HILLMAN, District Judge.
Presently before the Court are the motions of State National Insurance Company ("State National") for summary judgment on three issues: (1) the adequacy of the County of Camden's ("County") defense and investigation of the underlying Anderson lawsuit [543]; (2) whether the insurance contract entered into between
On October 20, 2008, State National filed a declaratory judgment action against the County asking this Court to declare that it is not liable to provide insurance coverage for a multimillion dollar state court judgment in favor of Nicholas Anderson. Anderson sued the County for injuries he sustained when he drove off the road and into a guardrail owned and maintained by the County. Briefly summarized, State National contends in its complaint that the County's delay in notifying it of the lawsuit, its repeated representation that the case was within the County's $300,000 self-insured retention, its errors in investigating and defending the case, and its revaluation of the case four days into trial, breached the insurance contract's notice provision and the adequate investigation and defense condition to coverage.
The state court case reached its final resolution on November 5, 2010, with Anderson and the County reaching a settlement.
State National's claims against the County include (1) a claim seeking declaratory judgment that there is no coverage for the underlying Anderson claim under State National's insurance policy with the County; (2) a claim for breach of the duty of good faith based on the County's alleged failure to settle the Anderson claim within the County's self-insured retention of $300,000; and (3) a claim for breach of the duty of good faith for the County's alleged failure to tender the self-insured retention.
The claims between State National and the County are trial-ready, with numerous pre-trial motions pending regarding bifurcation and the adequacy and admissibility of experts and evidence. Prior to deciding those trial-related motions and proceeding to trial, however, the Court must resolve State National's motions for summary judgment on three issues.
This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332 because there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75,000. State National is incorporated under the laws of the State of Texas with its principal place of business in Fort Worth, Texas, and the County of Camden is a governmental entity existing under the laws of the State of New Jersey.
Summary judgment is appropriate where the Court is satisfied that the materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, or interrogatory answers, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(a).
An issue is "genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence "is to be believed and all justifiable inferences are to be drawn in his favor." Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir.2004) (quoting Anderson, 477 U.S. at 255, 106 S.Ct. 2505).
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met this burden, the
One of the County's pending counterclaims against State National is that State National breached the parties' insurance contract. The County claims that one element of that breach was State National's failure to provide a defense to the County in the underlying Anderson litigation, as well as State National's failure to investigate Anderson's claims. To refute the County's position, State National contends that the language of the policy is clear and unambiguous: under the Self-Insured Retention ("SIR") Endorsement to the Commercial General Liability Coverage Form ("CGL Form") governing the $10 million policy, the County was obligated to defend itself against, and independently investigate, all claims brought against the County that implicated the insurance policy. Because the Anderson litigation triggered the policy, it was the County's sole obligation under the SIR endorsement to investigate Anderson's claims and provide a defense to those claims. Accordingly, State National argues that it cannot be held to have breached the investigation and defense terms of the insurance contract.
To specifically support its position, State National points to the County's general duties under the CGL Form, as well as the County's duties under the SIR endorsement. Under the CGL Form, State National covenants that it "will pay those sums that the insured becomes legally obligated to pay as damages because of `bodily injury' . . . to which this insurance applies. [State National] will have the right and duty to defend any `suit' seeking those damages. . . . [State National's] right and duty to defend ends when we have used up the applicable limit of insurance in the payment of judgments or settlements" under the policy. (Docket No. 606-1 at 14.) In the event of any "occurrence, claim or suit," the County's relevant duties under the CGL Form are as follows: (1) the County must see to it that State National is notified as soon as practicable of an "occurrence," or an offense which may result in a claim, or a claim is made or "suit" brought against the County; (2) the County must cooperate with State National in the investigation, settlement, or defense of the claim or "suit"; and (3) the County will not, except at its own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than for first aid, without State National's consent. (Docket No. 606-1 at 20-21.)
The SIR endorsement modifies the CGL Form. (Docket No. 606-1 at 49.) The SIR endorsement provides:
(Id.)
State National contends that the SIR endorsement modifies the CGL Form such that the SIR endorsement trumps any obligation State National otherwise had under the CGL Form to investigate and provide a defense for any occurrence, claim or suit. Moreover, State National contends that the SIR endorsement changed the $10 million policy to an excess insurance policy to the $300,000 SIR. Consequently, State National argues that the County cannot maintain any claim that State National breached the insurance contract by not providing it with a defense since the County acted as a primary insurer.
