Nina Y. Wang, United States Magistrate Judge.
This matter comes before the court on the following motions:
(1) Plaintiff Openwater Safety IV, LLC's ("Openwater" or "Plaintiff") Motion for Summary Judgment on Great Lakes' Liability for Insurance Coverage ("Plaintiff's Motion for Summary Judgment"), [#94, filed July 12, 2019];
(2) Defendant Great Lakes Insurance, SE's ("Defendant" or "GLI") Motion to Amend its Counterclaim Under Federal Rules (sic) of Civil Procedure 15 ("Motion to Amend"), [#105, filed August 7, 2019]; and
(3) Defendant's Motion for Complete Summary Judgment Against Openwater Safety IV, LLC ("Defendant's Motion for Summary Judgment"), [#130, filed October 30, 2019].
The undersigned Magistrate Judge fully presides over this matter pursuant to the Parties' Consent [#24] and the Order of Reference dated August 14, 2018 [#25]. After carefully reviewing the Motion to Amend, Plaintiff's Motion for Summary Judgment, Defendant's Motion for Summary Judgment, the entire case file, and the applicable case law, the Motion to Amend is
This civil action arises out of an insurance dispute. Plaintiff filed this suit on June 6, 2018 and asserted two claims for relief. See generally [#1]. Originally, Openwater sought a declaratory judgment under New York law to establish its entitlement to the insurance pay-out and Defendant's liability for bad faith denial of the insurance claim. [Id. at 9-12, ¶¶ 1-6]. Openwater also asserted a claim for breach of contract. [Id. at 12-13, ¶¶ 1-6]. On June 21, 2018, GLI filed a Counterclaim against Openwater. [#9]. Specifically, GLI sought a declaratory judgment to establish that Openwater (a) breached a Letter of Compliance Warranty; (b) misrepresented material facts on its application for insurance coverage; and (c) cannot show that the vessel suffered a "fortuitous" loss. See [id.].
On September 25, 2018, Openwater filed a Motion for Leave to File an Amended Complaint [#34], which this court granted in part and denied in part, see [#45, filed December 12, 2018]. Soon thereafter, Openwater filed an Amended Complaint against GLI wherein Openwater again (a) sought a declaratory judgment to establish its entitlement to the insurance pay-out and GLI's liability to provide insurance coverage for Openwater's loss, and (b) asserted a claim of breach of contract against GLI. [#49, filed December 17, 2018]. This court entered a Scheduling Order on January 23, 2019, setting a deadline for joinder of parties and amendment of pleadings for February 14, 2019. [#57 at 12].
On February 14, 2019, Openwater filed a Motion for Leave to File Second Amended
Plaintiff filed its Motion for Summary Judgment as to Great Lakes' Liability for Insurance Coverage on July 12, 2019. [#94]. GLI subsequently filed, and this court granted, an unopposed motion for an extension of time to respond to Plaintiff's Motion for Summary Judgment. [#95; #97]. On August 7, 2019, GLI filed the instant Motion to Amend/Correct/Modify its Counterclaim against Plaintiff, [#105], and Plaintiff filed its Response to Defendant's Motion to Amend on August 18, 2019, [#112]. The following day, GLI filed a Response to Plaintiff's Motion for Summary Judgment. [#113]. On August 30, 2019, Plaintiff filed its Reply in support of its Motion for Summary Judgment, [#119], and GLI filed a Reply in support of its Motion to Amend, [#118]. GLI filed the instant Motion for Summary Judgment on October 30, 2019. [#130]. Plaintiff filed a Response and GLI a Reply on December 5, 2019 and January 2, 2020, respectively. [#134; #144]. Because the Motions are now ripe, I consider the Parties' arguments below.
This court has discussed in detail this action's background in previous rulings. See, e.g., [#45; #102]. This case arises from a maritime dismasting occurring off the coast of Colombia and involves the vessel's owner, Plaintiff, and its insurer, Defendant. See [#62]. This court draws the following material facts from the record. These material facts are undisputed unless otherwise noted.
