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Joseph Skilken & Co. v. Berkley Aviation LLC

United States District Court, D. Maine

March 15, 2017

JOSEPH SKILKEN & CO., Plaintiff,
v.
BERKLEY AVIATION LLC, Defendant.

          ORDER ON MOTION TO DETERMINE EFFECT OF TENDER & CROSS-MOTIONS FOR SUMMARY JUDGMENT

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         In this reach and apply action, the Court rejects the Plaintiff’s contention that the insurer’s settlement of one claim requires the insurer to concede to another. But the Court concludes that the insurer received timely notice of the accident and damage under 24-A M.R.S. § 2904. The Court further concludes that the insurer failed to give the notice of nonrenewal of the policy required by 24-A M.R.S. § 2908(1)(D) and (5)(B) and therefore the insurance policy was still in effect as of the date of the accident. The Court therefore concludes that the insurer is liable to the damaged third party under the reach and apply action, leaving for later resolution whether the amount of the damage award was reasonable.

         I. PROCEDURAL HISTORY

         On May 1, 2015, Joseph Skilken & Co.[1] (Skilken) filed a complaint in this Court against Berkley Aviation LLC (Berkley) claiming entitlement to the proceeds of an insurance policy Berkley issued to Oxford Aviation, Inc. (Oxford). Compl. to Reach and Apply Insurance Benefits (ECF No. 1). On June 30, 2015, Berkley answered the complaint. Answer to Compl. (ECF No. 6). On November 30, 2015, Skilken moved to amend the complaint to add a third count. Pls.’ Mot. to Amend Compl. (Consent Mot.) (ECF No. 14). On December 1, 2015, the Court granted the motion to amend the complaint. Order Granting Without Obj. Mot. to Amend (ECF No. 16). On December 2, 2015, Skilken filed the First Amended Complaint. First Am. Compl. (ECF No. 18). On December 16, 2015, Berkley answered the First Amended Complaint. Def.’s Answer to Pls.’ Am. Compl. (ECF No. 19).

         On June 17, 2016, Skilken filed a motion to obtain a court order clarifying the effect of Berkley’s June 17, 2016 tender of a check for $105,179.09 to Ms. Skilken. Pls.’ Mot. to Determine Effect of Tender (ECF No. 34) (Tender Mot.). On July 8, 2016, Berkley filed its opposition. Def. Berkley Aviation’s Resp. to Pls.’ Mot. to Determine Effect of Tender (ECF No. 38) (Tender Opp’n).

         On July 18, 2016, Skilken filed a motion for summary judgment, Pls.’ Mot. for Summ. J. (ECF No. 39) (Skilken Mot.), with a statement of facts, Pls.’ Statement of Material Facts (ECF No. 40) (PSMF), and a set of stipulated facts. Stip. (ECF No. 41). Skilken also requested oral argument. Skilken Mot. at 1. On August 8, 2016, Berkley filed a response to Skilken’s motion for summary judgment, Def. Berkley Aviation’s Opp’n to Pls.’ Mot. for Summ. J. (ECF No. 48) (Berkley Opp’n), and a response to its statement of facts. Def. Berkley Aviation’s Opposing Statement of Facts (ECF No. 49) (DRPSMF). On August 15, 2016, Skilken replied to Berkley’s opposition to its motion for summary judgment. Pls.’ Reply to Mem. in Opp’n to Pls.’ Mot. for Summ. J. (ECF No. 50) (Skilken Reply).

         On July 18, 2016, Berkley filed a cross-motion for summary judgment, Def. Berkley Aviation’s Mot. for Summ. J. (ECF No. 43) (Berkley Mot.), with a statement of facts. Def. Berkley Aviation’s Statement of Material Facts (ECF No. 44) (DSMF). On August 6, 2016, Skilken responded to Berkley’s motion, Pls.’ Mem. in Opp’n to Def.’s Mot. for Summ. J. (ECF No. 45) (Skilken Opp’n), and filed a responsive statement of facts. Pls.’ Opposing Statement of Material Facts (PRDSMF). On August 17, 2016, Berkley replied to Skilken’s opposition to its motion for summary judgment. Def. Berkley Aviation’s Reply to Pls.’ Opp’n to Def.’s Mot. for Summ. J. (ECF No. 52) (Berkley Reply).

         On August 16, 2016, the Court granted the motion for oral argument, Order Granting Mot. for Oral Arg. and Hr’g (ECF No. 51), and on March 8, 2017, the Court held oral argument on the pending motions. Min. Entry (ECF No. 56).

