RUTH MILLER, Magistrate Judge.
Before the Court is Great Lakes Reinsurance (UK) PLC's ("Great Lakes") Motion for Summary Judgment [DE 57] pursuant to Rule 56 of the Federal Rules of Civil Procedure and Rule 56.1 of the Local Rules of Civil Procedure of the District Court of the Virgin Islands. Defendants oppose the motion. [DE 63].
This litigation arises out of the total loss of the 2002 catamaran sailboat "Solitude" (the "Vessel"), owned by Glenn Kranig ("Kranig"), and the subsequent denial of Kranig's insurance claim by his insurer, Great Lakes.
Great Lakes issued a policy of marine insurance to Kranig in 2010 (the "2010 Policy") and a second policy in 2011 (the "2011 Policy"). Great Lakes issued both policies through authority granted to Osprey Special Risks Limited ("Osprey"), Great Lakes' underwriting agent. Theodore Tunick & Co., St. Thomas, USVI ("Tunick"), a retail surplus line broker, acted as the agent on behalf of Kranig. Pl.'s Statement of Facts ("SOF") ¶¶ 4, 6-8 [DE 59]; Decl. Beric Anthony Usher ("Usher Decl.") ¶ 8 [DE 59-1].
On April 4, 2010, Kranig submitted an Osprey Yacht Application (the "Application") to Tunick. Pl.'s SOF ¶ 8; Ex. E [DE 59-5]. In the four-page Application, Kranig disclosed himself and Christina Bonwit ("Bonwit") as the sole operators of the Vessel and stated that neither he nor Bonwit had (1) been involved in a loss in the last 10 years (insured or not), (2) been convicted of or pled no contest to a criminal offense, and/or (3) received auto violations or suspensions in the last five years. Pl.'s SOF ¶ 9; Ex. E [DE 59-5]. The Application contained the following statement: "
Pl.'s SOF ¶ 9; Ex. E [DE 59-5].
Following submission of the Application, Great Lakes issued the 2010 Policy, which provided coverage for the period May 20, 2010 to April 1, 2011. Pl.'s SOF ¶ 8.
On April 5, 2011, after the 2010 Policy expired, Kranig completed a Virgin Islands Charter Yacht League ("VICL") "Renewal Questionnaire Effective: April 1, 2011" (the "Renewal Questionnaire"). Pl.'s SOF ¶ 11; Ex. F [DE 59-6]. The one-page Renewal Questionnaire stated that "[a]ny misrepresentation in this application for renewal of insurance will render insurance coverage null and void from inception." Pl.'s SOF ¶ 11; Ex. F [DE 59-6]. The Renewal Questionnaire sought information regarding "any changes in coverage limits," the intended location of the Vessel at various times of the year, whether there had been changes to navigation or safety equipment, and "details of any other changes." Ex. F [DE 59-6]. The Renewal Questionnaire also provided that any items "left blank [on the questionnaire] will result in coverage remaining `as is.'" Ex. F [DE 59-6].
Thereafter, Great Lakes issued the 2011 Policy, dated May 31, 2011, which provided coverage for the period May 1, 2011 to April 1, 2012. Pl.'s SOF ¶¶ 6, 11; Ex. D [DE 59-4].
The 2011 Policy provided, inter alia, the following:
Ex. D, Commercial Yacht Insuring Agreement ("CYIA") §§ 1-2, 9(b), 9(l), 9(q), 9(s).
The 2011 Policy also provided that "Additional Warranties, Terms and Conditions" includes "Survey as per VICL survey warranty." Ex. D at 3 [DE 59-4]. The VICL survey warranty appears in the Amendatory Clauses Effective April 1, 2011 VICL Master Policy Schedule OSPYP/130700 ("Amendatory Clauses"), which provided as follows:
Survey Warranty.
Our definition of a
Ex. D, CYIA Amendatory Clauses [DE 59-4] (emphasis in original).