In 2018, Openwater purchased the Heavan (the "vessel"), a Lagoon 52F catamaran, and retained Jonathan Sands ("Mr. Sands"), a Naval Architect, Marine Engineer, and Professional Marine Surveyor, to conduct a post-purchase inspection. [#45 at 2]. In March or April 2018,
The application disclosed (a) that Openwater was seeking $780,000 in "first-party property damage coverage" for the vessel, (b) that Openwater intended to employ two crew members, and (c) two operators of the vessel: Evan-Pierre Bernard Genaud ("Mr. Genaud") and Manuel Giovanni
On April 6, 2018, and based on the representations made in the application form, LOC, and Sands Report, GLI issued an insurance policy to Openwater for the vessel and provided Openwater with a Temporary Binder.
PYP/5/COM states in relevant part:
On April 28 or 29, 2018,
The dismasting caused extensive damage to the vessel. [#94 at 3]. Following the dismasting, Openwater filed a claim with GLI. [Id.]. GLI denied the claim on multiple bases. [Id.]. Subsequently, Openwater filed the instant action. See [#1].
In July 2019, Mr. Genaud testified during his deposition that Mr. Yupanqui was at the helm of the vessel at the time of the dismasting and explained that to be "at the helm" meant that Mr. Yupanqui was operating the wheel and throttle of the vessel at the time of the incident. [#113-13 at 45:9-46:6].
"Since the insurance policy here sued on is a maritime contract[,] the Admiralty
Federal maritime law generally enforces contractual choice-of-law provisions. Triton Marine Fuels Ltd., S.A. v. M/V PACIFIC CHUKOTKA, 575 F.3d 409, 413 (4th Cir. 2009); New Moon Shipping Co. v. MAN B & W Diesel AG, 121 F.3d 24, 29 (2d Cir. 1997). Plaintiff also challenges the applicability of the choice of law clause in the Insuring Agreement between the Parties. Specifically, Plaintiff claims that New York law does not apply because it "never agreed to the application of New York law." [#94 at 7]. But as this court previously explained,
[#45 at 10 (citations omitted) (emphasis in original)]. And here, the choice of law provision in the Insuring Agreement provides that:
[#130-10 at 14].
As previously noted, under federal admiralty law a court will generally enforce choice-of-law provisions. See Triton Marine, 575 F.3d at 413. Here, the choice of law provision provides that "any dispute" arising from the Insuring Agreement is governed either by federal admiralty law or the substantive law of the State of New York. [#1-6 at 14]. Plainly, this clause encompasses all potential theories or claims arising from the insurance contract. And all of Plaintiff's claims, and Defendant's counterclaims, arise from the Parties' performance under the insurance contract and subsequent coverage dispute.
Because the parties had "not substantively briefed [the choice of law] issue," in connection with Plaintiff's Motion for Leave to File an Amended Complaint
Yet Plaintiff, in its instant Motion for Partial Summary Judgment, elected not to substantively brief the choice of law issue. Instead, Plaintiff merely "respectfully disagrees with the Court's conclusion in its Order of December 12, 2018 that New York law applies," and promises to "brief the choice of law issue if the Court deems it necessary." [#94 at 7]. Plaintiff has thus waived its choice of law arguments. See, e.g., Skepnek v. Roper & Twardowsky, LLC, No. 11-cv-4102-DDC-JPO, 2015 WL 4496301, at *12-13 (D. Kan. July 23, 2015) (finding that plaintiffs waived their choice of law arguments when they included only a perfunctory acknowledgement of their position on the issue in their summary judgment brief).
In Defendant's Response to Plaintiff's Motion for Summary Judgment, it argues that "for any issue not governed by an established rule of federal admiralty law, New York law will apply." [#113 at 12]. In light of the choice of law provision in the Insuring Agreement and the foregoing case law, this court agrees with Defendant and concludes that (1) federal admiralty law applies, and (2) where there is no applicable federal admiralty law, New York state law shall govern the Parties' claims in this case. I turn now to the merits of the pending motions.