In opposition, the County first argues that the issue is moot, because State National cannot be compelled to provide a defense to an action that has already concluded. Aside from that point, the County argues that the SIR endorsement does not cause the State National policy to be "excess" to its $300,000 SIR, and that the SIR acts, in essence, as a deductible under the $10 million policy. The County also contests that the SIR endorsement modifies State National's duties under the CGL Form to provide a defense and investigation to the extent that it completely eliminates any obligation of State National to provide and pay for a defense.
The principles of insurance contract interpretation are well-settled: (1) the interpretation of an insurance contract is a question of law, (2) when interpreting an insurance contract, the basic rule is to determine the intention of the parties from the language of the policy, giving effect to all parts so as to give a reasonable meaning to the terms, (3) when the terms of the contract are clear and unambiguous, the court must enforce the contract as it is written, and the court cannot make a better contract for parties than the one that they themselves agreed to, (4) where an ambiguity exists, it must be resolved against the insurer, (5) if the controlling language of the policy will support two meanings, one favorable to the insurer and one favorable to the insured, the interpretation
In this case, State National seeks to interpret the SIR endorsement to be a "primary" insurance policy provided by the County to itself, which completely eliminates any of State National's obligations to provide a defense to the County under State National's "excess" policy. In contrast, the County views the SIR as more like an insurance policy deductible that does not vitiate State National's concurrent duty to provide a defense as it contracted to under the CGL Form. The Court finds that the analysis of the language of CGL Form and the SIR endorsement, when read together, results in an interpretation that falls between the parties' two arguments.
As a primary matter, the Court finds it immaterial to the contract interpretation analysis the determination of whether the State National policy should be deemed an "excess" policy, as that term is defined under New Jersey law,
A focus on the language of the SIR endorsement, in tandem with the CGL policy it is endorsing, shows that the County is obligated to investigate and defend any claim or suit against it, so long as the value of that claim or suit is $300,000 or under. State National does not appear to contest that interpretation: "Where, as here, an insurance policy contains a self-insured retention, the policyholder is obligated to defend itself until the retention is fully exhausted." (State National Br., Docket No. 544-1 at 19.) State National, however, extends that proposition to mean that the SIR endorsement eliminates any duty by State National to investigate and defend any claim or suit brought against the County. State National's position is not supported by the SIR endorsement.
The SIR endorsement provides that "as a condition to the issuance and continuation of the Policy," the County is responsible for the "combined insured damages and insured allocated costs and expenses
State National appears to hang its hat on the language in the latter part of paragraph four in the SIR endorsement.
(Docket No. 606-1 at 49, emphasis added.) State National argues that regardless of the implication of the CGL policy beyond the County's $300,000 SIR, this provision places on the County the sole responsibility for the investigation and defense of any and all suits.
The SIR endorsement directs, clearly and unambiguously, that the County is responsible for adequately investigating and defending any occurrence, claim or suit involving bodily injury or property damage that implicates the $10 million dollar policy, but only up to $300,000 for the combined damages and allocated costs and expenses of investigation, defense, negotiation and settlement. Within that $300,000 range, the County must provide an "adequate" investigation and defense, and accept any reasonable settlement.
The application of this procedure under the SIR endorsement is simple for claims whose combined values for damages and costs are concretely maxed out below $300,000. In those instances, the County assumes all responsibilities for the defense and investigation. For claims whose combined values for damages and costs concretely exceed $300,000 from the outset, the County is responsible for the investigation and defense up to $300,000, but because the $10 million policy is implicated immediately, presumably State National would wish to control the investigation and defense from the beginning. Regardless of its decision on when to step in on the $300,000-plus claims, nothing in the SIR endorsement precludes State National from providing the investigation and defense from the beginning, even if the $300,000 is not fully realized in the end.
