Opinion
CIVIL ACTION NO. 3:02-CV-1881-P
February 25, 2004
MEMORANDUM OPINION AND ORDER
Now before the Court are Plaintiff Travelers Indemnity Company of Connecticut's ("Plaintiff" or "Travelers") Motion for Summary Judgment, filed July 15, 2003 and Defendant Presbyterian Healthcare Resources' ("Defendant" or "PHR") Motion for Summary Judgment, filed July 15, 2003. After careful consideration of the Parties' briefing, evidence, and applicable law, the Court hereby DENIES Plaintiff's Motion for Summary Judgment and GRANTS Defendant's Motion for Summary Judgment.
FACTS
This case involves an insurance coverage dispute concerning a claim for coverage by PHR, a hospital, under its general liability policy with Travelers, its insurance company. The insurer/Plaintiff — Travelers — filed a declaratory judgment action seeking a declaration that it owes no duty to defend or indemnify its insured/Defendant — PHR — and several defendant physicians. PHR filed a counterclaim against Travelers for breach of contract, breach of the duty of good faith and fair dealing, and certain insurance code violations. The Court stayed discovery on PHR's extra-contractual claims and instructed the Parties to address PHR's coverage claims in these summary judgment motions.
Both Parties have filed summary judgment motions concerning Traveler's duty to defend PHR and the defendant physicians, who are alleged to be members of the hospital's peer review committee, in an underlying lawsuit (" Poliner Lawsuit").
The Poliner Lawsuit involves claims by physician/plaintiff Poliner against PHR and ten individual physicians for malicious peer review, conspiracy to restrain competition and inhibit trade, breach of contract, business disparagement, damages to reputation, and conspiracy.
DISCUSSION
A. LEGAL STANDARD.
The Court follows Texas law when determining whether an insurance company has a duty to defend its insured. See Essex Ins. Co. v. Redtail Prods., Inc., No. Civ. A. 3:97-CV-2120-D, 1998 WL 812394, at *1 (N.D. Tex. Nov. 12, 1998) (Fitzwater, J.) Under Texas law, the "complaint allegation rule," also known as the "eight corners rule," requires that an insurer's duty to defend be determined solely from the face of the plaintiff's complaint in the underlying action and the language of the insurance policy. See id.; Gemmy Indus. Corp. v. Alliance Gen. Ins. Co., 190 F. Supp.2d 915, 918 (N.D. Tex. 1998); National Union Fire Ins. Co. v. Merchants Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex. 1997). The court compares the four corners of the insurance policy with the four corners of the plaintiff's pleading to determine whether any claim alleged by the pleading is potentially within the policy coverage. See Guaranty Nat'l Ins. Co. v. VIC Mfg. Co., 143 F.3d 192, 193 (5th Cir. 1993).
"Pursuant to this rule, an insurer has a duty to defend its insured when any claim advanced by the plaintiff in the underlying litigation potentially states a cause of action within the coverage of the insurance policy, irrespective of the merits of the claim." Essex, 1998 WL 812394, at *1; see Merchants, 939 S.W.2d at 141. When reviewing the underlying pleadings, courts must focus on the factual allegations pled rather than on the legal theories alleged. See Merchants, 939 S.W.2d at 141. "Those allegations are to be considered `without reference to the truth or falsity of such allegations.'" King v. Dallas Fire Ins. Co., 85 S.W.3d 185, 191 (Tex. 2002).
"Even if the plaintiff's complaint alleges multiple claims or claims in the alternative, some of which are covered under the policy and some of which are not, the duty to defend arises if at least one of the claims in the complaint is facially within the policy's coverage." Lafarge Corp. v. Hartford Casualty Ins. Co., 61 F.3d 389, 393 (5th Cir. 1995).
The insured bears the initial burden of showing that there is coverage, while the insurer bears the burden of proving the applicability of any exclusions in the policy. See VIC, 143 F.3d at 193. Once the insurer has proven that an exclusion applies, the burden shifts back to the insured to show that the claim falls within an exception to the exclusion. See id.
"It is well established that insurance policies are to be strictly construed in favor of the insured in order to avoid exclusion of coverage." American Guarantee and Liability Ins. Co. v. Shel-Ray Underwriters, Inc., 844 F. Supp. 325, 329 (S.D. Tex. 1993) (citing Puckett v. U.S. Fire Ins. Co., 678 S.W.2d 936, 938 (Tex. 1984)). Likewise, courts resolve all doubts regarding a duty to defend in favor of the duty. See King v. Dallas Fire Ins. Co., 85 S.W.3d 185, 187 (Tex. 2002).