GLI seeks to add two new counterclaims for Openwater's alleged breach of a Named Operator Warranty found in the marine insurance policy and breach of applicable principles of federal admiralty law. See [#105; #105-3]. GLI argues that its proposed amendment is timely and appropriate because the new counterclaims are based on information discovered during a July 17, 2019 deposition of Mr. Genaud, wherein Mr. Genaud testified that Mr. Yupanqui had operated the vessel on numerous occasions and was "at the helm" of the vessel when the dismasting occurred. See [#105]. Based on this new information, GLI subsequently concluded that—by allowing Mr. Yupanqui, an unnamed operator, to operate the vessel—Openwater breached both an express warranty of the policy and duties imposed by federal admiralty law. Openwater opposes GLI's Motion to Amend. For the following reasons, I find that the proposed amendment is timely pursued, that GLI was diligent in filing the instant Motion, and that Openwater has failed to meet its burden of showing that amendment would be futile or would cause substantial prejudice, undue delay, or injustice.
This case proceeded to a Scheduling Conference on January 23, 2019 after several unrelated delays. See [#56]. The Scheduling Order provided that the deadline to seek joinder of parties or amendment of pleadings was February 14, 2019. [#57]. Subsequently, the Parties sought several different extensions of time and modifications to the Scheduling Order. See [#71; #76; #78; #95; #132; #136; #146]. None of these, however, dealt with the deadline to amend pleadings. See [#71; #76; #78; #95; #132; #136; #146]. On August 7, 2019, GLI filed the instant Motion to Amend its Counterclaim Under
The deadline to amend pleadings has long since passed, and accordingly, this court must engage in a two-step analysis in determining whether amendment at this juncture is proper under both Rule 16(b)(4) and Rule 15 of the Federal Rules of Civil Procedure, rather than a single-tiered analysis under Rule 15(a) as advocated by GLI. Compare [#105] with Gorsuch, Ltd., B.C. v. Wells Fargo Nat. Bank Ass'n, 771 F.3d 1230, 1240 (10th Cir. 2014); Pacific Specialty Ins. Co. v. Poirer, 18-cv-00880-NYW, 2019 WL 2912511 (July 8, 2019) (applying the two-step analysis to determine whether amendment was proper). Rule 16(b) provides that a scheduling order "may be modified only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4). "In practice, this standard requires the movant to show the `scheduling deadlines cannot be met despite [the movant's] diligent efforts.'" Gorsuch, 771 F.3d at 1240 (citing Pumpco, Inc. v. Schenker Int'l, Inc., 204 F.R.D. 667, 668 (D. Colo. 2001)). "This burden is satisfied, for example, when a party learns of new information in a deposition or that the governing law has changed." Id. "Rule 16(b) does not focus on the bad faith of the movant, or the prejudice to the opposing party. Rather, it focuses on the diligence of the party seeking leave to modify the scheduling order to permit the proposed amendment." Colo. Visionary Acad. v. Medtronic, Inc., 194 F.R.D. 684, 687 (D. Colo. 2000).
Rule 15(a) provides that leave to amend "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). The court may refuse leave to amend upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment. Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). The party contesting the motion to amend has the burden of proving that the amendment should be refused on one of these bases. Acker v. Burlington N. & Santa Fe R. Co., 215 F.R.D. 645, 654 (D. Kan. 2003).
A proposed amendment is futile if the complaint, as amended, would be subject to dismissal. Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004); see, e.g., id. (futile because claim was subject to statute of limitations); Anderson v. Suiters, 499 F.3d 1228, 1238 (10th Cir. 2007) (futile for failure to allege all elements of cause of action); Lind v. Aetna Health, Inc., 466 F.3d 1195, 1200 (10th Cir. 2006) (futile because amended claim would seek relief barred by statute). In considering whether an amendment is futile, courts apply the same standard used to evaluate a claim under Rule 12(b)(6), accepting well-pleaded facts as true and reviewing solely to determine if the Complaint states a plausible claim for relief as amended. Weingarden v. Rainstorm, Inc., No. 09-2530-JWL, 2012 WL 13026753, at *1 (D. Kan. July 12, 2012). The decision to allow amendment is within the trial court's discretion. Burks v. Oklahoma Publ'g Co., 81 F.3d 975, 978-79 (10th Cir. 1996). The non-moving party bears the burden of showing that the proposed amendment is sought in bad faith, that it is futile, or that it would cause substantial prejudice, undue delay or injustice. Corp. Stock Transfer, Inc. v. AE Biofuels, Inc., 663 F.Supp.2d 1056, 1061 (D. Colo. 2009).