This case presents the not-so-simple application of the investigation and defense procedure set forth in the SIR endorsement. The County allegedly valued the Anderson case below $300,000, but at some point it realized that the Anderson case would well exceed $300,000. The determination of the tipping point between the County's and State National's obligation to provide an investigation and defense to the Anderson case is rife with disputed facts. State National claims that it was not aware that the Anderson case would exceed $300,000 until it was too late for it to take charge, and that the County did not fulfill its various obligations under the policy, including providing an "adequate" defense.
These disputed facts, discussed in more detail below with regard to State National's motion for summary judgment as to the adequacy of the County's defense, preclude the entry of summary judgment on the issue of which party is liable for the defense costs of the Anderson litigation.
Consequently, State National's motion for summary judgment on the duty to defend must be denied.
State National argues that no disputed material facts exist as to the adequacy of the County's defense of the Anderson litigation. State National contends that it is entitled to judgment in its favor that the County's defense was not adequate, as required by the SIR endorsement, and therefore, no coverage should be afford to the County under the $10 million policy.
The County contests that it did not provide an adequate defense to the Anderson litigation, and argues that numerous disputed material facts on the adequacy of its defense preclude the entry of summary judgment. The County also argues that State National's position that State National does not have to prove prejudice or harm caused by the County's actions in defending the Anderson litigation is not supported by New Jersey law.
Noted above, paragraph 4 of the SIR endorsement contains the provision regarding the County's duty to provide an adequate defense to a claim that may implicate the $10 million policy:
(Docket No. 606-1 at 49, emphasis added.)
As also discussed above, the County's obligation to provide an "adequate defense" ends once a claim exceeds the SIR. The Court has denied summary judgment on the issue of if or when the obligation to provide a defense flipped from the County to State National. Thus, the issues that must be decided by State National's motion
With regard to whether any disputed facts remain regarding adequacy of the defense the County provided in the Anderson litigation, the Court cannot find as a matter of law that there is no genuine issue regarding the adequacy of County's defense.
Among the allegedly undisputed inadequacies argued by State National are (1) the County's failure to assign a lawyer to investigate Anderson's accident and tort claim during the statutory pre-suit notice period; (2) the County's waiver of statutory design immunity in a case that turned on the County's alleged failure to maintain a County road and guide rail; (3) the County's failure to depose Anderson's causation expert, thereby subjecting the County to uncontrolled, unforeseen, and harmful testimony at trial; (4) the County's failure to designate a causation expert, commission an accident reconstruction analysis, or commission a speed analysis to develop any affirmative evidence or to rebut the opinions of Anderson's expert; and (4) the County's express waiver of the right to question Anderson about speeding before the crash, or to introduce evidence of his racing history and aspirations, in a case where excessive speed was the County's primary defense theory. (State National Br., Docket No. 543 at 9.) State National contends that these undisputed errors, among other undisputed actions by the County, show that the County's defense of the Anderson litigation was plainly and obviously inadequate, and no jury could find in the County's favor that it provided an adequate defense.
Not surprisingly, the County proffers numerous proofs to dispute State National's contention that the County's actions were plainly and obviously inadequate. One category of evidence that supports the County's position that its defense met the insurance policy condition that it be "adequate" is the parties' expert discovery. The County outlines how its expert's view of the County's defense counters State National's expert's view of the defense. (See County Br., Docket No. 607 at 18.) These dueling experts alone preclude the entry of summary judgment. See Kannankeril v. Terminix Intern., Inc., 128 F.3d 802, 809 (3d Cir.1997) (admonishing that it is for the trier of fact to determine what weight to give expert opinions, and that the trial judge must be careful not to mistake credibility questions for admissibility questions) (citing U.S. v. Velasquez, 64 F.3d 844, 848 (3d Cir.1995) ("The axiom is well recognized:
The Court can decide, however, the issue of whether State National must demonstrate it was prejudiced or harmed by the County's actions. It is clear that as a condition to coverage, the County has the burden of showing that it provided an adequate defense in the Anderson litigation.