B. ARE THE INDIVIDUAL PHYSICIANS INSUREDS UNDER THE INSURANCE POLICY?
PHR argues that PHR and all ten of the individual physician defendants are insureds under the policy at issue. (Def.'s Mot. at 7.) The policy at issue identifies PHR as the "named insured" under the policy and identifies PHR's "employees" as insureds under the policy. Travelers has acknowledged in correspondence with PHR that Defendant Knochel is an insured because he is an employee of the hospital. ( See Def.'s App. at 131.)
Specifically, the policy states "[II][2] Each of the following is also an insured: (a) Your `employees,' other than your `executive officers,' but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business." (Def.'s App. at 28-29.)
PHR contends that the remaining individual defendant-physicians are "are clearly insured under the" Club Members endorsement, which is a one-page endorsement that is entitled "Additional Insured — Club Members" and amends the policy to include as an insured "any of [PHR's] members, but only with respect to their liability for [PHR's] activities or activities they perform on [PHR's] behalf. (Def.'s Mot. at 8; Def.'s App. at 47.)
PHR argues that because the underlying complaint describes each of the remaining individual-defendant physicians as a "member" of the hospital's staff and a "member" of the peer review committee, they fall within the Club Member's endorsement that insures "any of PHR's `members.'" (Def.'s Mot. at 10; Def.'s App. at 162-64, 180.) Moreover, PHR argues that because the peer review statutes relied on by Poliner for his causes of action refer to participants on a peer review committee as "members," the Club Members endorsement is applicable.
PHR also argues that the Court should apply the "axiom of Texas law that a document's substance controls over its title." (Def.'s Mot. at 11 (emphasis in original).) In so doing, the Court should ignore the plain language of the endorsement's title ["Additional Insured — Club Members"] and look only to the content of the text, which provides coverage to all PHR "members."
First, contrary to PHR's assertions, the law does not require a court to ignore the title of a contract provision that can be read consistent with its accompanying text, In fact, there is an axiom in Texas law that courts "must attempt to give effect to all contract provisions so that none will be rendered meaningless." Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex. 1998) (insurance contract interpretation); see Gonzalez v. Columbia Hosp., 207 F. Supp.2d 570, 574075 (N.D. Tex. 2002) (Solis, J.); Universal C.I.T. Credit Corp. v. Daniel, 243 S.W.2d 154, 157 (Tex. 1951). In this case, the title of the endorsement at issue does not conflict with its text and the Court can give effect to both the title and the text so that neither will be rendered meaningless. For this reason, the Court is not persuaded by PHR's argument that the remaining defendant-physicians fall within the scope of the endorsement simply because they are "members" of either the peer review committee or the hospital staff.
Rather, the Court must determine whether, as members of the peer review committee or hospital staff, the remaining defendant-physicians qualify as "Club Members" as contemplated by the endorsement. To resolve this issue, the Court must first determine whether the Club Members endorsement is ambiguous.
Insurance policies are controlled by the rules of interpretation and construction that apply to contracts generally. See National Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995). The primary concern of a court in construing a written contract is to ascertain the true intent of the parties as expressed in the instrument. See id. If a written contract is so worded that it can be given a definite or certain legal meaning, then it is not ambiguous. See id. Parol evidence is not admissible for the purpose of creating an ambiguity. See id.
If, however, the language of a policy or contract is subject to two or more reasonable interpretations, it is ambiguous. See id. Whether a contract is ambiguous is a question of law for the court to decide by looking at the contract as a whole in light of the circumstances present when the contract was entered. See id. Only where a contract is first determined to be ambiguous may the courts consider the parties' interpretation and admit extraneous evidence to determine the true meaning of the instrument. See id.
After reviewing the policy language, the Court concludes that the term "club" is susceptible of more than one reasonable interpretation. The provision, entitled "Additional Insured — Club Members," explains that the policy is amended to include as an insured any of your members, but only with respect to their liability for your activities or activities they perform on your behalf. (Def.'s App. at 47.) Because the Court has determined that the accompanying text must be read in conjunction with the title, the Court interprets the provision to be limited to members of a club. However, the term "Club," which is used only in the title, is left undefined. The language used in the text of the provision is so broad that it could encompass any type of club. The term "Club," as defined by Webster's Dictionary can be broadly defined as "a group of persons associated for a common purpose." The Merriam Webster Dictionary at 154 (1994). Under this definition, the peer review committee, which is made up of a group of persons associated for the common purpose of conducting peer reviews and which conducts its peer reviews on behalf of the hospital, would be considered a Club that is covered under this provision.