On September 26, 2007, an out-of-water survey was conducted on the Vessel. Ex. 7 [DE 65-4]; see also Ex. G, Kranig Dep. at 86:17-20 [DE 59-7]. On March 30, 2011, an in-water survey was conducted on the Vessel. Ex. 6 [DE 65-3]. In either May or June 2011, Kranig received a notice from Tunick entitled "
Ex. G at 38 [DE 59-7] (emphasis in original).
On August 6, 2011, Bonwit released the Vessel's mooring in Elephant Bay, Water Island in order to move the Vessel to another mooring. In the process, Bonwit grounded the Vessel, which eventually sank. Pl.'s SOF ¶¶ 14-15.
As part of Kranig's insurance claim proceedings, Great Lakes retained Nautilus Investigations ("Nautilus") to investigate the circumstances surrounding the sinking of the Vessel. Pl.'s SOF ¶ 16. As part of its investigation, Nautilus examined both Kranig and Bonwit under oath.
(1) In 2009, Kranig was charged in the Superior Court of the Virgin Islands in an Amended Complaint in Criminal No. 120/09 with grabbing Bonwit and pulling her "down the stairs" (count one); aggravated assault and battery for strangling her (count two); pushing her off a boat (count three); and simple assault and battery for strangling her (count four). Pl.'s SOF ¶ 22; Ex. N [DE 59-14]. Kranig pled guilty to "simple assault and battery — domesticviolence" in violation of 14 V.I.C. § 299(2) and 16 V.I.C. § 91(b)(1)(2), and a judgment was entered on his guilty plea on June 5, 2009.
(2) In 2006, Bonwit had an automobile accident while driving under the influence of alcohol and drugs and pled guilty to a DUI.
(3) In 2008, Bonwit's license was suspended. Ex. L, State of Florida Driver License Check [DE 59-12].
At the time Kranig signed the Application, he (1) considered domestic violence to be a non-criminal offense and (2) believed his responses regarding Bonwit's driving and criminal background (based on representations by Bonwit) were correct. Pl.'s SOF ¶ 24; Kranig's Dep., Ex. 1 at 21-22, 29-30 [DE 69-1].
Master-Risk, Inc. ("Master-Risk"), a premium finance company, made the 2011 Policy premium payment to Great Lakes on behalf of Kranig pursuant to an Insurance Premium Finance Agreement ("Finance Agreement").
In a November 7, 2011 letter addressed to Kranig, Great Lakes denied Kranig's insurance claim and declared the 2011 Policy void from its inception, citing Kranig's "misrepresentations regarding Bonwit's loss and criminal history" and his "breach [of the] warranty concerning a survey of the Vessel." Ex. P [DE 59-16]; see also Pl.'s SOF ¶ 30. Great Lakes also requested from Kranig payee information so that Great Lakes could tender the full return premium for the 2011 Policy. Ex. P [DE 59-16]; see Ex. D, CYIA §, 9(d) (stating if the insuring agreement is cancelled by Great Lakes, it "will pay [the insured] a pro rata return of premium").
In a November 9, 2011 letter, Master-Risk, referencing the Finance Agreement, advised Osprey and Tunick that Kranig had granted Master-Risk a power of attorney to cancel the Policy and assigned to Master-Risk any monies payable to Kranig. Pl.'s SOF ¶ 31; Ex. Q [DE 59-17]. Great Lakes subsequently tendered the return premium to Master-Risk. Pl.'s SOF ¶ 31; Exs. R & S [DE 59-18; 59-19]. Thereafter, Master-Risk issued a check for the balance of the premium due to Kranig; however, Kranig never cashed the check. Ex. T [DE 59-20]. In September 2012, Master-Risk voided the check because it was "stale-dated." Ex. T [DE 59-20].
District courts of the United States "have original jurisdiction . . . of [a]ny civil case of ... maritime jurisdiction." 28 U.S.C. § 1333(1); see Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310, 313 (1955) ("Since the insurance policy here sued on is a maritime contract[,] the Admiralty Clause of the Constitution brings it within federal jurisdiction."). Accordingly, this Court has subject matter jurisdiction over this matter pursuant to 48 U.S.C. § 1612(a), which provides the District Court of the Virgin Islands with the same "jurisdiction of a District Court of the United States."
