DOWD, District Judge.
Plaintiffs, MDC Acquisition Co. ("MDC") and GRH Enterprises, Inc. ("GRH") (collectively, "Plaintiffs"), brought this declaratory relief action seeking a declaration that defendant Travelers' Property Casualty Company of America ("Travelers" or "Defendant"), has a duty to defend and indemnify Plaintiffs in a putative class action law suit filed in California. Now before the Court is the motion for summary judgment filed by Travelers' on November 4, 2011. ECF Dkt. #36. Plaintiffs, MDC Acquisition Co. ("MDC") and GRH Enterprises, Inc. ("GRH") (collectively "Plaintiffs") filed an opposition brief on February 7, 2012. ECF Dkt. #43. On February 24, 2012, Travelers filed its reply brief. ECF Dkt. #44.
Magistrate Judge George J. Limbert issued a report and recommendation recommending that the Court grant Travelers' motion. ECF Dkt. #46. Plaintiffs timely filed objections to the Magistrate Judge's Report and Recommendation. ECF Dkt. #47. On June 12, 2012, Defendant filed a response to Plaintiffs' objections. ECF Dkt. #48. On June 26, 2012, Plaintiffs filed a surreply to Defendant's response. ECF #49.
After review of all materials, it appeared to this Court that summary judgment would be appropriate on the issue of Plaintiffs' claim of "Property Damage" coverage, even though this was not argued in
For the following reasons, summary judgment is granted to Travelers.
In June of 2009, Universal Health Resources ("UHR") sued Plaintiffs in a putative class action lawsuit captioned Universal Health Resources, et al. v. MDC Acquisition, et al., Case No. BC415244, in the Superior Court of the State of California for the County of Los Angeles ("underlying action"). In the complaint, UHR alleged that Plaintiffs violated provisions of the Telephone Consumer Protection Act of 1991 ("TCPA"), as amended by the Junk Fax Prevention Act of 2005 ("Junk Fax Act"), 47 U.S.C. § 227, and the regulations promulgated under the Junk Fax Act by the Federal Communications Commission ("FCC"), by sending unsolicited facsimile advertisements to UHR. ECF Dkt. #1-1 at 9, ¶ 1. The complaint specifically alleges that "defendants, in furtherance of promotional campaigns, sent facsimile transmissions of unsolicited advertisements to Plaintiff and the Plaintiff Class in violation of the [Junk Fax Act] and FCC regulations." Id. The complaint explains that there are two affirmative defenses to a Junk Fax Act claim, the prior express invitation or permission defense and the established business relationship defense. Id. at 18, ¶ 20. These defenses may only be invoked by companies that include a notice of opt-out opportunity on their facsimile transmissions. Id. at 18-21, ¶¶ 20, 21, 22. The complaint alleges that none of the facsimile transmissions sent by Plaintiffs contained the opt-out notice. Id. at 21, ¶ 23.
According to the online docket for the Superior Court of California, Los Angeles County, an order granting a motion for preliminary approval of a class wide settlement of the underlying action was filed on April 20, 2012. Magistrate Judge Limbert's Report and Recommendation reflects that, at a telephonic status conference held on that same day, Plaintiffs' counsel informed the Magistrate that a settlement had been reached in the underlying action, and that Plaintiffs would dismiss Defendant, North River Insurance Company, as soon as a final entry of settlement was entered. Plaintiffs' counsel represented to Magistrate Judge Limbert that Plaintiffs settled the case for approximately $6 million, $4.1 million in damages and $1 to 2 million in attorneys fees, which is within the Travelers' policies' limits. ECF Dkt# 46 at 1934.
MDC is primarily engaged in the business of selling supplies to the chiropractic industry. RGH is primarily engaged in the sale of durable medical goods. MDC and RGH are "sister corporations." ECF Dkt. #1-3 at 31. Plaintiffs have been continuously insured by Travelers since at least 2001. ECF Dkt. #43-1 at 1363. At all times relevant to the underlying action,
Upon receipt of the underlying action, Plaintiffs timely tendered the defense of the lawsuit to Travelers. Id. at 1364. Travelers denied Plaintiffs' defense and indemnification under the insurance policies, on the basis the claims in the underlying action did not constitute "bodily injury" or "property damage" under the policies, and were not covered as a "personal injury", "advertising injury", or "website injuries." ECF Dkt. 6-1 at 238-244. Travelers further asserted that the "Unsolicited Communications Endorsement" specifically excludes coverage for TCPA claims, including those under the Junk Fax Act, an amendment to TCPA. Id.
