHIBIT 30
FILED: ONEIDA COUNTY CLERK 12/02/2022 11:54 AM INDEX NO. EFCA2018-002918
NYSCEF DOC. NO. 621 RECEIVED NYSCEF: 12/02/2022
Page 1 Page 3
UNITED STATES DISTRICT COURT 1 APPEARANCES
NORTHERN DISTRICT OF NEW YORK
2 ON BEHALF OF THE PLAINTIFF:
UTICA MUTUAL ) 3 SIMPSON THACHER & BARTLETT LLP
INSURANCE COMPANY, ) 4 BY: ALEXANDER SIMKIN, ESQ.
)
Plaintiff, ) 5 425 Lexington Avenue
) No. 6 New York, New York 10017
-vs- ) 6:15-cv-00270
) (BKS/ATB)
7 PHONE: 212-455-2000
R&Q REINSURANCE ) 8 EMAIL: Asimkin@stblaw.com
COMPANY f/k/a INA ) 9
REINSURANCE COMPANY, )
) 10 ON BEHALF OF THE DEFENDANTS:
Defendants. ) 11 CHADBOURNE & PARKE, LLP
CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER
12 BY: JOHN F. FINNEGAN, ESQ.
13 1301 Avenue of the Americas
VIDEOTAPED EXAMINATION OF 14 New York, New York 10019
DANE AUSTIN
_______________________________ 15 PHONE: 212-408-5180
16 EMAIL: Jfinnegan@chadbourne.com
TAKEN ON 17 ALSO PRESENT
WEDNESDAY, JANUARY 25, 2017 18 PHILLIP MAZO, Videographer
19
20 --o0o--
21
22
REPORTED BY:
JESSIE WAACK, RDR, CRR, CCRR, CCR, NYACR, NYRCR 23
24
JOB NO.: 7641
25
Page 2 Page 4
1 UNITED STATES DISTRICT COURT 1 INDEX TO EXAMINATION
2 NORTHERN DISTRICT OF NEW YORK 2 WITNESS: DANE AUSTIN
3
4 UTICA MUTUAL )
3 EXAMINATION PAGE
INSURANCE COMPANY, ) 4 BY MR. FINNEGAN 9
5 ) 5 BY MR. SIMKIN 113
Plaintiff, ) 6 BY MR. FINNEGAN 127
6 ) No. 7
-vs- ) 6:15-cv-00270
7 ) (BKS/ATB) 8 -o0o-
R&Q REINSURANCE ) 9 INFORMATION REQUESTED
8 COMPANY f/k/a INA ) 10 None
REINSURANCE COMPANY, ) 11
9 )
Defendants. ) 12
10 13 WITNESS INSTRUCTED NOT TO ANSWER
11 VIDEOTAPED EXAMINATION of 14 None
12 DANE AUSTIN, taken at the instance of 15
13 Defendants, before JESSICA R. WAACK,
14 Registered Professional Reporter, 16
15 Registered Merit Reporter, Certified 17
16 Realtime Reporter, Registered Diplomate 18
17 Reporter, California Certified Realtime 19
18 Reporter, Certified Court Reporter in New
19 Jersey, New York Association Certified
20
20 Reporter, New York Realtime Court Reporter 21
21 and Notary Public of the State of New 22
22 York, at Simpson, Thacher & Bartlett, 425 23
23 Lexington Avenue, New York, New York, on 24
24 Wednesday, January 25, 2017, commencing at
25 10:01 a.m. and concluding at 12:36 p.m. 25
1 (Pages 1 to 4)
WINTER REPORTING, INC. (212) 953-1414
FILED: ONEIDA COUNTY CLERK 12/02/2022 11:54 AM INDEX NO. EFCA2018-002918
NYSCEF DOC. NO. 621 RECEIVED NYSCEF: 12/02/2022
Page 13 Page 15
1 (CONFIDENTIAL - DANE AUSTIN - 01/25/17) 1 (CONFIDENTIAL - DANE AUSTIN - 01/25/17)
2 supervisor, national accounts underwriter, 2 accounting-type positions to becoming an
3 director of reinsurance and pools, 3 underwriter?
4 residual market manager, personal 4 A. Early '80s.