Summary judgment is appropriate where an examination of the pleadings, affidavits, and other proper discovery materials before the court demonstrates "there is no genuine dispute as to any material fact," thus entitling the moving party to judgment as a matter of law. FED. R. CIV. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A fact is "material" if proof of its existence or non-existence might affect the outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (explaining "irrelevant or unnecessary" factual disputes do not preclude summary judgment). A factual dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. "In considering a motion for summary judgment, a [] court may not make credibility determinations or engage in any weighing of the evidence; instead, the nonmoving party's evidence `is to be believed and all justifiable inferences are to be drawn in his favor.'" N.H. Ins. Co. v. Diller, 678 F.Supp.2d 288, 295 (D.N.J. 2009) (quoting Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)).
The movant has the initial burden of showing no genuine issue of material fact exists. Gans v. Mundy, 762 F.2d 338, 342 (3d Cir. 1985). Once the moving party meets this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing there is a genuine issue for trial. Celotex Corp., 477 U.S. at 323; see Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991) (stating the non-moving party "may not rest upon mere allegations, general denials, or . . . vague statements"); Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006) ("[S]ummary judgment is essentially `put up or shut up' time for the non-moving party: the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument").
"Marine insurance [policies] are governed by federal admiralty law when there is an established federal rule, and by state law when there is not." Ingersoll Milling Machine Co. v. M/V Bodena, 829 F.2d 293, 305 (2d Cir. 1987). The choice of law provision in the 2011 Policy incorporates this rule as follows:
Ex. D, CYIA § 11 [DE 59-4]. The relevant entrenched admiralty law applicable in part to this matter is the doctrine of uberrimae fidei.
Uberrimae fidei is a longstanding federal maritime doctrine that applies to marine insurance contracts. Id. at 262 (citations omitted); see St. Paul Fire & Marine Ins. Co. v. Halifax Trawlers, Inc., 495 F.Supp.2d 232, 238 (D. Mass. 2007) (noting the United States Supreme Court first recognized the doctrine of uberrimae fidei in M'Lanahan v. Universal Ins. Co., 26 U.S. 170 (1828)). Meaning "utmost good faith," the doctrine requires applicants for marine insurance to "fully and voluntarily disclose to the insurer all facts material to a calculation of the insurance risk," even when this information is not explicitly sought or asked for by the insurer. HIH Marine Servs., Inc. v. Fraser, 211 F.3d 1359, 1362 (11th Cir. 2000); accord Grande v. St. Paul Fire & Marine Ins. Co., 436 F.3d 277, 283 (1st Cir. 2006) ("[U]nder the strict maritime rule of uberrimae fidei, an insured must make full disclosure of all material facts of which the insured has, or ought to have, knowledge . . . even though no inquiry be made."). "A party's intent to conceal, or lack thereof, is irrelevant to the uberrimae fidei analysis" — the insured's failure to disclose voids the contract and its coverage. Cassin II, 544 F.3d at 263.
In M'Lanahan, the Supreme Court stated that the "test of materiality" in the uberrimae fidei context is "whether the risk be increased so as to enhance the premium."
An objective standard for disclosure applies — that is, whether a reasonable insured would believe that a particular fact is material to the insurer's decision regarding whether to accept the risk and on what terms. Cassin II, 544 F.3d at 264 (citing Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 13 (2d Cir. 1986)). The burden of proof of a material nondisclosure or misrepresentation lies with the insurer. Cassin I, 48 V.I. 720, 725 (D.V.I. 2007) (citing Miller v. Republic Nat'l Life Ins. Co., 789 F.2d 1336, 1340 (9th Cir. 1986)). Although materiality is generally a question of fact, summary judgment may be appropriate in certain cases. See Knight, 804 F.2d at 14 (materiality of undisclosed information is ordinarily a jury issue); Grande v. St. Paul Fire & Marine Ins. Co., 436 F.3d 277, 283 (1st Cir. 2006) ("Courts and commentators have long recognized that materiality is primarily a question of fact, the resolution of which is necessarily a function of context and circumstances."); but see AIG Centennial Ins. Co. v. O'Neill, 2010 U.S. Dist. LEXIS 114148, at *19 (S.D. Fla. Oct. 18, 2010) ("Materiality of misrepresentation is a mixed question of law and fact that can be decided as a matter of law if reasonable minds could not differ on the question") (citation omitted).