As explained above, whether amendment is appropriate in this case turns on a two-part analysis. First, because the deadline
In Response, Plaintiff challenges GLI's contention that it only learned of Openwater's breach of the Named Operator Warranty during Mr. Genaud's July 17, 2019 deposition. [#112]. Specifically, Plaintiff argues that GLI's Motion to Amend is "too late" because an Emergency Log (provided to GLI on May 2, 2018) stated that Mr. Yupanqui "was on the flybridge" at the time of the dismasting. [Id. at 2]. Although Plaintiff's argument on this point is not particularly cogent, this court interprets Plaintiff's argument to imply that Mr. Genaud's deposition testimony merely repeated the foregoing information provided to GLI in May 2018 via the Emergency Log and, therefore, that the "new information" discovered during Mr. Genaud's deposition does not support amendment.
As an initial matter, this court is puzzled by this argument because it seems contrary to Plaintiff's argument that there is no evidence that Mr. Yupanqui operated the vessel at all. See [#134 at 1]. The Emergency Log cannot simultaneously serve as affirmative notice to GLI that Mr. Yupanqui was operating the vessel sufficient to trigger GLI's obligation to amend its counterclaims, but provide "no evidence" to support the conclusion that Mr. Yupanqui was operating the vessel at the time of the dismasting. In addition, the fact that Mr. Yupanqui "was on the flybridge," without more, does not necessarily establish that he was "operating" the vessel as that term is contemplated by the Insuring Agreement. Indeed, until Mr. Genaud's deposition, "[a]ll GLI knew was that [Mr.] Yupanqui was present on the flybridge." [#118 at 2]. It "did not know if, due to his mere presence on the flybridge, [Mr.] Yupanqui was `navigating' the vessel, in `physical control' of the vessel, or `at the helm' of the vessel." [Id.]. In contrast, Mr. Genaud's deposition testimony provides a more robust explanation of Mr. Yupanqui's role on the vessel. For example, he testified that "Jean-Pierre [Yupanqui] was helming the boat" when the mast came down. [#130-13 at 45:9-46:3]. Immediately thereafter, defense counsel asked Mr. Genaud, "That means he was operating the wheel and the throttle?" [Id. at 46:4-5]. Mr. Genaud responded, "Yes." [Id. at 46:6].
Because a movant's Rule 16(b) "burden is satisfied ... when a party learns of new information in a deposition," Gorsuch, 771 F.3d at 1240, and in light of GLI's filing of the instant Motion within three weeks thereafter, I "find[] that the amendment has been timely pursued with due diligence because Mr. [Genaud]'s deposition occurred on [July 17, 2019] and [GLI] thereafter promptly sought amendment on [August 7, 2019]." Pacific Specialty Ins. Co., 2019 WL 2912511, at *2. Thus, I find that there is good cause for the modification of the Scheduling Order under Rule 16(b)(4). Accordingly, I turn next to whether GLI's proposed amendment is appropriate under the standards of Rule 15.
For example, Plaintiff argues that the proposed amendment is futile because (a) the term "operator" is not defined in the Application; (b) Mr. Genaud's understanding of the term "operator" is consistent with the definition used by the National Oceanographic Atmospheric Administration ("NOAA"), which defines an "operator" as a "master in charge" or "captain"; (c) Openwater had no intent to deceive GLI; and (d) "[t]here is no evidence that Pierre was acting as a co-captain or master in charge." [#112 at 11-12]. But the applicable standard here is whether, as amended, the counterclaim could survive a motion to dismiss under Rule 12(b)(6). In deciding a motion under Rule 12(b)(6), the court must "accept as true all well-pleaded factual allegations... and view these allegations in the light most favorable to the [non-movant]." Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (internal quotation marks omitted). Accepting as true GLI's factual allegations regarding the Named Operator Warranty and the alleged breach of Openwater's duties as imposed by the express terms of the policy and applicable principles of federal admiralty law, as I must, I conclude that counterclaims IV and V could survive a motion to dismiss under Rule 12(b)(6).