By contrast, Black's Law Dictionary, more narrowly defines "Club" as a "voluntary . . . association of persons for common purposes of a social, literary, investment, political nature, or the like. Association of persons for promotion of some common object, such as literature, science, politics, good fellowship, etc., especially one jointly supported and meeting periodically, and membership is usually conferred by ballot and carries privilege of exclusive use of club quarters . . ." Black's Law Dictionary 256 (6th ed. 1991). Under this definition, a member of a peer review committee would likely not be a Club Member because the association is not organized for a social, literary, investment, political or like purpose, is not "jointly supported [financially]," and does not have "club quarters." Rather, it is an association of hospital physicians working together on a business matter.
Because both of these interpretations are reasonable, the Court concludes that the provision is ambiguous. When resolving the ambiguity, a court can admit extraneous evidence to determine the meaning of the provision. See CBI, 907 S.W.2d at 520.
There is no evidence that PHR intended the Club Members endorsement to provide coverage for the activities of its peer review committee(s). There is neither testimony from Presbyterian's broker, who acquired the policy and the endorsement on PHR's behalf, nor is there testimony from the PHR representative who was involved in the procurement of the policy. (PL's App. at 169-70.) However, David Woodworth, the corporate representative of Travelers, does acknowledge that the Club Members endorsement would provide coverage for individuals who are "brought together for the purpose of improving service at the hospital." He also agrees that the endorsement would provide coverage for "a group of individuals . . .[that] are part of an association, club, or organization and they are providing a service." (Def.'s App. at 5-8.) PHR argues that the peer review committee would come within the scope of this definition.
By contrast, Travelers argues that it could not have been the intent of PHR or Travelers to include the peer review committee activities in the Club Members endorsement because these physicians and their activities are covered by the directors and officers policy issued by National Union (which has accepted coverage for PHR and the defendant doctors in the Poliner Lawsuit). (PL's App. at 189-90.) Moreover, David Woodworth testified that Travelers did not intend the Club Members endorsement to include coverage for doctors on peer review committees. (Trav. App. at 179.)
"If a contract of insurance is susceptible of more than one reasonable interpretation, we must resolve the uncertainty by adopting the construction that most favors the insured." Nat'l Union Fire Ins. Co. v. Hudson Energy Co., 811 S.W.2d 552, 555 (Tex. 1991); see loops v. Gulf Coast Marine Inc., 72 F.3d 483, 486 (5th Cir. 1996). "Thus, once the insured presents a reasonable construction of the terms of the policy at issue, any ambiguity must be resolved, as a matter of law, against the insurer and in favor of coverage." Pioneer Chlor Alkali Co., Inc. v. Royal Indem. Co., 879 S.W.2d 920, 929 (Tex.App. — Houston [14th Dist] 1994, no writ).
Because PHR, the insured, has presented a reasonable interpretation of the Club Members endorsement, this ambiguity must be resolved in favor of PHR. Thus, the Court concludes that the individual physicians are considered insureds under the policy.
C. ARE THE CLAIMS ALLEGED IN THE POLINER LAWSUIT COVERED BY THE POLICY?
The insured bears the initial burden of showing that there is coverage, while the insurer bears the burden of proving the applicability of any exclusions in the policy. See VIC, 143 F.3d at 193. Once the insurer has proven that an exclusion applies, the burden shifts back to the insured to show that the claim falls within an exception to the exclusion. See id.
1. Are Defamation and Business Disparagement Claims Covered by the Policy?
PHR, the insured, contends that there is coverage under "Coverage B" of the Policy which is entitled "Personal and Advertising Injury Liability" and reads as follows: "We will pay those sums that the insured becomes legally obligated to pay as damages because of `personal injury' or `advertising injury' to which this insurance applies. We will have the right and duty to defend any `suit' seeking those damages . . ." (Def.'s App. at 27.) The Policy defines "personal injury" and "advertising injury" to include "oral or written publication of material that slanders or libels a person or organization or disparages a person's or organization's goods, products, or services." (Def.'s App. at 34.)