"There is no specific federal rule governing the construction of marine insurance contracts." Commercial Union Ins. Co. v. Flagship Marine Servs., Inc., 190 F.3d 26, 30 (2d Cir. 1999). Thus, pursuant to the choice of law provision in the 2011 Policy, New York law determines "the scope and validity of the marine insurance policy provisions involved and the consequences of breaching them."
New York courts interpret insurance contracts "to give effect to the intent of the parties as expressed in the clear language of the contract." Goldberger v. Paul Revere Life Ins. Co., 165 F.3d 180, 182 (2d Cir. 1999) (citation and internal quotation marks omitted). "The initial interpretation of a contract is a matter of law for the court to decide." K. Bell & Assocs. v. Lloyd's Underwriters, 97 F.3d 632, 637 (2d Cir. 1996) (citation omitted). "Part of this threshold interpretation is the question of whether the terms of the insurance contract are ambiguous." Alexander & Alexander Servs., Inc. v. These Certain Underwriters at Lloyd's, 136 F.3d 82, 86 (2d Cir. 1998); accord Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co., 375 F.3d 168, 178 (2d Cir. 2004) ("Whether [] a writing is ambiguous is a question of law to be resolved by the courts."); 2 Couch on Insurance 3d § 21:13 (same). If the court finds the provisions of an insurance policy clear and unambiguous, "it should assign the plain and ordinary meaning to each term." Int'l Multifoods Corp. v. Commercial Union Ins. Co., 309 F.3d 76, 83 (2d Cir. 2002). "If an insurance policy is ambiguous, all ambiguity must be resolved in favor of the policy holder. . . ." Mitlof, 208 F. Supp. 2d at 412.
"An ambiguity exists where the terms of an insurance contract could suggest `more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business.'" Morgan Stanley Group, Inc. v. New Eng. Ins. Co., 225 F.3d 270, 275 (2d Cir. 2000). Generally, the terms of insurance policies are read "in light of common speech and the reasonable expectations of a businessperson." Parks Real Estate Purchasing Grp. v. St. Paul Fire & Marine Ins. Co., 472 F.3d 33, 42 (2d Cir. 2006) (citations omitted); accord Throgs Neck Bagels, Inc. v. GA Ins. Co. of N.Y., 241 A.D.2d 66, 671 N.Y.S.2d 66, 68-69 (N.Y. App. Div. 1998) (stating that courts are to construe the terms of an insurance contract as they are used in common speech).
Great Lakes moves for summary judgment, asserting that no coverage is available to Kranig as a matter of law for three reasons. First, Great Lakes argues that pursuant to the admiralty doctrine of uberrimae fidei, the 2011 Policy is void ab initio as a result of Kranig's failure to disclose material information regarding his and Bonwit's criminal and driving backgrounds. Second, Great Lakes contends Kranig breached the survey warranty.
The Application specifically inquired whether any operators (here, Kranig and Bonwit) had "violations/suspensions (including Auto) in [the] last 5 years," "been involved in a loss in the last 10 years (insured or not)" or "been convicted of a criminal offense or pleaded no contest." It is undisputed that in the Application, Kranig answered those questions in the negative. It is also undisputed that Kranig pled guilty to a criminal offense, that Bonwit pled guilty to a criminal offense, and that Bonwit's driver's license had been suspended during the relevant time period. Therefore, the Court finds there is no genuine issue of material fact that Kranig failed to disclose his and Bonwit's criminal and driving histories on the Application.
