The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
This is the second case in which National Railroad Passenger Corporation ("Amtrak") seeks excess insurance coverage from several of its "excess liability" insurers. See National R.R. Passenger Corp. v. Lexington Ins., 365 F.3d 1104 (D.C. Cir. 2004). Defendants claim that plaintiff's suit is barred by statute of limitations or by laches and have moved to dismiss the complaint for failure to state a claim upon which relief can be granted. For the reasons stated below, the Court concludes that defendants' motion must be denied.
In September 1999, Amtrak was held liable for $25 million in a personal injury suit brought by Kimberly Acorn, a passenger in a car that collided with an Amtrak train at a public railroad crossing. Amtrak paid this amount and seeks reimbursement from defendants, who insured Amtrak for personal injury liability in excess of $10 million. Amtrak was insured under two sets of policies, the first covering the policy period October 1, 1996 through September 30, 1997 (the "1996-97 policies") and the second covering the period October 1, 1997 through September 30, 1998 (the "1997-98 policies"). In a prior related action, Amtrak unsuccessfully sought reimbursement from the insurers subscribing to the 1997-98 policies (the "1997-98 insurers"). See id., aff'g Nat'l R.R. Passenger Corp. v. Lexington Ins. Co., Mem. Op., Civ. No. 01-1815 (D.D.C. May 20, 2003) ("Mem. Op.") (granting summary judgment to defendants). The Court of Appeals held that "Amtrak may not recover under the 1997-98 polic[ies]" but "express[ed] no view on whether Amtrak is entitled to reimbursement under the 1996-97 polic[ies]." Id. at 1105. Amtrak has now brought suit claiming that the 1996-97 insurers have breached their obligations. The 1997-98 insurers in the prior action and defendants in this action are largely the same, as is the policies' relevant policy language. ( See Def.'s Statement of P. & A. Supporting Their Mot. to Dismiss (hereinafter "Mot.") at 5, 28 n.12.)*fn1
On September 27, 1999, the day of the Alcorn verdict, Amtrak sent notice to Amtrak's insurers through a broker indicating that Amtrak was covered under the 1996-97 policies. ( See Mem. Op. at 5). Shortly thereafter, on October 15, 1999, Amtrak's broker sent notice to the 97-98 insurers suggesting instead that Amtrak was covered under the 1997-98 policies. (Decl. of Frederick J. Wilmer in Supp. of Defs.' Mot. for Partial Summ. J. (filed in prior action) Ex. 6.) (Amtrak indicated in the prior action that the first notice letter was in error.) ( See Mem. Op. at 5 n.5.) Over the next several years, while post-trial motions and an appeal by Amtrak were pending, the insurers' counsel "purported to reserve its clients' rights and to investigate potential coverage issues." (Compl. ¶ 18.)
In a letter dated April 6, 2001, the insurers' counsel set out three "coverage positions" based on their investigation. Coverage Position 2 stated that Amtrak had failed to timely notify the insurers in accordance with either set of policies, negating its coverage under both. (Ballaine Decl. Ex. A, Letter from Frederick J. Wilmer to William G. Ballaine, Apr. 6, 2001 (hereinafter "April 6 letter"), at 3.) The letter also maintained that the parties' rights and obligations were dictated by the 1996-97 policies, rather than the 1997-98 policies, because "Amtrak's claim agent was aware of the Alcorn accident within days after it occurred [on August 27, 1997]." ( Id.
Through a series of subsequent letters in May and June, Amtrak's counsel asked that the insurers retract the positions laid out in the April 6 letter. ( See Ballaine Decl. Ex. A.) In a May 4, 2001 letter, Amtrak informed the insurers' counsel that, in response to the April 6 letter, it had "reluctantly conclude[d] that Excess Insurers have been acting in bad faith with respect to this Claim." (Ballaine Decl. Ex. A, Letter from Ballaine to Wilmer, May 4, 2001 (hereinafter "May 4 letter"), at 2.) Amtrak warned that the insurers' failure to discharge their "good faith contractual obligations to Amtrak under the 1998 policies [was] likely to have serious consequences," and that Amtrak would pursue "all available judicial redress." ( Id. at 11.) After two more requests for retraction on June 1 and June 28, the insurers responded on July 6 to withdraw their third coverage position but "decline[d] Amtrak's request to withdraw their [other two] coverage positions." (Ballaine Decl. Ex. A, Letter from Wilmer to Ballaine, July 6, 2001, at 1.)
On August 9, 2001, Amtrak's counsel informed the insurers that Amtrak would soon be obligated to pay the Alcorn judgment, and asked the insurers' counsel to " immediately advise us if and to what extent your insurer clients wish to participate in the payment process...." (Ballaine Decl. Ex. A, Letter from Ballaine to insurers' counsel, Aug. 9, 2001, at 1) (emphasis in original). The insurers' counsel responded on the same day, stating that "at this stage and in light of their prior coverage positions, our clients do not intend to participate in what you refer to as the 'payment process.'" (Ballaine Decl. A, Letter from Wilmer to Ballaine, Aug. 9, 2001.) On August 27, 2001, Amtrak filed a complaint for coverage under the 1997-98 policies. The next day, Amtrak paid $16.1 million in partial satisfaction of the Alcorn judgment. This payment satisfied the policies' Condition 6, which requires a payment in excess of $10 million by Amtrak before the insurers' contractual obligations are triggered.*fn2 ( See Opp'n at 5.) On August 30, 2001, Amtrak demanded indemnity from the 1997-98 insurers. ( See Ballaine Decl. Ex. A, Letter from Dale Stein, Amtrak Treasurer to 1997-98 Insurers, Aug. 30, 2001.)
This Court granted summary judgment to the 1997-98 insurers in the prior action on the grounds that the Alcorn claim was not properly allocated to the 1997-98 policies. (Mem. Op. at 1-2.) The Court of Appeals affirmed this decision on March 7, 2004. Thereafter, Amtrak demanded indemnification from the 1996-97 insurers on August 13, 2004, and filed this lawsuit on August 26, 2004. (Compl. ¶ 26.) In Count I, plaintiff seeks a declaratory judgment that defendants cannot deny their obligations based on any "coverage ground." (Compl. ¶¶ 28-31.) In Count II, plaintiff seeks compensatory damages for breach of contract. (Compl. ¶¶ 32-33.)
Defendants move to dismiss the complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted. A defendant may raise the affirmative defense of a statute of limitations via a Rule 12(b)(6) motion when the facts giving rise to the defense are apparent on the face of the complaint. Blackmon-Malloy v. U.S. Capitol Police Bd., 338 F. Supp. 2d 97, 101 (D.D.C. 2004). The allegations in plaintiff's complaint are presumed true and all reasonable factual inferences should be construed in plaintiff's favor. Maljack Prods., Inc. v. Motion Picture Ass'n of Am., Inc., 52 F.3d 373, 375 (D.C. Cir. 1995); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979). Defendants submit, and plaintiff does not contest, that the Court may also consider documents in the record from Amtrak's prior action without converting the motion to dismiss into a motion for summary judgment by taking judicial notice of these records.*fn3 (Mot. at 13.) If "no reasonable person could disagree on the date" on which the cause of action accrued, the court may dismiss the claim on statute of limitations grounds. U.S. ex rel. Purcell v. MWI Corp., 254 F. Supp. 2d 69, 73 (D.D.C. 2003).
II. Statute of Limitations
Defendants claim that this action is barred by the District of Columbia's three-year statute of limitations for contract claims. Because plaintiff's contract claim did not accrue until defendants' performance on the contract was due, which was at the earliest less than three years prior to its ...