5 lines operations manager, risk officer, 5 Q. And for what period of time were
6 director of mergers and acquisitions. And 6 you an underwriter or an underwriting
7 that's probably most of them at Utica. 7 supervisor?
8 Q. Okay. And in the listing that 8 A. So I'm trying to remember the
9 you gave us, is that sequential such that 9 dates. So I went to underwriting
10 you began as a tax accountant, your next 10 commercial -- commercial underwriting
11 position was statement accountant and so 11 probably February of '83, if that makes
12 on? 12 sense.
13 A. Fairly sequential. There was 13 Did that for about a year and a
14 some flipping back and forth -- 14 half, and then was a supervisor for about
15 Q. Okay. 15 a year and a half, and then went into
16 A. -- between reinsurance and some 16 national accounts. I was in national
17 operations stuff in the backend of 17 accounts for about three years, give or
18 reinsurance. My last role there, I was 18 take a few months.
19 over reinsurance, I was a risk officer for 19 Q. Okay. So roughly '86 through
20 the company, and I was in charge of 20 '87, you were in national accounts?
21 mergers and acquisitions. 21 A. Yes.
22 Q. Okay. What exactly is 22 Q. Okay. Do you have any ongoing
23 entailed -- what are the responsibilities 23 responsibilities or dealings with Utica or
24 of a risk manager? 24 any of the Utica accounts today?
25 A. The risk officer? 25 A. No, not in their business.
I
Page 14 Page 16
1 (CONFIDENTIAL - DANE AUSTIN - 01/25/17) 1 (CONFIDENTIAL - DANE AUSTIN - 01/25/17)
2 Q. Yes. 2 work at New York Property Insurance
3 A. Yes. It was -- well, that was a 3 Underwriting Association today.
4 good question. 4 Q. Okay.
5 Q. I'm bound to get one or two 5 A. As such, it's -- it's the fair
6 today. 6 plan. That's what it is.That's the
7 A. I'm sure you are. So I was 7 property residual market in New York.
8 overseeing risk of the company, and that 8 As such, that is governed by 13
9 was offensive and defensive risk. 9 board members, some of which are company
10 So if we were thinking about 10 representatives elected by the industry to
11 going into a new line in a new state, I 11 serve on that board.
12 would weigh in on that, whether I thought 12 Utica National has had a seat on
13 the risk and reward were in balance. 13 that board and continues to have a seat on
14 If I was concerned that we had 14 that board. So my interactions with Utica
15 exposures beyond our capital strength, I 15 consist of my role at New York Property.
16 would also flag that. So it was offensive 16 And they're in a governance
17 and defensive. 17 position of that, and they serve on one of
18 It was an evolving position, 18 the subcommittees or two of the
19 because they never had one before I picked 19 subcommittees.
20 it up to work on enterprise, risk 20 Q. And who is a representative to
21 management, which was an unfolding science 21 the property board?
22 when I picked it up. Originally just 22 A. Two people from Utica are on the
23 quantitative analysis and eventually 23 board: Bernie Turi and Paul Cohen.
24 morphed into something different, so. 24 Q. Okay. And are those the
25 Q. When did you switch over from 25 individuals that also serve on committees?
4 (Pages 13 to 16)
WINTER REPORTING, INC. (212) 953-1414
FILED: ONEIDA COUNTY CLERK 12/02/2022 11:54 AM INDEX NO. EFCA2018-002918
NYSCEF DOC. NO. 621 RECEIVED NYSCEF: 12/02/2022
Page 49 Page 51
1 (CONFIDENTIAL - DANE AUSTIN - 01/25/17) 1 (CONFIDENTIAL - DANE AUSTIN - 01/25/17)
2 about policy forms, you know, whether an 2 that the forms weren't filled out right,
3 umbrella jacket, an endorsement, anything 3 so he filled it out.
4 like that -- 4 And there was no -- and so there
5 A. Yeah, I don't remember doing 5 was -- the forms were incorrectly filled
6 anything like that. 6 out for a period, and I don't remember
7 Q. Let me show you a document 7 exactly how long.
8 that's been previously marked as Exhibit 8 8 But then they were corrected
9 for identification. 9 again and moved on. And I remember seeing
10 MR. FINNEGAN: And for the 10 that and thinking it was interesting,
11 record, I'll identify it as what 11 because it was obviously intent to have an
12 appears to be a memorandum authored by 12 aggregate limit in there.
