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Greycoat Hanover F Street Ltd. Partnership v. Liberty Mut. Ins. Co.

April 24, 1995

GREYCOAT HANOVER F STREET LIMITED PARTNERSHIP, ET AL., APPELLANTS,
v.
LIBERTY MUTUAL INSURANCE COMPANY, ET AL., APPELLEES.



Appeal from the Superior Court of the District of Columbia. (Hon. Rufus G. King III, Trial Judge).

Before Ferren and Ruiz, Associate Judges, and Kern, Senior Judge.

The opinion of the court was delivered by: Ruiz

Ruiz, Associate Judge: Appellant Greycoat is the defendant in at least two suits alleging damage to downtown properties neighboring property owned by Greycoat, on which an oil tank was pierced in May of 1988. In this suit, Greycoat sought a declaratory judgment requiring three insurance companies to provide a defense for Greycoat against the plaintiffs in the underlying actions. The trial court granted summary judgment for the appellees, Liberty Mutual Insurance Company, Maryland Casualty Company, and Pennsylvania Manufacturers' Association Insurance Company ("PMA"). Because Greycoat's notice to all three insurance companies of the pending lawsuits was late as a matter of law, we affirm the judgment of the trial court.

I.

Greycoat is the owner of property located at 1331 F Street, Northwest, in Washington, D.C. Through its agent, Schal Associates Mid-Atlantic, Greycoat entered into contracts in the spring of 1988 with Schnabel Foundations Company, and Metrex Excavating, Inc., for construction at the property on F Street. Schnabel contracted to perform ground retention work for excavation, called sheeting and shoring, and Metrex contracted to perform the excavation and backfill work, including the removal of any existing underground oil tanks. The contracts required Metrex and Schnabel to obtain general liability insurance and to include Greycoat as an additional insured under the policies. Prior to beginning work, both parties were required to produce certificates of insurance evidencing that Greycoat was an additional insured, although neither was required to produce the actual policy for Greycoat to review.

Schnabel purchased a general liability policy from Liberty Mutual, and supplied Greycoat with certificates of insurance listing Greycoat as an additional insured. Those certificates were signed by Liberty Mutual and dated March 30, 1988, April 21, 1988, and June 7, 1988. Metrex purchased a general liability policy from PMA for the period of June 1, 1987, to June 1, 1988, to which Greycoat was an additional insured. Upon termination of that policy, Metrex purchased a similar policy from Maryland Casualty. Greycoat was never actually added to the Maryland Casualty policy as an additional insured, although an agent of an independent brokerage, allegedly without the authority of Maryland Casualty, produced a certificate of insurance naming Greycoat as an additional insured. Based upon the production of the certificates, both Metrex and Schnabel began their work.

Topographic drawings of the property site included in the contract signed by Metrex and Greycoat depicted the existence of an underground storage tank in the alley behind 1331 F Street. Metrex failed to remove the tank at the appropriate time. For reasons not clear from the facts established in the trial court, on May 12, 1988, Schnabel drove two H-piles through and pierced the underground tank. *fn1

In the months and years following the puncture, Greycoat took several steps to protect itself from liability. Shortly after the incident, Greycoat contracted for the isolation and removal of the contamination caused by the punctured oil tank. In January 1990, in anticipation of suits by its neighbors, known for our purposes as the "Akridge" plaintiffs, Greycoat hired the law firm of Skadden, Arps, Meagher, Slate, and Flom, to initiate a litigation strategy. Later that spring, Greycoat and counsel met with representatives of the Akridge plaintiffs to discuss the possibility of an early settlement. With those efforts unavailing, on July 17, 1990, the Akridge plaintiffs filed suit. A few months later, on October 25, 1990, another action was filed, known as the "Westory" suit. The Westory suit also alleged property damage from the puncture and the subsequent migration of oil. Greycoat did not notify Liberty Mutual, PMA, and Maryland Casualty that Greycoat was being sued, and request a defense, until December 20, 1990, December 26, 1990, and March 20, 1991, respec- tively. Each insurance company refused to defend Greycoat in the Akridge and Westory suits. When Greycoat sought a declaratory judgment to force a defense by the appellees, the trial court granted summary judgment, and this appeal followed.

II.

This court reviews the trial court's grant of summary judgment de novo, conducting an independent review of the record to determine whether the appellees were entitled to judgment as a matter of law. Northbrook Insurance Co. v. United Services Automobile Ass'n, 626 A.2d 915, 917 (D.C. 1993). To sustain the judgment, there must be no genuine issue of material fact. Byrd v. Allstate Insurance Co., 622 A.2d 691, 693 (D.C. 1993). Moreover, the court is free, under de novo review, to affirm the order for reasons different from those cited by the trial court, as long as the grounds are apparent from the record and were pleaded by the parties. See Dale Denton Real Estate, Inc. v. Fitzgerald, 635 A.2d 925, 927 (D.C. 1993). We affirm the trial court's judgment on the ground that Greycoat did not provide timely notice to any of the insurance companies. Accordingly, we do not have to answer the question whether Greycoat was, in fact, covered under each of the policies and simply assume, arguendo, that Greycoat was covered by all three. *fn2

III.

Before turning to our analysis of the timeliness of Greycoat's notice to the insurance companies, we address Greycoat's argument that the law of Maryland, and not the District of Columbia, should apply to our Disposition of that issue. Maryland law is more favorable to an insured on the issue of notice in that it requires that the insurer show actual prejudice before it may assert a defense of late notice. See Scottsdale Insurance Co. v. American Empire Surplus Lines Insurance Co., 791 F. Supp. 1079, 1082 (D. Md. 1992). We review choice of law questions de novo. Hercules & Co., Ltd. v. Shama Restaurant Corp., 566 A.2d 31, 40 (D.C. 1989). Courts must apply the law of the forum with the more sub -stantial interest in the litigation. Eli Lilly & Co. v. Home Insurance Co., 246 U.S. App. D.C. 243, 249, 764 F.2d 876 (1985).

In this case, the District of Columbia has the greater interest in the outcome of the litigation. Although the fact that the incident occurred in the District of Columbia is significant, it is, as Greycoat notes, not enough to require application of District of Columbia law. Lee v. Wheeler, 265 U.S. App. D.C. 297, 298, 830 F.2d 1181 (1987). Greycoat's contacts with the District, however, are much greater than that. Greycoat is a District of Columbia limited partnership. The underlying Greycoat construction contracts expressly state an intent to be governed by D.C. law. The underlying Akridge and Westory suits were brought in the District. In comparison, Maryland's interest in this litigation is not great. Although Metrex's insurance policies from Maryland Casualty were brokered and signed in Maryland, and although Metrex, not a party to this action, and Maryland Casualty are Maryland-based, PMA is based in Pennsylvania, and Liberty Mutual is based in Massachusetts. No other significant contacts with Maryland are alleged. Most persuasive on the choice of law question, Greycoat itself brought the suit in the District ...


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