The Court must next determine whether the nondisclosures were material. In support of its materiality argument, Great Lakes submitted the declaration of Beric Anthony Usher, Osprey's Managing Director and Senior Underwriter, who stated that Great Lakes would not have issued the 2011 Policy had he or "the other Osprey director at that time" known of Bonwit's or Kranig's "true driving and criminal histories." Usher Decl. ¶ 20 [DE 59-1]; Pl.'s Mem. at 8. Therefore, Great Lakes contends the 2011 Policy must be declared void as a matter of law for failure to disclose these facts.
Defendants argue the nondisclosures were not material (and thus would not have affected a decision to insure) based on the following: (1) Great Lakes' alleged failure to consider the "complete background" of each operator; (2) the alleged conversion of the 2011 Policy from a "named operator only" policy to an "any operator with adequate experience" policy which effectively "waived any requirement for approval of vessel operators;" and (3) the lack of an explicit reference in the Renewal Questionnaire to the Application. Defs.' Resp. Pl.'s SOF ¶¶ 10-11, 26 [DE 64]; Defs.' Resp. at 3, 9 [DE 63].
Addressing defendants' first argument, the Application required that Kranig provide details on a "separate sheet" regarding any affirmative responses to the "General Information" section found on page 3 of the Application. While Kranig responded affirmatively to some of the questions within that section, he did not include a "separate sheet." Thus, according to defendants, Great Lakes' acceptance of an incomplete application suggests "a fact finder could conclude that Great Lakes was aware that Kranig had not completely answered the inquiries on the application and elected to ignore the absence of the `complete background.'" Defs.' Resp. Pl.'s SOF ¶ 10 [DE 64] (quoting Pl.'s SOF ¶ 10).
Even assuming Kranig submitted an incomplete application, it is undisputed that the "operators" section of the Application requested criminal, driving and loss history. Thus, Great Lakes' alleged acceptance of an incomplete application did not relieve Kranig of his obligation to disclose the criminal and driving histories of the Vessel's operators when faced with direct questions on the application form. No reasonable trier of fact could conclude otherwise.
Next, defendants contend that the Amendatory Clauses to the 2011 Policy included a "significant and material change" from prior policies because it broadened the definition of "covered person" (i.e., the named operators in the insured's application) to include any person with "adequate experience" operating the vessel. Defs.' Resp. at 9 [DE 63]; Ex. D, CYIA § 1 & Amendatory Clauses [DE 59-4]. Thus, according to defendants, a fact finder could conclude that after April 1, 2011, "Great Lakes allowed any experienced person to operate the vessel, regardless of prior loss history or criminal/driving background." Defs.' Resp. at 9. This argument is untenable given that the identical Amendatory Clauses were in effect at the time Kranig submitted the Application.
Finally, defendants contend the Renewal Questionnaire does not refer to the Application; thus, a question of fact exists as to whether the Renewal Questionnaire and/or the 2011 Policy incorporate the Application, including the questions regarding criminal, driving and loss history. Defs.' Resp. Pl.'s SOF ¶ 11 [DE 64]. In support of this argument, defendant cites the Renewal Questionnaire's warning that "[a]ny misrepresentation in this application for renewal of insurance will render insurance coverage null and void." Id.
Assuming, without deciding, that the Renewal Questionnaire did not incorporate the Application, defendants' argument overlooks uberrimae fidei's unforgiving obligation to disclose material facts even if "not directly inquired into by the insurer." Cassin I, 48 V.I. at 725; see Diller, 678 F. Supp. 2d at 297 (describing the obligations under the doctrine as "inherently harsh"). This case is similar to Allendale Mut. Ins. Co. v. Excess Ins. Co., 992 F.Supp. 278 (S.D.N.Y. 1998). In Allendale, the insured agreed to disclose any survey report recommendations regarding its insured property pursuant to the terms of a six-month contract, which it failed to do. Id. at 281. Upon expiration of the contract, the parties entered into a new contract, which did not include a duty to disclose survey report recommendations. Id. Sometime thereafter, the insured's property was destroyed by fire. Id. The insurer rescinded the second contract in light of, inter alia, the insured's alleged failure to disclose the outstanding survey report recommendations. The insured sued, arguing it was under no such obligation under the express terms of the second contract.