13 you to Mr. Beidleman with a copy to 13 But it wasn't in there, and it
14 Mr. Sherman dated 8/8/86. 14 looked to me like it was just a mistake at
15 BY MR. FINNEGAN: 15 the clerical level on that.
16 Q. Let me begin by asking: Is this 16 That I remember, because that
17 the memorandum that you were talking about 17 was -- I remember discussion around that.
18 before that you have some faint 18 And that's really what prompted the memo.
19 recollection of preparing? 19 But the specifics of that, that's just my
20 A. Yes. 20 general recollection of what was going on
21 Q. And does your recollection of 21 around that memo.
22 working on this matter extend beyond the 22 Q. Okay.
23 words that are on the page? In other 23 A. Is that fairly accurate within
24 words, we can all sit and read what's on 24 the memo? What did I say?
25 here. 25 Q. You say that the memo triggers
Page 50 Page 52
1 (CONFIDENTIAL - DANE AUSTIN - 01/25/17) 1 (CONFIDENTIAL - DANE AUSTIN - 01/25/17)
2 And what I'm trying to find out 2 some recollection of some discussion
3 is: Does it jog any memories separate and 3 around that.
4 apart from just reading the words on a 4 A. Yeah.
5 page and telling me, "Yeah, this -- you 5 Q. Can you tell me what discussion
6 know, I remember writing this"? 6 you're referring to? Who was involved in
7 A. I can tell you, in general, what 7 it --
8 this triggers when I look at it. 8 A. I can't tell you who all was
9 Q. Okay. 9 involved specifically.You would think
10 A. What was going on is that when I 10 that Rob Sherman would have been. He was
11 was putting together for this memo, it 11 my boss from the department.
12 looked to me like we had provided an 12 But I don't know who else would
13 aggregate limit for burn, and then it 13 have been in that discussion around that.
14 looked like -- it's a pretty vague 14 But I do remember talking about it,
15 recollection, but as I recall, forms 15 because it's, like, Hey, I think somebody
16 changed. 16 screwed up here on how they filled out the
17 And people that marked them up 17 forms.
18 for renewal, it looked like they just 18 Q. Okay. You don't actually say
19 weren't exactly sure what they were doing 19 that in this memo that it looks like
20 and didn't fill out the new form right. 20 somebody screwed up, do you?
21 It kind of bumped along for a 21 MR. SIMKIN: Object to the form.
22 while. And then it looked to me, as I 22 BY MR. FINNEGAN:
23 recall, there was an underwriter -- it 23 Q. If so, can you point out to me
24 just seemed to me it was Rich Mayer before 24 where you do it? That would be helpful.
25 I got to national accounts that noticed 25 MR. SIMKIN: Objection.
13 (Pages 49 to 52)
WINTER REPORTING, INC. (212) 953-1414
FILED: ONEIDA COUNTY CLERK 12/02/2022 11:54 AM INDEX NO. EFCA2018-002918
NYSCEF DOC. NO. 621 RECEIVED NYSCEF: 12/02/2022
Page 113 Page 115
1 (CONFIDENTIAL - DANE AUSTIN - 01/25/17) 1 (CONFIDENTIAL - DANE AUSTIN - 01/25/17)
2 EXAMINATION 2 Q. And are you familiar with
3 BY MR. SIMKIN: 3 facultative reinsurance generally?
4 Q. Mr. Austin, during the time that 4 A. Facultative reinsurance?
5 you worked at Utica, was it your belief 5 Generally.
6 that the primary policies Utica sold to 6 Q. And did you have any involvement
7 Burnham in the 1970s and 1980s were 7 with facultative reinsurance while you
8 subject to a products aggregate limit? 8 were at Utica?
9 MR. FINNEGAN: Objection. 9 A. I did.
10 THE WITNESS: Yes, as I recall. 10 Q. And what was your involvement
11 BY MR. SIMKIN: 11 with facultative reinsurance while you
12 Q. And why did you believe that the 12 worked at Utica?
13 primary policies Utica sold to Burnham in 13 A. I placed some, I'm sure. No
14 the 1970s and '80s contained a products 14 specific recollection of that.