Plaintiffs filed the above-captioned action seeking a declaration that the exclusions upon which Travelers relies to deny defense and indemnification be ruled null and void and of no effect and the policies at issue be reformed to afford Plaintiffs the same coverage that was in existence prior to the promulgation of the exclusions by Travelers. ECF Dkt. #1-3 at 33. Plaintiffs seek reformation of the insurance policies because they contend that they did not receive notice of material changes in the policies.
In its opposition to Travelers' summary judgment motion, Plaintiffs state that "[a] substantial portion of the Plaintiffs' sales are generated by sending fax advertisements to existing customers. MDC alone has approximately 25,000 customers in its database who receive fax advertisements. In fact, discovery in the underlying action reveals that MDC sent 645, 375 fax transmissions during the putative class period." ECF Dkt. #43 at 1342 (internal citations omitted). As a consequence, Plaintiffs contend that the lack of notice they received from Travelers regarding the change in coverage prevented them from either purchasing appropriate coverage from another carrier, or negotiating with Travelers to delete the exclusionary language from the policies for an increased premium. Id. at 1342-1343. Plaintiffs contend the insurance policy should be reformed by removal of the Unsolicited Communications Exclusion.
In its counterclaim, Travelers seeks a declaration that it has no contractual obligation, or any other legal or equitable obligation, to provide Plaintiffs with a defense
Magistrate Judge Limbert's opinion recommended the grant of summary judgment for Travelers. Plaintiffs timely filed objections to Magistrate Limbert's Report and Recommendation.
The district court is obligated to "determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed. R. Civ.P. 72(b)(3), McCombs v. Meijer, Inc., 346, 360 (6th Cir.2005).
Summary judgment should be granted "where the moving party has carried its burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record construed favorably to the non-moving party, do not raise a genuine issue of material fact for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. Johnson v. Karnes, 398 F.3d 868, 870-873 (6th Cir. 2005). The Court must decide, "whether the evidence presents sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
A party seeking summary judgment bears the initial burden and must inform the court of the basis for its motion. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Further, the moving party must identify those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits" which demonstrate the absence of a genuine issue of material fact. Id.
Once the moving party satisfies its burden, the nonmoving party must demonstrate that "there is [more than] some metaphysical doubt as to the material facts." Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir.1993), see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-moving party must present "some significant probative evidence that makes it necessary to resolve the parties' differing versions of the dispute at trial." 60 Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987), see also First Nat'l Bank of Ariz. v. Cities Servs. Co., 391 U.S. 253, 288-290, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968).
A court may grant summary judgment on grounds not raised by a party, if it provides notice and a reasonable time to respond. Fed.R.Civ.P. 56(f).
The Plaintiffs make six objections to Magistrate Judge Limbert's Report and Recommendation recommending summary judgment for Travelers:
1. "[T]he Magistrate completely ignored the fact that Travelers' purported notice of changes to Plaintiffs' renewal insurance
2. "[T] Magistrate ... failed to recognize that the means in which Travelers claims it provided notice to Plaintiffs regarding these significant changes to Plaintiffs' renewal insurance coverage was inadequate pursuant to Ohio law,"
3. "[T]he Magistrate failed to recognize that Travelers' Unsolicited Communications Exclusion does not apply to the underlying class action litigation,"
4. "[T]he Magistrate incorrectly determined that Plaintiffs did not have a viable "Property Damage" claim,
5. "[T]he Magistrate failed to acknowledge Travelers' duty to defend even assuming arguendo no duty to indemnify existed,"
6. "[T]he Magistrate failed to recognize that Travelers' Motion for Summary Judgment argued as to `Advertising Injury' claims only and thus Plaintiffs' `Property Damage' claims, by law, remain pending."
