4. Motion By Defendant Employers Insurance of Wausau For Summary Judgment Based Upon Lack of Notice
The Wausau policy covered the period October 31, 1981 to October 31, 1982. This policy covered one-half of a $ 4 million limit of liability in excess of a $ 1 million self-insured retention held by Pepco.
The Wausau policy followed form of a North River policy, which had the same notice clause recited in the previous section of this opinion.
Like National Union, Wausau claims it never received notice of the Beltsville incident until a copy of the complaint in the instant case was served upon it. Pepco maintains it complied with the notice provision since it notified Johnson & Higgins of the incident and because Johnson & Higgins forwarded this notice to its correspondent broker in London, Willis, Faber & Dumas ("Willis, Faber").
Pepco maintains notifying Willis, Faber was reasonable notice since the policy at issue contained a "Declarations" page which stated that if a claim should arise under the policy, notice should be given to Willis, Faber.
Pepco has also proffered evidence that in the past, notice of claims on Wausau policies were sent to Johnson & Higgins.
Thus Wausau's request for summary judgment is based on the same grounds as that of National Union: they admit that Pepco notified the broker of the claim, but complain that notice was inadequate since the broker failed to notify the insured. For the reasons given in denying National Union's motion, we deny Wausau summary judgment, and leave it for the fact-finder to determine whether notice was reasonable under the circumstances.
5. Motion of Defendant First State Insurance Company For Summary Judgment Based Upon Lack of Notice
The First State policy at issue in this case also covered the period of October 31, 1981 to October 31, 1982. It provided coverage for $ 5 million in excess of $ 4 million over Pepco's $ 1 million self-insured retention.
First State's policy, however, differs from that of National Union and Wausau in that it contains its own notice provision which states:
The insured upon knowledge of any occurrence likely to give rise to a claim hereunder shall give immediate written advice to the Company.
First State admits that it first received notice of the Beltsville incident and the U.R. suit "on or about" April 17, 1987.
Pepco, however, claims that since the First State policy follows form to the North River policy, the North River's policy language of notice to "any representative" of the company controls. Pepco maintains representatives of First State included its general managing agent, Cameron & Colby, and the wholesale broker utilized by Cameron & Colby, Avreco.
Pepco claims that First State should have received notice of the Beltsville incident in January 1986. Pepco contends that on January 7, 1986, Avreco received from Johnson & Higgins a notice from Pepco, and that Avreco prepared a "buck slip" listing the three insurance companies which should receive a copy of the notice. These companies are Cal Union, Transit Casualty, and First State. Apparently, Cal Union and Transit Casualty have both produced a copy of this notice in discovery, and only First State claims never to have received the notice. Pepco again argues that the course of dealing between First State and Pepco was for Pepco to send notice of claims through Johnson & Higgins.
Thus, once again, the Court is confronted with a situation where the agent failed to forward notice of a claim to the insurer. The motion of First State is analogous to the motions of National Union and Wausau, and for the same reasons is denied. Whether Pepco's attempts at notice were reasonable under the circumstances must be left to the trier of fact.
An order consistent with the foregoing has been entered this day.
ORDER - October 2, 1991, Filed
Upon consideration of the below-listed motions, the accompanying oppositions, and the entire record herein, and for the reasons stated in the Opinion entered on this day, it is by the court this 2nd day of October, 1991,
ORDERED that Defendants' Joint Motion for Partial Summary Judgment Regarding Costs Incurred in Connection with Criminal and Certain Other Proceedings is hereby denied; and it is
ORDERED that Defendants' Joint Motion for Summary Judgment Arising from Pepco's Failure to Obtain Consent for Its Remediation of the Beltsville Site is hereby denied; and it is
ORDERED that the Motion of Defendant National Union Fire Insurance Co. of Pittsburgh, Pa. for Summary Judgment on the Grounds of Lack of Notice is hereby denied; and it is
ORDERED that the Motion of Defendant Employers Insurance of Wausau for Summary Judgment Based Upon Lack of Notice is hereby denied; and it is
ORDERED that the Motion of Defendant First State Insurance Company for Summary Judgment Based on Lack of Notice is hereby denied; and it is
FURTHER ORDERED that the parties shall appear for a status call in this case on the 10th day of October, 1991 in Courtroom 12 at 1:30 p.m.