Plaintiff also argues that it would be prejudiced by the proposed amendment because the amendment "is based on speculation" and it is "too late for Openwater to retain an expert on the meaning of `Operator' on the insurance application." [#112 at 12]. But expert testimony on the meaning of "operator" on the insurance
For the foregoing reasons, I find that Plaintiff has failed to meet its burden of showing that GLI's proposed amendment is futile or that it would cause substantial prejudice, undue delay, or injustice. Accordingly, GLI's Motion to Amend is
Defendant asserts five counterclaims against Openwater and seeks a declaratory judgment to establish that Openwater (a) breached the Named Operator Warranty; (b) breached a Letter of Compliance Warranty; (c) misrepresented material facts on its application for insurance coverage; and (d) cannot show that the vessel suffered a "fortuitous" loss. See [#105-3; #130 at 26]. Each of the foregoing counterclaims, if successful, would individually and collectively void the insurance policy at issue in this case. For the reasons set forth below, I conclude that Defendant's Motion for Summary Judgment as to its counterclaim that Openwater breached the Named Operator Warranty should be
Summary judgment is appropriate only if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). "A `judge's function' at summary judgment is not `to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'" Tolan v. Cotton, 572 U.S. 650, 656, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "A dispute is genuine if there is sufficient evidence so that a rational trier of fact could resolve the issue either way. A fact is material if under the substantive law it is essential to the proper disposition of the claim." Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011) (internal citations and quotation marks omitted). In other words, a fact is "material" if it pertains to an element of a claim or defense and a factual dispute is "genuine" if the evidence is so contradictory that if the matter went to trial, a reasonable jury could return a verdict for either party. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1987) (citing First Nat. Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). It is the movant's burden to demonstrate that no genuine dispute of material fact exists for trial, whereas the nonmovant must set forth specific facts establishing a genuine issue for trial. See Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010). And the court will "view the factual record and draw all reasonable inferences therefrom most favorably to the nonmovant." Zia
GLI argues that summary judgment in its favor is warranted because Openwater breached the "Named Operator Warranty" provision in the underlying Insuring Agreement. See [#130]. GLI argues that "it makes no difference whether this Court applies federal admiralty law or state law and the Plaintiff in this matter can choose his poison," because both New York and federal admiralty law strictly construe express warranties in marine insurance policies.
As explained above, before the court applies state law, it must first consider whether a well-established, entrenched principle or precedent of substantive United States Federal Admiralty law and practice applies. But here the court does "not need to determine whether to apply federal or state law in this instance because both sources of law lead to the same rule: that marine insurance policy warranties are to be strictly construed." Guam Indus. Servs., Inc. v. Zurich Am. Ins. Co., 787 F.3d 1001, 1004 (9th Cir. 2015).
The rule pursuant to federal admiralty law, if one exists,
New York law requires strict compliance with express warranties in marine insurance contracts and provides that "the breach of an express warranty [in a marine insurance policy], whether material to
GLI's application required that "
Subsection "v" of the Insuring Agreement states that "[i]t is warranted that the Scheduled Vessel will be operated only by covered persons." [#130-10 at 12]. The Insuring Agreement defines "covered person" as "you, and/or any person detailed on your application form which has been submitted by you and approved by us, provided that person has been declared to us in writing as an operator of the Scheduled Vessel." [Id. at 1]. "Operate, operation, operating," as defined by the Insuring Agreement, "means to navigate or be in control of or at the helm of the Scheduled Vessel." [Id. at 2]. And subsection "s" of the Insuring Agreement provides that
[Id. at 12].