PHR notes that the underlying Poliner Lawsuit asserts claims of business disparagement, slander, and libel that are alleged to have occurred within the policy period. (Def.'s Resp. at 14; Poliner Compl. ¶¶ 115-19). PHR argues that because these claims are covered, Travelers has a duty to defend the entire suit. (Def.'s Resp. at 14 (citing LaFarge, 61 F.3d at 393).)
In response, Travelers argues that the Policy specifically excludes coverage for claims of business disparagement and defamation. Travelers points to the "Employment-Related Practices Exclusion" which is added to Paragraph 2 (Exclusions) of Coverage B — Personal and Advertising Injury Liability. (Pl.'s App. at 114.) This exclusion states that coverage does not apply to personal injury to a person arising out of any "employment-related practices, policies, acts, or omissions, such as coercion, demotion, evaluation, reassignment, discipline, defamation, harassment, humiliation, or discrimination directed at that person." (Pl.'s App. at 114 (emphasis added).) PHR replies by arguing that the employment-related practices exclusion can only apply if the injured party is an employee. Since Travelers takes the position that the defendant-physicians are not employees, it cannot now seek to invoke the employment-related practices exclusion.
The exclusion states that coverage does not apply to personal injury to any person arising from an employment- related practice. (Pl.'s App. at 114). The exclusion does not use the word "employee," rather it uses the term "person" against whom the defamation is directed. However, the court concludes that use of the word "person" provides for exclusion from coverage persons who applied for employment with PHR but were not hired as well as former employees who allege injury during employment related activities. Thus, the exclusion applies to persons who apply for employment at PHR, current employees, and former employees of PHR who allege defamation occurring during employment related practices.
It is undisputed that the individual doctors for whom PHR seeks coverage are not employees of the hospital. Further, peer review activities concern discipline, suspension or termination of privileges for doctors who practice at PHR, but who are not employees of PHR. With these considerations in mind and in light of Texas law that insurance polices are to be strictly construed in favor of the insured in order to avoid exclusion of coverage, the court finds that peer review activities are not employment related activities within the meaning of the exclusion in the insurance policy. See American Guarantee and Liability Ins. Co. v. Shel-Ray Underwriters, Inc., 844 F. Supp. at 329 (internal citations omitted). Thus, the Employment-Related Exclusion at issue does not bar coverage for doctors who engaged in peer review activities.
Travelers also asserts that coverage is excluded by the Professional Services Endorsement which reads in part: "This insurance does not apply to "bodily injury" or "property damage" arising out of. . . . [t]he liability of any insured for acts or omissions as a doctor of medicine." Thus, the endorsement excludes coverage for liability of doctors of medicine resulting in "bodily injury" or "property damage". The court disagrees with PHR's assertion that this provision only applies to doctors' services in connection with blood banks or blood work. Neither the title nor the text of the endorsement allow for such a narrow reading. Considering the title and the text of the exclusion, it is apparent that the exclusion addresses professional services and blood bank services, not solely professional services relating to blood banks. However, PHR correctly notes that the Endorsement, which excludes liability for "acts or omissions of a doctor of medicine" resulting in "bodily injury" and "property damage", applies only to Coverage A and not to Coverage B. Coverage A addresses liability resulting in "bodily injury" and "property damage". Coverage B provides coverage for "personal injury" and "advertising injury". "Personal injury" is defined by the policy as injury other than "bodily injury". PHR asserts coverage under Coverage B of the policy. The court agrees with Defendant that the Professional Services Endorsement does not exclude coverage for claims made under Coverage B of the policy.
Travelers contends that the inclusion of the Professional Services Endorsement in the policy indicates an intent not to cover physicians for professional related work as physicians. (Travelers' Brief in Support of Mot. for Sum. J. at pp. 9-10). The court disagrees. If the intent of the parties was that the policy not cover any professional services rendered by physicians, a Professional Services Endorsement excluding liability under Coverage A of the policy would have been unnecessary. Moreover, the limited scope of the exclusion indicates an intent to cover physicians for claims not encompassed by the exclusion that are otherwise within the coverage of the policy. The inclusion of the Professional Services Endorsement in relation to Coverage A indicates that Travelers knew how to limit coverage for claims made against physicians on staff at PHR. Travelers chose to clearly exclude coverage for medical services by a physician with respect Coverage A but not with respect to physician services under Coverage B. The court finds that coverage is not excluded by the Professional Services Exclusion Endorsement.