And
15 aggregate limit? 15 probably taught underwriters what it was
16 MR. FINNEGAN: Objection. 16 supposed to be when I was a reinsurance
17 THE WITNESS: Because, as 17 director there, how underwriters should
18 underwriters, you wouldn't write 18 use facultative.So, in general, around
19 something without an aggregate on it 19 facultative reinsurance, yeah.
20 if it had products liability exposure. 20 Q. And can you tell me some of the
21 BY MR. SIMKIN: 21 reasons that Utica purchased facultative
22 Q. And that was a practice that 22 reinsurance at the time that you worked at
23 Utica had in the 1970 -- 23 Utica?
24 A. Yeah, just a general 24 A. It was, in general, if an
25 underwriting practice. 25 insured needed a limit that was more than
Page 114 Page 116
1 (CONFIDENTIAL - DANE AUSTIN - 01/25/17) 1 (CONFIDENTIAL - DANE AUSTIN - 01/25/17)
2 Q. And during the more than 30 2 we were comfortable taking, we had, you
3 years that you worked for Utica, did you 3 know, a limit to how much limit we would
4 ever come across any instance of Utica 4 take out. You would buy fac- on top of
5 selling unaggregated products coverage in 5 that for any given risk.
6 the 1970 or 1980s? 6 Q. And does facultative reinsurance
7 MR. FINNEGAN: Objection. 7 generally follow the terms of the
8 THE WITNESS: Not that I recall. 8 reinsurance policy?
9 BY MR. SIMKIN: 9 A. Yes.
10 Q. So do you have any recollection 10 Q. And why would it be important to
11 of Utica ever telling any potential 11 a purchaser of reinsurance like Utica that
12 purchaser of insurance that it was willing 12 its facultative reinsurance follow the
13 to sell unaggregated products coverage? 13 terms of the reinsured policy?
14 A. No. 14 MR. FINNEGAN: Objection.
15 MR. FINNEGAN: Objection. 15 THE WITNESS: Why would it be
16 BY MR. SIMKIN: 16 important?
17 Q. If Utica did sell unaggregated 17 BY MR. SIMKIN:
18 products coverage, do you think that is 18 Q. Yeah.
19 something that you would remember? 19 A. Because you're looking to come
20 A. Yes. It would have taken an act 20 up right over the coverage, basically
21 of the Pope for that to have happened. 21 higher limits than you're providing
22 Q. What do you mean it would have 22 underneath. It's just the same coverage
23 taken an act of the Pope? 23 above it.
24 A. There is just no way anybody 24 Q. So, you know, you're looking to
25 would have signed off on that. 25 avoid liability gaps that --
29 (Pages 113 to 116)
WINTER REPORTING, INC. (212) 953-1414
FILED: ONEIDA COUNTY CLERK 12/02/2022 11:54 AM INDEX NO. EFCA2018-002918
NYSCEF DOC. NO. 621 RECEIVED NYSCEF: 12/02/2022
Page 145
1 REPORTER CERTIFICATE
2 I, the undersigned, do hereby certify:
3 That DANE AUSTIN was by me duly sworn in
4 the within-entitled cause; that said
5 deposition was taken at the time and place
6 herein named; and that the deposition is a
7 true record of the witness's testimony as
8 reported by me, a disinterested person, and
9 was thereafter transcribed.
10 I further certify that I am not
11 interested in the outcome of the said
12 action, nor connected with, nor related to
13 any of the parties in said action, nor to
14 their respective counsel.
15 IN WITNESS WHEREOF, I have hereunto set
16 my hand this 29th day of January, 2017.