GLI argues that Openwater breached the "Named Operator Warranty" on several occasions prior to the vessel's dismasting, thereby voiding the policy from its inception. Specifically, GLI points to deposition testimony of Mr. Genaud that identifies Mr. Yupanqui—importantly, not one of the two "Named Operators" contemplated by the policy—as the operator of the vessel on multiple occasions between issuance of the policy and the dismasting incident. [#130 at 9]. Moreover, argues GLI, Mr. Genaud admitted that Mr. Yupanqui was operating the vessel at the time of the dismasting. [Id.].
In Response, Plaintiff argues that "[t]here is no evidence that Jean Pierre [Yupanqui] operated the Vessel, its wheel, or its throttle while the Vessel was owned by Openwater. None." [#134 at 1]. Plaintiff continues that the "only evidence of what [Mr. Yupanqui] was doing at the time of the dismasting is in the Emergency Log[,]" which states that the "watchman [Mr. Yupanqui] was on the flybridge and had to jump to save his life when the mast fell down." [#134 at 1-2]. Additionally,
Plaintiff appears to continue to argue that the Insuring Agreement is inapplicable, despite this court's previous ruling to the contrary. See [#45 at 11 ("[T]his court finds that despite Plaintiff's insistence that Openwater received no insurance policy, the Temporary Binder and Insuring Agreement comprise the insurance policy central to its claims.")]. This court has already "rejected Plaintiff's contention that Openwater is not bound by the Temporary Binder and Insuring Agreement." [Id.].
Upon review of the record, as discussed above, I find that Mr. Genaud's deposition testimony belies Plaintiff's contention that there is "no evidence" that Mr. Yupanqui operated the vessel in violation of the Named Operator Warranty. At his deposition, defense counsel asked Mr. Genaud the following question: "Who was at the helm [of the vessel] when the mast came down?" [#130-13 at 45]. Mr. Genaud responded that Mr. Yupanqui "was helming the boat." [Id.]. Defense counsel then asked whether this meant that Mr. Yupanqui was "operating the wheel and throttle" to which Mr. Genaud responded in the affirmative. [Id.]. Indeed, Mr. Genaud plainly testified that Mr. Yupanqui was "at the helm" of the boat on the day of the dismasting. And pursuant to the Insuring Agreement, which defines the terms of the policy and its coverage, "operate ... means to navigate or be in control of or at the helm of the Scheduled Vessel." [#130-10 at 12 (emphasis added)]. Thus, it logically follows that regardless of whether the term "operator" was separately defined by the Insuring Agreement, that the individual who navigated or was in control of or at the helm of the Scheduled Vessel was the operator. Indeed, that definition is consistent with plain meaning of the word "operator." See, e.g., Operator, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/operator ("one that operates a machine or device") (last visited Jan. 24, 2020). See also Operate, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/operate ("to perform a function: exert power or influence" or "to cause to function") (last visited Jan. 24, 2020); Village of Bedford Park v. Expedia, 876 F.3d 296, 304 (7th Cir. 2017) ("An operator could also be one who operates; or one who `perform[s] a function' or `exert[s] power or influence.'" (quoting Merriam-Webster Dictionary)). Accordingly, this court specifically interprets the term "operator" as "one who is navigating, in control of, or at the helm of the Scheduled Vessel."
Mr. Genaud is the only individual able to testify on this issue; it appears that it is undisputed that the other crew members aboard the vessel and witness to the dismasting have "disappeared." Compare [#130 at 7] with [#134]. Accordingly, I find that (1) GLI has met its burden of establishing that there is no genuine dispute of material fact to its counterclaim that Openwater breached the Named Operator Warranty, and (2) Openwater has failed to set forth specific facts establishing an issue most properly reserved for trial. Defendant's Motion for Summary Judgment is therefore
In its Motion for Summary Judgment, Plaintiff "requests that the Court declare that the Plaintiff's vessel was covered, and remains covered, by insurance provided by Great Lakes on and from the date of issuance of the [Temporary] Binder." [#94 at
For the reasons stated herein,