The Court agrees. The principle of "appreciable prejudice" were first enunciated by the New Jersey Supreme Court in Cooper v. Government Emp. Ins. Co., 51 N.J. 86, 237 A.2d 870 (1968). In Cooper, an insured instituted a declaratory judgment action against his insurer to establish GEICO's liability to provide coverage under the policy. The insured was involved in an automobile accident, but GEICO was not notified of the accident for almost two years because the insured believed that no claim would emerge. GEICO disclaimed coverage because of the insured's failure to comply with the notice provision, which was considered a condition precedent to coverage. Cooper, 237 A.2d at 872 (the policy providing that "no action shall lie against the company unless `as a condition precedent' the insured shall have fully complied with all the terms of the policy, of which the notice provision is one"). In holding that GEICO must provide coverage to the insured, the New Jersey Supreme Court found that in order for an insurance company to escape liability, there must be proof that not only was the notice provision of its policy breached, but also that the insurer was appreciably prejudiced by that breach. Id. at 874. The court explained,
Id. at 873-74.
This rationale has been applied repeatedly since the Cooper decision in 1967. See, e.g., Pfizer, Inc. v. Employers Ins. of Wausau, 154 N.J. 187, 712 A.2d 634, 643-44 644 (1998) ("[U]nder traditional contract-law principles, breach of such a contractual condition would excuse the aggrieved parties' performance only if a party was actually prejudiced by the delay. . . . The reason for the New Jersey rule is to protect the interests of policyholders because insurance contracts are contracts of adhesion and policyholders should not lose the benefits of coverage unless the delay has prejudiced the insurance company."); British Ins. Co. of Cayman v. Safety Nat. Cas., 335 F.3d 205, 213 (3d Cir.2003) ("The New Jersey Supreme Court clearly frowns upon literal
The Cooper decision rejected prior case law that did not require that an insurer show appreciable prejudice when an insured breached a condition precedent to insurance coverage. Cf. Whittle v. Associated Indem. Corp., 130 N.J.L. 576, 33 A.2d 866, 868 (N.J.Err. & App.1943) (finding the insurance policy notice and cooperation provisions to be conditions precedent to coverage, and that the insured breach of those provisions permitted the insurer to disclaim coverage); Ebert v. Balter, 74 N.J.Super. 466, 181 A.2d 532, 535 (N.J.Super.Ct.App.Div.1962) (holding that an insured's compliance with a condition precedent "is not tested by the presence or absence of prejudice to the insurer but only by whether the condition has been fulfilled by the insured under all the circumstances").
State National argues that the County's inability to demonstrate that it provided an adequate defense to the Anderson litigation—in other words, that the County failed to comply with a condition precedent to coverage—permits it to disclaim coverage without further inquiry. Putting aside the finding that the adequacy of the County's defense is a question for the jury, as well as putting aside the issue of whether State National became responsible for the defense during the course of the Anderson litigation,
The burden of proof of such prejudice rests on the carrier, Cooper, 237 A.2d at 872, and in determining whether appreciable prejudice exists, each case must turn on its own facts, Allstate Ins. Co. v. Grillon, 105 N.J.Super. 254, 251 A.2d 777 (N.J.Super.Ct.App.Div.1969). Thus, should a jury determine that the County did not meet the condition precedent under the policy that it provided an adequate defense to the Anderson litigation, State National must then demonstrate to the jury how it
The County claims that State National acted in bad faith in refusing to settle the Anderson case when it knew that the County was likely to suffer an excess verdict and that the case could have been resolved within the policy limits. More specifically, the County contends that Meadowbrook,
State National has moved for summary judgment on the County's bad faith counterclaim, and its affirmative defenses based on State National's alleged bad faith. On the same construction of facts to support its other two motions, State National argues that no disputed facts exist to refute that State National did not act in bad faith, and that it was the County who misled State National and did not live up to its bargain under the insurance policy. The County conveys a completely different version of events leading up to the Anderson verdict, including its communications with Meadowbrook, and Meadowbrook's actions and inactions relating to the Anderson claim and trial. The Court does not need to recite in detail the parties' extensive recitation of facts to conclude that the County's properly supported opposition to State National's summary judgment motion demonstrates the existence of material disputed facts on the issue of bad faith. Consequently, the Court cannot enter judgment in State National's favor on this claim.