Travelers next asserts that coverage is excluded by a provision in the policy that excludes coverage for claims on which the insured has assumed liability in a contract or agreement. Travelers maintains that because PHR is providing a defense in the underlying lawsuit for the individual physicians, coverage is excluded by the assumption of liability provision. However, Travelers presents no evidence, apart from its argument, that PHR ever agreed to assume the liability for the individual doctors or any of the physicians on its staff. Thus, the court finds that coverage is not excluded by the assumption of liability provision.
Travelers also asserts that coverage is barred by Section IV, 2(d) of the policy because of PHR's undertaking a joint defense with the individual defendants in the Poliner Lawsuit. Section IV, 2(d) of the policy provides that the insured is not to make, except at its own cost, any voluntary payment without the consent of the insurer. Travelers maintains that PHR's payment of the individual doctors' defense costs without Travelers' consent is a violation of the policy. The court disagrees. After receiving notification of the Poliner Lawsuit, Travelers undertook a defense of PHR subject to a reservation of rights. Travelers and PHR have disagreed whether the policy at issue provides coverage for the individual doctor defendants in the Poliner Lawsuit. However, Travelers instructed PHR that it was incumbent on PHR "to take the necessary action to protect 3-A). In the same letter, Travelers stated that if it was ultimately obligated to defend, "we will pay all reasonable and necessary legal expenses incurred . . . in this matter from the date [of] tender of suit . . . until the date we assume the defense of the case." Thus, while Travelers and PHR attempted to resolve the issue of coverage for the individual defendants, PHR agreed to pay the defense costs for these physicians. The court finds this does not bar coverage as Travelers asserts. PHR was simply doing what it thought necessary to protect the interests of the insured. The court finds that PHR's payment of defense fees for the individual defendants is not a violation of the voluntary payment provision and coverage is not barred because of a violation of this provision.
Lastly, Travelers contends that coverage for the defamation claims against the defendants are excluded by the "Knowledge of Falsity" exclusion. This provision states that coverage under the policy is not allowed for "personal injury" or "advertising injury" "arising out of oral or written publication of material, if done by or at the direction of the insured with knowledge of its falsity." (Policy, Section I, Coverage B(2)(a)(1)). However, as PHR notes, the defamation claims in the underlying suit also allege that the defamatory publications were made recklessly. Thus, the plaintiff in the underlying suit does not have to prove that the publications were made with knowledge of falsity in order to prevail. The court finds that coverage is not excluded by the "Knowledge of Falsity" provision.
D. FAILURE TO GIVE TIMELY NOTICE OF CLAIMS
It appears to be undisputed between the parties that there was over an eighteen month delay from the time the underlying suit was first filed to the time Travelers first received notice from PHR. The policy required PHR to notify Travelers "as soon as practicable" of an "occurrence" or an "offense which may result in a claim" or "if a claim or suit was brought against [PHR]". The policy also required that PHR "immediately send [Travelers] copies of any demands, notices, summonses or legal papers received in connection with the claim or suit." Policy provisions requiring notice "as soon as practicable" and "immediately" are "construed to mean within a reasonable time in light of the circumstances." Hanson Production Co. v. Americas Ins. Co., 108 F.3d 627, 628 (5th Cir. 1997). PHR does not explain the reason for the delay in notice but contends that Travelers may not rely on late notice to void coverage unless it shows prejudice resulting from the late notice. Travelers asserts that no showing of prejudice is necessary under Texas law.
The law in Texas, as well as in the Fifth Circuit, with respect to this issue is not well settled, In support of its position, Travelers relies primarily on Gemmy Industries Corp. v. Alliance General Ins. Co., 190 F. Supp.2d 915, 922 (N.D. Tex. 1998). In Gemmy Industries, Magistrate Judge Kaplan concluded that Texas law did not require a showing of prejudice resulting from the failure to timely give notice in a case that did not involve allegations of bodily injury or property damage. More recently, in St Paul Guardian Ins. Co. v. Centrum G. S. Ltd., 2003 WL 22038321 (N.D. Tex. 2003), Judge Lindsey concluded that insurance companies were required to show prejudice resulting from late notice in order to void coverage. Like the Poliner Lawsuit, Gemmy Industries and Centrum involved allegations of defamation rather than claims of "bodily injury" or "property damage".