17 Signature: __Requested__Waived_X_Not Requested
18
19
20
21 ______________________________
22 JESSICA R. WAACK
Registered Diplomate Reporter
23 Certified Realtime Reporter
California Certified Realtime Reporter
24 New York Realtime Court Reporter
New York Association Court Reporter
25 Notary Public, State of New York
37 (Page 145)
WINTER REPORTING, INC. (212) 953-1414
Preview
FILED: ONEIDA COUNTY CLERK 12/02/2022 11:54 AM INDEX NO. EFCA2018-002918 NYSCEF DOC. NO. 621 RECEIVED NYSCEF: 12/02/2022 EXHIBIT 30 FILED: ONEIDA COUNTY CLERK 12/02/2022 11:54 AM INDEX NO. EFCA2018-002918 NYSCEF DOC. NO. 621 RECEIVED NYSCEF: 12/02/2022 Page 1 Page 3 UNITED STATES DISTRICT COURT 1 APPEARANCES NORTHERN DISTRICT OF NEW YORK 2 ON BEHALF OF THE PLAINTIFF: UTICA MUTUAL ) 3 SIMPSON THACHER & BARTLETT LLP INSURANCE COMPANY, ) 4 BY: ALEXANDER SIMKIN, ESQ. ) Plaintiff, ) 5 425 Lexington Avenue ) No. 6 New York, New York 10017 -vs- ) 6:15-cv-00270 ) (BKS/ATB) 7 PHONE: 212-455-2000 R&Q REINSURANCE ) 8 EMAIL: Asimkin@stblaw.com COMPANY f/k/a INA ) 9 REINSURANCE COMPANY, ) ) 10 ON BEHALF OF THE DEFENDANTS: Defendants. ) 11 CHADBOURNE & PARKE, LLP CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER 12 BY: JOHN F. FINNEGAN, ESQ. 13 1301 Avenue of the Americas VIDEOTAPED EXAMINATION OF 14 New York, New York 10019 DANE AUSTIN _______________________________ 15 PHONE: 212-408-5180 16 EMAIL: Jfinnegan@chadbourne.com TAKEN ON 17 ALSO PRESENT WEDNESDAY, JANUARY 25, 2017 18 PHILLIP MAZO, Videographer 19 20 --o0o-- 21 22 REPORTED BY: JESSIE WAACK, RDR, CRR, CCRR, CCR, NYACR, NYRCR 23 24 JOB NO.: 7641 25 Page 2 Page 4 1 UNITED STATES DISTRICT COURT 1 INDEX TO EXAMINATION 2 NORTHERN DISTRICT OF NEW YORK 2 WITNESS: DANE AUSTIN 3 4 UTICA MUTUAL ) 3 EXAMINATION PAGE INSURANCE COMPANY, ) 4 BY MR. FINNEGAN 9 5 ) 5 BY MR. SIMKIN 113 Plaintiff, ) 6 BY MR. FINNEGAN 127 6 ) No. 7 -vs- ) 6:15-cv-00270 7 ) (BKS/ATB) 8 -o0o- R&Q REINSURANCE ) 9 INFORMATION REQUESTED 8 COMPANY f/k/a INA ) 10 None REINSURANCE COMPANY, ) 11 9 ) Defendants. ) 12 10 13 WITNESS INSTRUCTED NOT TO ANSWER 11 VIDEOTAPED EXAMINATION of 14 None 12 DANE AUSTIN, taken at the instance of 15 13 Defendants, before JESSICA R. WAACK, 14 Registered Professional Reporter, 16 15 Registered Merit Reporter, Certified 17 16 Realtime Reporter, Registered Diplomate 18 17 Reporter, California Certified Realtime 19 18 Reporter, Certified Court Reporter in New 19 Jersey, New York Association Certified 20 20 Reporter, New York Realtime Court Reporter 21 21 and Notary Public of the State of New 22 22 York, at Simpson, Thacher & Bartlett, 425 23 23 Lexington Avenue, New York, New York, on 24 24 Wednesday, January 25, 2017, commencing at 25 10:01 a.m. and concluding at 12:36 p.m. 25 1 (Pages 1 to 4) WINTER REPORTING, INC. (212) 953-1414 FILED: ONEIDA COUNTY CLERK 12/02/2022 11:54 AM INDEX NO. EFCA2018-002918 NYSCEF DOC. NO. 621 RECEIVED NYSCEF: 12/02/2022 Page 13 Page 15 1 (CONFIDENTIAL - DANE AUSTIN - 01/25/17) 1 (CONFIDENTIAL - DANE AUSTIN - 01/25/17) 2 supervisor, national accounts underwriter, 2 accounting-type positions to becoming an 3 director of reinsurance and pools, 3 underwriter? 4 residual market manager, personal 4 A. Early '80s. 5 lines operations manager, risk officer, 5 Q. And for what period of time were 6 director of mergers and acquisitions. And 6 you an underwriter or an underwriting 7 that's probably most of them at Utica. 7 supervisor? 8 Q. Okay. And in the listing that 8 A. So I'm trying to remember the 9 you gave us, is that sequential such that 9 dates. So I went to underwriting 10 you began as a tax accountant, your next 10 commercial -- commercial underwriting 11 position was statement accountant and so 11 probably February of '83, if that makes 12 on? 12 sense. 