The Allendale court disagreed given the survey clause in the original contract placed the insured "on notice" of its importance to the insurer. Id. The court explained its rationale as follows:
Id. at 283 (internal citations omitted).
Similarly, at the time of signing the Renewal Questionnaire, Kranig was on notice of the importance of Kranig's and Bonwit's criminal and driving records to Great Lakes based on the Application. See id. at 285 ("Materiality is determined with reference to what the []insurer considers important, not the []insured."); accord Deep Sea Fin., LLC v. QBE Ins., Ltd., 2013 U.S. Dist. LEXIS 46151, at *15 (S.D. Ga. Mar. 28, 2013) ("Uberrimae fidei does not allow the insurance applicant to unilaterally determine what is material."). Moreover, Kranig completed the Application just one year prior to signing the Renewal Questionnaire. As such, Kranig "cannot seriously maintain" that "a sufficient passage of time" had occurred rendering this information "stale" such that a reasonable insured could conclude that the insurer no longer considered the information important to the issuance of a policy. Allendale, 992 F. Supp. at 283. In these circumstances, the Court finds Kranig's omissions were material as a matter of law.
Accordingly, there is no genuine issue of material fact that would preclude summary judgment in favor of Great Lakes. The result of Kranig's material omissions is that the marine insurance policy at issue is void ab initio. See Deep Sea Fin., LLC, 2013 U.S. Dist. LEXIS 46151, at *13-14 (holding under the doctrine of uberrimae fidei, marine insurance policy declared void ab initio for corporate insured's failure to disclose that one of its co-owners had filed suit against the other co-owner for "various types of fraud in a federal action filed prior to the insurance issued"); C.N.R. Atkin v. Smith, 137 F.3d 1169, 1171 (9th Cir. 1998) (holding insured's undisclosed criminal conviction for knowingly secreting a boat and possessing an unlawfully obtained certificate of title material as a matter of law); Jackson v. Leads Diamond Corp., 767 F.Supp. 268, 270-71 (S.D. Fla. 1991) (holding under the doctrine of uberrimae fidei, jeweler's block policy declared void ab initio for failure to disclose employee's criminal conviction even though "there were no questions on the application concerning prior criminal records of any employee of the [d]efendant corporation"); cf. La Reunion Francaise v. Christy, 122 F.Supp.2d 1325, 1331 (M.D. Fla. 1999) (holding insured's failure to disclose a twelve year old criminal conviction was not material as a matter of law under the doctrine of uberrimae fidei because the insurance application specifically limited disclosure to "violations/suspensions (including auto) in last 5 years").
Great Lakes also seeks summary judgment against NEBAT, arguing NEBAT, as loss payee under the 2011 Policy, has no rights superior to Kranig. Pl.'s Mem. at 11 [DE 58].
Under New York law, "a loss payee is not protected independently of the insured, absent a clause to that effect in an insurance policy." Cassin II, 544 F.3d at 265 ("In the absence of a provision that the insurance policy shall not be invalidated by any act or neglect of the insured, ... a loss payee may only recover if the insured could have recovered.") (citing Wometco Home Theatre, Inc. v. Lumbermens Mut. Cas. Co., 97 A.D.2d 715, 716, 468 N.Y.S.2d 625 (N.Y. App. Div. 1983)). Here, there is no indication in the 2011 Policy that NEBAT is entitled to any rights superior to Kranig. Indeed, defendants concede at the outset that NEBAT's "rights are derivative of Kranig's." Defs.' Resp. at 1 n.1 [DE 63]. Because the Court finds summary judgment appropriate in favor of Great Lakes and against Kranig, summary judgment is also appropriate in Great Lakes' favor as against NEBAT.