In Hernandez v. Gulf Group Lloyds, 875 S.W.2d 691, 693 (Tex. 1994), the Texas Supreme Court held that an insurer must show prejudice in order to void coverage where its insured settled a lawsuit without the consent of the insurer in violation of the policy. Hernandez involved a claim of bodily injury, a distinction relied on by Judge Kaplan in Gemmy Industries. However, claim of bodily injury, a distinction relied on by Judge Kaplan in Gemmy Industries. However, the court in Hernandez did not rely on such a distinction. Instead, the court relied on broad principles of contract law in holding that a showing of prejudice was required in order for a violation of the policy to bar coverage, In Hanson Production Co. v. Americas Ins. Co., the Fifth Circuit extended the holding in Hernandez to cases involving failure to give timely notice in violation of the insurance policy. Hanson Production Co. v. Americas Ins. Co., 108 F.3d at 629. Hanson also involved claims of property damage rather than defamation. However, as in Hernandez, the decision in Hanson does not appear to have turned on the nature of the claim. The Hanson court did discuss the order issued by the Texas State Board of Insurance requiring a showing of prejudice in cases involving bodily injury or property damage. Id. at 629-30. However, the court also was "strongly influenced" by the Texas Supreme Court's decision in Hernandez. Id. at 630. To confuse matters more, the Fifth Circuit affirmed the Gemmy Industries case without opinion, and thus, no discussion of Hernandez or Hanson. Gemmy Industries Corp. v. Alliance General Ins. Co., 200 F.3d 816 (5th Cir. 1999). The court agrees with Judge Lindsey that the latest pronouncements from the Texas Supreme Court and the latest published Fifth Circuit case indicate that, irrespective of the nature of the claim, a showing of prejudice is required before coverage may be voided for failure of an insured to timely give notice to its insurer. Accordingly, the court will consider whether Travelers has shown prejudice from PHR's giving of untimely notice.
In determining whether an insurer has shown prejudice, courts consider factors such as: (1) the extent to which the nonbreaching party will be deprived of the benefit that it could have reasonably anticipated from full performance, (2) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived, (3) the likelihood that the party failing to perform will suffer forfeiture, (4) the likelihood that the non-performing party will cure his failure, and (5) the extent to which the behavior of the party failing to perform comports with standards of good faith and fair dealing. Hernandez v. Gulf Group Lloyds, 875 S.W.2d 691, 693 (Tex. 1994). Travelers does not address these factors, but asserts it has been prejudiced in several ways. However, the court finds that the summary judgment evidence does not support Travelers' assertions of prejudice. Although the delay in notifying Travelers was inordinately long, Travelers has had sufficient time to become involved and obtain information concerning the underlying lawsuit, which is still pending. PHR contends, and Travelers does not refute, that the vast majority of defense fees and costs have occurred after notice was provided to Travelers. The court's docket sheet reflects that over two-thirds of the activity in the Poliner Lawsuit occurred after Travelers received notice of the suit, which tends to corroborate PHR's statement regarding when fees and costs accrued. Further, PHR agrees not to seek to recoup pre-tender defense costs incurred in the underlying suit.
Travelers alleges prejudice because PHR effectively waived certain defenses available to it by undertaking a joint defense with the individual physicians. However, Travelers does not explain why it was unable to assert these defenses after November 2001. The docket sheet in the Poliner Lawsuit shows agreed motions to extend various deadlines filed by the parties on December 17, 2001, December 20, 2001, February 8, 2002, and March 21, 2002. Each of these motions was granted by the court. Travelers also asserts that the late notice compromised its ability to settle PHR's dispute with Dr. Poliner independent of the remaining defendants. Without further explanation from Travelers, the court is unable to determine why Travelers was not able to undertake such settlement discussions after November 2001 until the present, and how the late notice caused prejudice to Travelers. The Poliner case has been pending for over two years since Travelers received notice of the suit. The same reasoning applies to Travelers assertions that the late notice undermined its potential ability to seek contribution from the individual defendants and other insurers. Travelers has now been involved in the Poliner lawsuit for over two years and does not explain why it is unable to seek contribution.
The court finds that the evidence does not support a finding of any specific prejudice that has occurred to Travelers because of the late notice provided by PHR. Thus, PHR's late notice to Travelers does not bar coverage under the policy.
Accordingly, Plaintiff's motion for summary judgment is Denied, and Defendant's motion for summary judgment is Granted.
It is so ORDERED.