13 A. Fairly sequential. There was 13 Did that for about a year and a 14 some flipping back and forth -- 14 half, and then was a supervisor for about 15 Q. Okay. 15 a year and a half, and then went into 16 A. -- between reinsurance and some 16 national accounts. I was in national 17 operations stuff in the backend of 17 accounts for about three years, give or 18 reinsurance. My last role there, I was 18 take a few months. 19 over reinsurance, I was a risk officer for 19 Q. Okay. So roughly '86 through 20 the company, and I was in charge of 20 '87, you were in national accounts? 21 mergers and acquisitions. 21 A. Yes. 22 Q. Okay. What exactly is 22 Q. Okay. Do you have any ongoing 23 entailed -- what are the responsibilities 23 responsibilities or dealings with Utica or 24 of a risk manager? 24 any of the Utica accounts today? 25 A. The risk officer? 25 A. No, not in their business. I Page 14 Page 16 1 (CONFIDENTIAL - DANE AUSTIN - 01/25/17) 1 (CONFIDENTIAL - DANE AUSTIN - 01/25/17) 2 Q. Yes. 2 work at New York Property Insurance 3 A. Yes. It was -- well, that was a 3 Underwriting Association today. 4 good question. 4 Q. Okay. 5 Q. I'm bound to get one or two 5 A. As such, it's -- it's the fair 6 today. 6 plan. That's what it is.That's the 7 A. I'm sure you are. So I was 7 property residual market in New York. 8 overseeing risk of the company, and that 8 As such, that is governed by 13 9 was offensive and defensive risk. 9 board members, some of which are company 10 So if we were thinking about 10 representatives elected by the industry to 11 going into a new line in a new state, I 11 serve on that board. 12 would weigh in on that, whether I thought 12 Utica National has had a seat on 13 the risk and reward were in balance. 13 that board and continues to have a seat on 14 If I was concerned that we had 14 that board. So my interactions with Utica 15 exposures beyond our capital strength, I 15 consist of my role at New York Property. 16 would also flag that. So it was offensive 16 And they're in a governance 17 and defensive. 17 position of that, and they serve on one of 18 It was an evolving position, 18 the subcommittees or two of the 19 because they never had one before I picked 19 subcommittees. 20 it up to work on enterprise, risk 20 Q. And who is a representative to 21 management, which was an unfolding science 21 the property board? 22 when I picked it up. Originally just 22 A. Two people from Utica are on the 23 quantitative analysis and eventually 23 board: Bernie Turi and Paul Cohen. 24 morphed into something different, so. 24 Q. Okay. And are those the 25 Q. When did you switch over from 25 individuals that also serve on committees? 4 (Pages 13 to 16) WINTER REPORTING, INC. (212) 953-1414 FILED: ONEIDA COUNTY CLERK 12/02/2022 11:54 AM INDEX NO. EFCA2018-002918 NYSCEF DOC. NO. 621 RECEIVED NYSCEF: 12/02/2022 Page 49 Page 51 1 (CONFIDENTIAL - DANE AUSTIN - 01/25/17) 1 (CONFIDENTIAL - DANE AUSTIN - 01/25/17) 2 about policy forms, you know, whether an 2 that the forms weren't filled out right, 3 umbrella jacket, an endorsement, anything 3 so he filled it out. 4 like that -- 4 And there was no -- and so there 5 A. Yeah, I don't remember doing 5 was -- the forms were incorrectly filled 6 anything like that. 6 out for a period, and I don't remember 7 Q. Let me show you a document 7 exactly how long. 8 that's been previously marked as Exhibit 8 8 But then they were corrected 9 for identification. 9 again and moved on. And I remember seeing 10 MR. FINNEGAN: And for the 10 that and thinking it was interesting, 11 record, I'll identify it as what 11 because it was obviously intent to have an 12 appears to be a memorandum authored by 12 aggregate limit in there. 