Magistrate Judge Limbert ruled that "the allegations in the underlying action fall squarely within the Unsolicited Communications Endorsement," and that Plaintiffs were given valid and sufficient notice of the Endorsement. This Court agrees with these conclusions. Given these holdings, it was not necessary to determine whether or not the alleged acts constituted an "Advertising Injury" or "Property Damage" under the policy because, even if the acts were otherwise subject to coverage, they were removed from coverage by the effect of the Unsolicited Communications Endorsement. Thus, the Magistrate Judge did not consider whether or not Plaintiff would otherwise have a "Property Damage" claim (Objection #4), because any coverage that might have existed was eliminated by the endorsement. Similarly, the Magistrate Judge did not evaluate Plaintiffs' claims regarding the clarity or sufficiency of the notice regarding the "Web Extend Liability Coverage Form" (Objection #1) because he was not relying upon this form in his reasoning. Using the same reasoning, this Court will consider only whether Plaintiffs received adequate notice of the Unsolicited Communications Endorsement and whether the acts alleged in the underlying lawsuit are excluded from coverage by that endorsement.
With respect to the issue of waiver, Plaintiffs correctly note that Sixth Circuit precedent generally does not allow consideration of arguments first raised in a reply, rather than the moving papers. Hunt v. Big Lots Stores, Inc., 244 F.R.D. 394, 397 (N.D.Ohio 2007). Plaintiffs were not prejudiced: they stated their "Property Damage" argument in their Opposition. ECF Dkt. #43.1346-1349. Moreover, this issue (Objection #6) has been rendered moot, since the Court advised counsel of the possibility it would exercise authority under Fed. R. Civ. Pro. 56(f) to enter summary judgment regarding the "Property Damage" claim and allowed an Plaintiffs an opportunity for additional briefing. ECF Dkt. #53.
The remainder of this opinion will address the issues raised by Plaintiff's Objections ##2, 3 and 5.
The Affidavit of Brenda Wenger states that, as a Travelers' Account Manager,
Ohio follows the common law presumption that a letter has been received, provided it was enclosed in a envelope, correctly addressed and stamped, and placed in the mail. Griffin v. General Accident Fire and Life, 94 Ohio App. 403, 410, 116 N.E.2d 41 (1953); Simpson v. Jefferson Standard Life Insurance Co., 465 F.2d 1320, 1323 (6th Cir.1972).
This presumption may be rebutted, and a question of fact created, if there is testimony the insured did not receive the mail. Almost uniformly, in those cases in which Ohio courts found a question of fact regarding receipt sufficient to defeat summary judgment, the testimony of non-receipt was given by the addressee, the named insured. Kasakaitas v. Floering, 1992 WL 55416 *2 (Ohio App. 6 Dist.) (non-receipt testified to by addressee, the named insured), Smith v. Speakman 2008 WL 5235172 ¶ 1 (non-receipt testified to by addressee, the named insured), Free v. Auto-Owners Insurance Company, 1988 WL 114333 *3 (Ohio App. 6 Dist.) (non-receipt testified to by addressee, the named insured). See also: In re the Yoder Company, Debtor, 758 F.2d 1114, 1120 (6th Cir.1985) (non-receipt testified to by the addressee, the insured's attorney). The Court has found one case in which the named insured was a corporation. In Ekleberry, Inc. v. Motorists Mutual Inssurance Co., 1992 WL 168835, *3, a representative of the company directly testified there was no notification. Thus, in each of these cases there was directly conflicting evidence as to whether or not notice was received by the named insured.
That is not the case at bar.
Plaintiffs' position seems to be that, since Mr. Packer, or some other person designated by the company as responsible for the Plaintiffs' insurance, was not the addressee, there is no "actual notice" to the insured company and Plaintiffs can void the endorsement. That is not the law and the position is untenable. Organizational charts change, people retire, or go on vacation. Travelers cannot be expected
Mr. Packer did, in fact, directly receive a copy of the Policyholder letter, as well as the endorsements to the 2005-2006 policies, excluding violations of the TCPA and its amendment. These were physically delivered by Palmer & Cay to Kurt Packer.