State National's motion, however, raises an issue of law that the Court must decide. State National argues that its actions should be viewed under the "fairly debatable" standard, which requires a finding that the insurer had no debatable basis to deny coverage, and that the insurer acted with reckless disregard to the facts and proof submitted by the insured. See Pickett v. Lloyd's, 131 N.J. 457, 621 A.2d 445, 454 (1993). The County counters that the "fairly debatable" standard does not apply to this case because that standard is employed in cases involving first-party claims—that is, in cases where an insured claims that the insurer acted in bad faith in paying a claim out to the insured. The
The Court finds that the "fairly debatable" standard does not apply to the analysis of the County's bad faith claim in this case. Even though no bright-line rule has been established in the case law as to whether the "fairly debatable" standard only applies to first-party claims, and there is no specific case that precludes the application of that standard here,
In Pickett, the New Jersey Supreme Court began its opinion by explaining Rova Farms:
The Pickett court then noted, "This case involves what is called a `first-party' claim against an insurance company: a suit by an insured against his insurance company because of its failure to settle his claim, as opposed to a suit based on the insurer's failure to settle a third party tort claim for a reasonable sum." Id. at 450 (quotations and citation omitted). The court concluded, "We are satisfied that there is a sufficient basis in law to find that an insurance company owes a duty of good faith to its insured in processing a first-party claim." Id. To analyze a bad faith claim in this context, the court adopted the "balanced approach" from Rhode Island: "To show a claim for bad faith, a plaintiff must show the absence of a reasonable basis for denying benefits of the policy and the defendant's knowledge or reckless disregard of the lack of a reasonable basis for denying the claim." Id.
The Third Circuit has also noted the distinction between Pickett cases and Rova Farms cases. In American Hardware Mut. Ins. Co. v. Harley Davidson of Trenton, Inc., 124 Fed.Appx. 107, 112 (3d Cir. 2005), the court upheld the district court's application of Rova Farms to an insured's claim that the insurer did not settle a tort claim against the insured in good faith. In rejecting the insurance company's argument that the district court should have employed the Pickett "fairly debatable" standard, the court found that although the issue of whether the insured would be held liable for the third-party plaintiff's injuries was "fairly debatable,"
American Hardware, 124 Fed.Appx. at 112.
According to the County, Meadowbrook refused to perform an independent analysis of the Anderson case or participate in preparing for trial, and after the trial was underway, it refused to participate in settlement talks with Anderson's counsel, even though Anderson's demand was $10 million, and the trial judge had recommended settlement in the $6 million — $8 million range, both within policy limits. Additionally, the County points out
To refute that these claims warrant the Rova Farms analysis, State National argues that because (1) the County maintained full control over the defense of the Anderson litigation, (2) State National was relegated to the sidelines, (3) State National denied coverage on the last day of trial just before the jury returned its verdict, and (4) the County had the ability to settle the case itself, Pickett is applicable.
If this case fit without dispute into that description, then perhaps Pickett would apply. As articulated above, however, dispute remains as to State National's duty to provide a defense to the Anderson litigation, and as to whether the County's "full control" of the litigation was by virtue of its choice or necessity due to Meadowbrook's alleged refusal to get involved. Dispute also remains as to the County's ability to settle the matter on its own without input from State National, particularly when any proposed settlement would exceed the County's SIR and implicate duties and obligations in the CGL policy.
Viewing the evidence of Meadowbrook's actions during the pendency of the Anderson claim and trial in the light most favorable to the non-moving party, the County, it could be found by a jury that Meadowbrook did not "diligently seek a possible settlement to protect the larger interest of its insured," Rova Farms, 323 A.2d at 505, and instead focused on its own interest in its attempt to pay nothing by disclaiming coverage instead of the $10 million policy limit. Thus, this case is different from the Pickett determination of whether State National had a reasonable basis for denying the County's claim for defense and coverage under the $10 million policy, and it is instead more analogous to the Rova Farms analysis.
Under the Rova Farms standard, it is the County's burden to establish bad faith on the part of the State National.
State National's three motions for summary judgment, as well as its motion to strike the County's Local Civil Rule 56.1 statement, are denied. The conclusions of law determined herein relating to the interpretation of the insurance policy and the County's bad faith counterclaim shall govern the claims going forward. The case shall be set for trial, with pre-trial hearings scheduled accordingly to address the parties' pending trial-related motions.
An appropriate Order will be entered.
Courvoisier v. Harley Davidson of Trenton, Inc., 162 N.J. 153, 742 A.2d 542, 548 (1999) (quoting Rova Farms).