13 you to Mr. Beidleman with a copy to 13 But it wasn't in there, and it 14 Mr. Sherman dated 8/8/86. 14 looked to me like it was just a mistake at 15 BY MR. FINNEGAN: 15 the clerical level on that. 16 Q. Let me begin by asking: Is this 16 That I remember, because that 17 the memorandum that you were talking about 17 was -- I remember discussion around that. 18 before that you have some faint 18 And that's really what prompted the memo. 19 recollection of preparing? 19 But the specifics of that, that's just my 20 A. Yes. 20 general recollection of what was going on 21 Q. And does your recollection of 21 around that memo. 22 working on this matter extend beyond the 22 Q. Okay. 23 words that are on the page? In other 23 A. Is that fairly accurate within 24 words, we can all sit and read what's on 24 the memo? What did I say? 25 here. 25 Q. You say that the memo triggers Page 50 Page 52 1 (CONFIDENTIAL - DANE AUSTIN - 01/25/17) 1 (CONFIDENTIAL - DANE AUSTIN - 01/25/17) 2 And what I'm trying to find out 2 some recollection of some discussion 3 is: Does it jog any memories separate and 3 around that. 4 apart from just reading the words on a 4 A. Yeah. 5 page and telling me, "Yeah, this -- you 5 Q. Can you tell me what discussion 6 know, I remember writing this"? 6 you're referring to? Who was involved in 7 A. I can tell you, in general, what 7 it -- 8 this triggers when I look at it. 8 A. I can't tell you who all was 9 Q. Okay. 9 involved specifically.You would think 10 A. What was going on is that when I 10 that Rob Sherman would have been. He was 11 was putting together for this memo, it 11 my boss from the department. 12 looked to me like we had provided an 12 But I don't know who else would 13 aggregate limit for burn, and then it 13 have been in that discussion around that. 14 looked like -- it's a pretty vague 14 But I do remember talking about it, 15 recollection, but as I recall, forms 15 because it's, like, Hey, I think somebody 16 changed. 16 screwed up here on how they filled out the 17 And people that marked them up 17 forms. 18 for renewal, it looked like they just 18 Q. Okay. You don't actually say 19 weren't exactly sure what they were doing 19 that in this memo that it looks like 20 and didn't fill out the new form right. 20 somebody screwed up, do you? 21 It kind of bumped along for a 21 MR. SIMKIN: Object to the form. 22 while. And then it looked to me, as I 22 BY MR. FINNEGAN: 23 recall, there was an underwriter -- it 23 Q. If so, can you point out to me 24 just seemed to me it was Rich Mayer before 24 where you do it? That would be helpful. 25 I got to national accounts that noticed 25 MR. SIMKIN: Objection. 13 (Pages 49 to 52) WINTER REPORTING, INC. (212) 953-1414 FILED: ONEIDA COUNTY CLERK 12/02/2022 11:54 AM INDEX NO. EFCA2018-002918 NYSCEF DOC. NO. 621 RECEIVED NYSCEF: 12/02/2022 Page 113 Page 115 1 (CONFIDENTIAL - DANE AUSTIN - 01/25/17) 1 (CONFIDENTIAL - DANE AUSTIN - 01/25/17) 2 EXAMINATION 2 Q. And are you familiar with 3 BY MR. SIMKIN: 3 facultative reinsurance generally? 4 Q. Mr. Austin, during the time that 4 A. Facultative reinsurance? 5 you worked at Utica, was it your belief 5 Generally. 6 that the primary policies Utica sold to 6 Q. And did you have any involvement 7 Burnham in the 1970s and 1980s were 7 with facultative reinsurance while you 8 subject to a products aggregate limit? 8 were at Utica? 9 MR. FINNEGAN: Objection. 9 A. I did. 10 THE WITNESS: Yes, as I recall. 10 Q. And what was your involvement 11 BY MR. SIMKIN: 11 with facultative reinsurance while you 12 Q. And why did you believe that the 12 worked at Utica? 