In support of their position, Plaintiffs cite Thomas v. Connally, (1974) 43 Ohio Misc. 5, 332 N.E.2d 87, and various other Ohio cases that recite the well-established proposition that the insured is not required to "search the fine print of each renewal policy" to determine if there has been a modification. Govt. Emp. Ins. Co. v. United States, 400 F.2d 172, 175 (10th Cir.1968).
These cases are inapposite. First, the Policyholder letter was not part of an integrated 573 page document. The notebook provided to Plaintiffs contained multiple insurance agreements, indeed, all the insuring agreements applicable to the Plaintiffs in 2005-2006. The Travelers' comprehensive and excess policies were separate documents in the binder.
But, most importantly, Travelers did not attempt to give notice of the modifications merely by transmittal of an altered renewal policy. Travelers used the Policyholder letter, a separate document that used bold face and clear language, to communicate the exclusion. As will be demonstrated in section I.C. of this opinion, this notice is sufficient to provide actual notice under Ohio law. The separate Policyholder letter, and copies of the endorsements excluding Unsolicited Communications, were included with the renewal policies for Travelers' comprehensive and excess policies. Affidavit of Kurt Packer, ECF Dkt. #43-1 at 1364.
What Plaintiffs are proposing is a radical rule, and one that has never been adopted in Ohio: that a notice otherwise valid and sufficient to provide actual notice of modifications to one policy is rendered void if the notice, endorsements and policy are delivered along with other policies.
There is no case law that supports this position. There is no suggestion Ohio law
Plaintiffs' failure to even flip open the notebook and look at the materials relating to the renewal of the comprehensive and excess liability policies it claims were central to its continued operation should not invalidate Travelers' separate, valid notice of exclusion. And, indeed, self-induced ignorance of an insurer's actual notice cannot be used to frustrate or void modification of the renewal policy. As will be explained below, while insureds are entitled to assume the terms of a renewal policy are the same as their original policy, and failure to read a renewal policy does not defeat reformation, Allstate Insurance Co. v. Zampedro, supra, at *2, knowledge of material change will be imputed to Plaintiffs if actual notice is provided through a "separately attached and clearly worded letter describing the modifications." Id., Allstate Insurance Co. v. Croom, 2011 WL 1327425 (Ohio App. 8 Dist.).
The language of Policyholder letter is clear and direct:
Affidavit of Brenda Wenger, ECF Dkt. 36-17 at 1209, 1212, 1213.
This language plainly and explicitly put the insured on notice that there are changes that will alter the renewal policies and that this is important information that the insured should review with their agent or broker. Driving home the point, in the last paragraph, the Policyholder letter reads:
The letter enclosed specimen copies of two exclusions, the first of which is not at issue here. The second was the Exclusion — Unsolicited Communications. In all bold type, all caps the notice declares:
The policyholder is advised, again in bold type, all caps:
Enclosed in the letter was a copy of the endorsement, which reads:
Id. at 1214 (emphasis added).
Under Ohio law, an insurance company does not give an insured actual notice of a change in coverage by merely sending the policy alone, or with instructions to read the policy carefully. Thomas v. Connally, (1974) 43 Ohio Misc. 5, 8, 332 N.E.2d 87, Allstate Insurance Co. v. Zampedro, 1983 WL 6040 (Ohio App. 11 Dist.). Instead, Ohio courts, following, the 10th Circuit ruling in Govt. Emp. Ins. Co. v. United States, have held that sending an endorsement as a "short, separately attached boldly worded modification," accomplishes actual notice to the insured. Govt. Emp. Ins. Co. v. United States, 400 F.2d 172, 175 (10th Cir.1968), Allstate Insurance Co. v. Zampedro, 1983 WL 6040 *2 (Oh.App. 11 Dist.) (citing Govt. Emp. Ins. Co and stating "a separately attached and clearly worded letter describing the modifications would be more adequate"), Allstate Insurance Co. v. Croom, 2011 WL 1327425 ¶ 12-¶ 15 (Ohio 8 App. Dist) (citing Govt. Emp. Ins. Co. and holding that a notice sent on a separate piece of paper using bold type and capital letters is sufficient to give actual notice to the insured).
Travelers' notice satisfies all of the requirements established in Croom: it is on separate paper, and uses bold type and capital letters to call attention to the important changes described in the notice. Id. Indeed, Travelers' notice even goes farther, by using a separate mailing and attaching the short, clear endorsement itself. Such notice is more than sufficient to give actual notice under Ohio law.
