The insured had to rely on a policy archivist to establish the terms and conditions of two umbrella policies that were lost. See Canal Ins. Co. v. Montello, Inc., 2012 U.S. Dist. LEXIS 148119 (Oct. 15, 2012). The court excluded the reports and testimony of the expert because he could  not satisfy the requirements of  Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).

   The insured, Montello, distributed products used in the oil-drilling industry. One product contained asbestos. Many individuals sued Montello for alleged exposure to asbestos.

   Montello tendered the suits to its carriers, but one insurer, Continental Casualty Company, denied coverage. After suit was filed, Continental moved to strike the reports and testimony of Montello's insurance archivist, Robert Hughes, who was prepared to testify about the contents of two lost umbrella policies issued by Continental. Under Daubert, the court had to ensure that any and all scientific testimony or evidence admitted was not only relevant, but reliable.

  The court first found the Hughes was qualified. His work in reconstructing lost policies had been held admissible by various courts. His curriculum vita was voluminous. There was no doubt Hughes possessed the knowledge, skill, experience, training,and education related to the general policies and procedures of the insurance industry. However, Hughes had never placed a Continental umbrella policy for an insured. He had reviewed only four or five exemplar Continental umbrella policies in preparation for his report. Nevertheless, Hughes was generally qualified to render an expert opinion as to the existence, terms and conditions of the missing policies.

   The court next looked at the reliability prong. Lacking any clear indication of the form used, Hughes attempted to identify the terms and conditions of the lost policies by offering exemplar form policies used during the periods. The problem was, however, that the lost policies could have been altered by unknown endorsements that added to or limited coverage. The lack of evidence and personal knowledge regarding the breadth of policy forms relevant to this case destroyed the reliability of Hughes' otherwise reliable methods.

      Continental also filed a motion for summary judgment. As the insured, the burden was on Montello to demonstrate the terms of the policy. Secondary evidence could be used. But the court noted that even if it found reliable, admissible evidence supported the policies existence, Monetllo still had to offer reliable evidence of the policies terms and conditions. Failing to do so meant summary judgment should be granted against Montello