For the foregoing reasons, the Court will grant summary judgment in favor of Great Lakes and declare the 2011 Policy void ab initio. The Court will also dismiss with prejudice defendants' counterclaim. An appropriate order follows.
Rule 56(c)(4) of the Federal Rules of Civil Procedure provides that "[a]n affidavit or declaration used to support or oppose a motion [for summary judgment] must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." FED. R. CIV. P. 56(c)(4). "The Third Circuit has interpreted the rule to require an affiant to state facts, rather than opinions and conclusions." Bell v. Lackawanna County, 892 F.Supp.2d 647, 661 (M.D. Pa. 2012) (citing Maldonado v. Ramirez, 757 F.2d 48, 51 (3d Cir. 1985)).
The Usher declaration meets the personal knowledge requirement as it is based on Usher's review of Kranig's application materials as well as his personal knowledge of Osprey's underwriting policies. See Washington Cent. R.R. Co. v. National Mediation Bd., 830 F.Supp. 1343, 1353 (E.D. Wash. 1993) (explaining personal knowledge can be based on a review of business files and records). The competency requirement is also met because as Managing Director and Senior Underwriter for Osprey, Usher's competency may be reasonably inferred from his high level position. See DirecTV, Inc. v. Budden, 420 F.3d 521, 530 (5th Cir. 2005) (explaining a court may rely upon affidavits in the summary judgment context where the affiants' "personal knowledge and competence to testify are reasonably inferred from their positions and the nature of their participation in the matters to which they swore") (quoting Barthelemy v. Air Lines Pilots Ass'n, 897 F.2d 999, 1018 (9th Cir. 1990)). Finally, the declaration is based on Kranig's insurance application documents which "`would be admissible in evidence' [under the] business records" exception to the hearsay rule. LPP Mortg., Ltd. v. Carpenter, 2012 U.S. Dist. LEXIS 180799, at *8 (D.V.I. Dec. 21, 2012) (quoting FED. R. CIV. P. 56 (c)); FED. R. EVID. 803(6).
Even viewing this evidence in the light most favorable to Kranig, the Court finds Kranig's attempt to create a genuine dispute of material fact unconvincing. During her sworn examination, Bonwit stated, without equivocation, that she pled guilty to a DUI in 2006. Ex. J at 53:15-16 [DE 59-10]; id. at 56:3-4. Moreover, when asked whether she was "driving under the influence of alcohol and drugs," Bonwit responded in the affirmative, attributing her DUI to an adverse reaction between alcohol ("one or two drinks") and her depression medication. Ex. J at 53:4-6, 10-14. Bonwit made no attempt to refute the plain meaning of her testimony. The Court concludes no reasonable jury could find that Bonwit's criminal history does not include a DUI given Bonwit's own sworn admission to the contrary. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (a factual dispute is genuine when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party").
Ex. Q [DE 59-17].
Cassin II, 544 F.3d at 264-65 (citing Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 13 (2d Cir. 1986); Freeman v. Allstate Life Ins. Co., 253 F.3d 533, 536 (9th Cir. 2001); Black's Law Dictionary 998 (8th ed. 2004); L. Buglass, Marine Insurance and General Average in the United States 24 (2d ed. 1981)).
Given the lack of Third Circuit precedent, the Court applies the test espoused by the Supreme Court in M'Lanahan, which is nearly identical in substance to the definition appearing in Marine Insurance & General Average in the United States and to the standard applied in the Eleventh Circuit in HIH Marine, the law which guided in part the Third Circuit's decision in Cassin II.
Moreover, even if the Court ignored Great Lakes' post-discovery evidence, the fact remains that the 2011 Policy specifically indicates the parties' acquiescence to the application of uberrimae fidei to the insurance contract. As explained below, this doctrine required Kranig's disclosure of all material facts notwithstanding Kranig's interpretation of the Amendatory Clauses.