As set forth above, there are two theories that establish Plaintiffs' receipt of the Policyholder letter as a matter of law. First, as set forth in I.A., there is the unrebutted presumption that the Policyholder letter mailed March 11, 2005 to the named insured was received by the named insured, Edgewater Surgical, Inc. Second, as set forth in I.B., Plaintiffs concede they received physical delivery of the Policyholder letter in a notebook containing their insurance policies for 2005. And, as demonstrated in Section I. C., the Policyholder letter, by its form and language, gave actual notice of the modification of the renewal policy under Ohio law. The result is the outcome reached by Magistrate Judge Limbert: Plaintiffs had actual notice of the Unsolicited Communications Endorsement
Plaintiffs try to avoid this conclusion by arguing that "actual notice" requires that the Travelers confirm that the insured company — specifically, the individual within a company tasked with handling insurance — actually got and read the notice of endorsement before they can issue a valid renewal. For this, Plaintiffs in their Brief in Opposition to summary judgment rely upon a 1914 case, J.R. Roberts & Son v. National Ins. Co., 2 Ohio App. 463 (1914), and Allstate Ins. Co. v. Zampedro, supra. Neither case supports their extreme position.
In J.R. Roberts, the dispute respected a renewal that inserted an "iron safe" clause in the policy. The insurance company claimed that its local agent, E.M. Roberts, met with a member of the company, Walter Roberts, and provided oral notice of this change, along with a copy of the clause. Walter Roberts denied anything was said about an iron safe, or any safe, in his discussions with the agent and testified that he did not receive a copy of the clause. With this disputed evidence, and noting in support of Walter Roberts's testimony the fact that the company did not own an iron safe, the Ohio Court of Appeals concluded the insurance company had not demonstrated that plaintiffs had been given notice of the change. J.R. Roberts, supra, 1914 WL 1608, at *4.
In Zampedro the modification at issue dealt with rights of appeal after certain uninsured motorist arbitration hearings. The insurance company prepared a form describing the change, but the form was sent with plaintiff's renewal slip on October 1, 1980 — and the accident occurred September 20, 1980. The court appropriately concluded the insured had not been given actual or constructive notice before October 1, 1980. Zampedro, supra, at *2.
Both of these cases are consistent with the proposition that "actual notice" under Ohio law is timely notice, clearly worded and presented in a sufficiently bold manner as to bring the insureds' attention to the modification. The case that illustrates this, and is most clearly on point, is the 2011 case of Allstate Insurance Co. v. Croom, supra.
In Croom, Allstate's policy excluded coverage for claims arising from exposure to lead. Croom contended Allstate did not provide adequate notice of the exclusion when it was added to the policy, and that this invalidated the exclusion.
The evidence in the case was an affidavit by an Allstate employee establishing that notice of the endorsement was mailed to defendant Croom. Croom admitted he would have no basis to dispute the mailing, and that he "probably" received the policies and notices but didn't read them. On appeal it was contended that, without Croom's actual knowledge of the changes, the changes were unenforceable. Croom, ¶ 10.
The Court of Appeals of Ohio, Eighth District, disagreed: "Knowledge may be imputed to the insured, if the notice was presented in such a way as to call attention to any material change in the terms of the contract." Croom, ¶ 12 While noting that the issuance of a policy alone, or instructions to carefully read the policy, does not constitute adequate notice, the court stated.
Croom is directly on point with this case. Here, as in Croom, there is no issue of material fact regarding receipt. Here, as in, Croom the notice provided satisfied Ohio law. Here, as in Croom, the insured simply didn't read the notices sent. Here, as in Croom, Plaintiffs continued paying premiums on the policy after the modification. The result here should be the same as in Croom: Plaintiffs should be held to have imputed or constructive knowledge of the Policyholder letter and be bound by the Unsolicited Communications Endorsement.