13 primary policies Utica sold to Burnham in 13 A. I placed some, I'm sure. No 14 the 1970s and '80s contained a products 14 specific recollection of that. And 15 aggregate limit? 15 probably taught underwriters what it was 16 MR. FINNEGAN: Objection. 16 supposed to be when I was a reinsurance 17 THE WITNESS: Because, as 17 director there, how underwriters should 18 underwriters, you wouldn't write 18 use facultative.So, in general, around 19 something without an aggregate on it 19 facultative reinsurance, yeah. 20 if it had products liability exposure. 20 Q. And can you tell me some of the 21 BY MR. SIMKIN: 21 reasons that Utica purchased facultative 22 Q. And that was a practice that 22 reinsurance at the time that you worked at 23 Utica had in the 1970 -- 23 Utica? 24 A. Yeah, just a general 24 A. It was, in general, if an 25 underwriting practice. 25 insured needed a limit that was more than Page 114 Page 116 1 (CONFIDENTIAL - DANE AUSTIN - 01/25/17) 1 (CONFIDENTIAL - DANE AUSTIN - 01/25/17) 2 Q. And during the more than 30 2 we were comfortable taking, we had, you 3 years that you worked for Utica, did you 3 know, a limit to how much limit we would 4 ever come across any instance of Utica 4 take out. You would buy fac- on top of 5 selling unaggregated products coverage in 5 that for any given risk. 6 the 1970 or 1980s? 6 Q. And does facultative reinsurance 7 MR. FINNEGAN: Objection. 7 generally follow the terms of the 8 THE WITNESS: Not that I recall. 8 reinsurance policy? 9 BY MR. SIMKIN: 9 A. Yes. 10 Q. So do you have any recollection 10 Q. And why would it be important to 11 of Utica ever telling any potential 11 a purchaser of reinsurance like Utica that 12 purchaser of insurance that it was willing 12 its facultative reinsurance follow the 13 to sell unaggregated products coverage? 13 terms of the reinsured policy? 14 A. No. 14 MR. FINNEGAN: Objection. 15 MR. FINNEGAN: Objection. 15 THE WITNESS: Why would it be 16 BY MR. SIMKIN: 16 important? 17 Q. If Utica did sell unaggregated 17 BY MR. SIMKIN: 18 products coverage, do you think that is 18 Q. Yeah. 19 something that you would remember? 19 A. Because you're looking to come 20 A. Yes. It would have taken an act 20 up right over the coverage, basically 21 of the Pope for that to have happened. 21 higher limits than you're providing 22 Q. What do you mean it would have 22 underneath. It's just the same coverage 23 taken an act of the Pope? 23 above it. 24 A. There is just no way anybody 24 Q. So, you know, you're looking to 25 would have signed off on that. 25 avoid liability gaps that -- 29 (Pages 113 to 116) WINTER REPORTING, INC. (212) 953-1414 FILED: ONEIDA COUNTY CLERK 12/02/2022 11:54 AM INDEX NO. EFCA2018-002918 NYSCEF DOC. NO. 621 RECEIVED NYSCEF: 12/02/2022 Page 145 1 REPORTER CERTIFICATE 2 I, the undersigned, do hereby certify: 3 That DANE AUSTIN was by me duly sworn in 4 the within-entitled cause; that said 5 deposition was taken at the time and place 6 herein named; and that the deposition is a 7 true record of the witness's testimony as 8 reported by me, a disinterested person, and 9 was thereafter transcribed. 10 I further certify that I am not 11 interested in the outcome of the said 12 action, nor connected with, nor related to 13 any of the parties in said action, nor to 14 their respective counsel. 15 IN WITNESS WHEREOF, I have hereunto set 16 my hand this 29th day of January, 2017. 17 Signature: __Requested__Waived_X_Not Requested 18 19 20 21 ______________________________ 22 JESSICA R. WAACK Registered Diplomate Reporter 23 Certified Realtime Reporter California Certified Realtime Reporter 24 New York Realtime Court Reporter New York Association Court Reporter 25 Notary Public, State of New York 37 (Page 145) WINTER REPORTING, INC. (212) 953-1414