Finally, while cancellation is treated somewhat differently, it should be noted that there is one case from the Ohio Court of Common Pleas in which "the controlling question" was whether actual receipt of a notice of cancellation by the insured, as opposed to proof of mailing, is a prerequisite for policy cancellation. Judge Sweeney held that, as a matter of public policy, the court should not allow cancellation of an insurance policy to be valid upon proof of notice of mailing, but should require proof of actual receipt. Smith v. Globe American Casualty Co., 38 Ohio Misc. 82, 313 N.E.2d 21 (1973). The judgment was affirmed for reasons other than those stated, and subsequent opinions have found Smith inconsistent with Ohio Supreme Court authority. Canter v. Christopher, 80 Ohio App.3d 465, 467, 609 N.E.2d 609 (1992).
The Court finds there is no responsibility for Travelers to defend the underlying action. Since the duty to indemnify is narrower than the duty to defend, Ferro Corp. v. Cookson Group, 561 F.Supp.2d 888, 893, 894 (N.D.Ohio 2008), this holding necessarily means Travelers' has no responsibility to indemnify Plaintiffs.
The language of the Unsolicited Communications Endorsement is plain. The endorsement excludes "communications which are made or allegedly made in violation of the Telephone Consumer Protection Act
The underlying action is a complaint for violations of the Junk Fax Act and its implementing regulations. Class Action Complaint, ECF # 1-1, ¶ 1. Plaintiffs argue that, since the endorsement did not mention regulations, Travelers has a responsibility
Plaintiffs also argue that Travelers' should defend the underlying action because some of their faxes were solicited, and the exclusion only applies to unsolicited communications. This argument fails because, in fact, the endorsement excludes communications "which are made or allegedly made" in violation of the TCPA and its amendments. All of Plaintiff's faxes were allegedly made in violation of the Junk Fax Protection Act. While the Act has two defenses — "prior express invitation or permission" and an "established business relationship" — Plaintiffs cannot avail themselves of either since their faxes did not contain an Opt-Out Notice. The underlying action explains the situation quite clearly: "[A]ny sender of a junk fax who fails to comply with the Opt-Out Notice Requirements has, by definition, transmitted an `unsolicited advertisement' under the JFPA. This is because such a sender can neither claim that the recipients of the faxed advertisement gave `prior express invitation or permission' to receive the fax, nor successfully invoke the BBR [established business relationship] defense..." ECF Dkt. # 1-1, at 21, ¶ 22. Plaintiffs did not comply with the Opt-Out Notice Requirements; all of their faxes were, by the terms of the law, "unsolicited."
Every allegation in the underlying action is of a violation of the TCPA and its amendments and any lawsuit that alleges a violation of the TCPA, and its amendments, is excluded from coverage by the Unsolicited Communications Endorsement. Plaintiffs have no defenses. "The duty to defend arises when the complaint contains an allegation in any one of its claims that could arguably be covered by the insurance policy." Ferro Corp. v. Cookson Group, 561 F.Supp.2d at 898 (citing Cincinnati Ins. Co. v. CPS Holdings, Inc., 115 Ohio St.3d 306, 307, 875 N.E.2d 31 (2007.)) But, there is no responsibility to defend when "there is no set of facts alleged in the underlying complaint against the insured that, if proven true, would invoke coverage." Ferro Corp, supra at 898. That is the situation in this case, and Travelers has no duty to defend or indemnify with respect to the underlying action.
For the foregoing reasons, summary judgment is granted in favor of Travelers. Case closed; parties to bear their own costs.
IT IS SO ORDERED.
Travelers issued umbrella policies to Plaintiffs for annual policy periods from May 15, 2006 through July 15, 2010. These included Policy No. YSM-CUP-290D6579-TIL-06 (effective May 15, 2006 to May 15, 2007); Policy No. YSM-CUP-291D057A-TIL-07 (effective July 15, 2007 to July 15, 2008); Policy No. YSM-CUP-291D057A-TIL-08 (effective July 15, 2008 to July 15, 2009); and Policy No. YSM-CUP-291D057A-COF-09 (effective July 15, 2009 to July 15, 2010). MDC also alleges there was an additional Policy No. YSMCUP-290D6579-TIL-07 (effective May 15, 2007 to May 15, 2008). Copies of the insurance policies are attached as exhibits to Travelers' motion for summary judgment. ECF Dkt. 36-4-13.