         II. STATEMENT OF FACTS[2]

         A. The Accident, Oxford’s Negligence, & the Default Judgments

         Skilken owns a Cessna 441 aircraft (the Aircraft or the Cessna 441). Stip. ¶ 2. In the spring of 2013, Oxford painted the Aircraft. Id. ¶ 3. As part of its work painting the Aircraft, Oxford removed the fin cap (a part of the Aircraft’s vertical stabilizer), and then, after painting, replaced the fin cap. Id. ¶ 4. The fin cap is attached to the Aircraft with eight machine screws: four on the right side and four on the left. Id. ¶ 5. Oxford had a duty to reattach the fin cap using all eight machine screws. Id. ¶ 6. When the Oxford mechanic replaced the fin cap, he failed to place any of the four machine screws required for the right side of the fin cap. Id. ¶ 7. A reasonably careful aircraft mechanic needing to place the remaining four screws, would have, to ensure against forgetting to do so, physically flagged the fin cap, or made a note to himself or herself, or made a note in the shift-to-shift work list, or, as is the best practice, undertaken some combination of these measures. PSMF ¶ 1; DRPSMF ¶ 1.[3] The Oxford mechanic who installed the fin cap relied solely on his memory to remember to come back and install the right side machine screws. PSMF ¶ 2; DRPSMF ¶ 2.

         Before releasing the Aircraft to service, Oxford conducted a visual inspection of the Aircraft. Stip. ¶ 8. A reasonably careful visual inspection would have revealed the missing machine screws; however, Oxfords visual inspection did not reveal the missing machine screws. Id. ¶¶ 9-10. Oxford had a duty to the Plaintiff to conduct the visual inspection in a reasonably careful manner. PSMF ¶ 3; DRPSMF ¶ 3. Oxfords failure to detect the missing machine screws was a breach of its duty to the Plaintiff. PSMF ¶ 4; DRPSMF ¶ 4.

         On May 30, 2013, Oxford returned the Aircraft to service. Stip. ¶ 11. On the same day, Steven Skilken flew the Aircraft from Oxford Aviation’s Oxford, Maine facility to Columbus, Ohio. Id. ¶ 12. On May 31, 2013, Steven Skilken (pilot in command), Mrs. Skilken, their two children, and Mrs. Skilken’s parents departed Columbus, Ohio in the Aircraft en route to Colorado. Id. ¶ 13. On May 31, 2013, approaching the airport in Colorado Springs, Steven Skilken lost control of the Aircraft but was able to bring the Aircraft to the runway and make a hard landing. Id. ¶¶ 14-15.

         After landing, an inspection revealed that the fin cap was no longer on the Aircraft. Id. ¶ 17. The fin cap had come off the Aircraft mid-flight between Columbus and Colorado. Id. ¶ 18. The fin cap came off the Aircraft because the machine screws were missing. PSMF ¶ 5; DRPSMF ¶ 5. The fin cap forms the top and leading edge of the vertical stabilizer, or tail. PSMF ¶ 6; DRPSMF ¶ 6. Without the fin cap in place the leading edge of the rudder itself is improperly exposed to air moving at the speed of the aircraft, at speeds approaching 300 knots. PSMF ¶ 7; DRPSMF ¶ 7. The fin cap plays a critical role in an aircraft’s aerodynamic stability, and its absence results in a loss of aircraft control. PSMF ¶ 8; DRPSMF ¶ 8. The loss of the fin cap caused the loss of control and the hard landing. Stip. ¶ 19. The hard landing damaged the Aircraft and injured Karen Skilken. Id. ¶ 16; PSMF ¶ 9; DRPSMF ¶ 9.

         The parties agreed that the Court may take judicial notice of the following judgments against Oxford concerning the accident:

(1) Karen Skilken v. Oxford Aviation, Inc., 2:13-cv-00323-JAW, $104,382.74;
(2) Joseph Skilken & Co. v. Oxford Aviation, Inc., 2:13-cv-00322-JAW, $423,295.77.

Stip. ¶ 32. In addition, the parties have agreed that a deputy served Oxford with the summons and complaint in both these civil actions on August 27, 2013. Id. ¶¶ 33– 34.

         B. Oxford’s Insurance Policy

         Berkley is a Delaware limited liability company with a principal place of business in Santa Barbara, California. Id. ¶ 20. Berkley provides insurance to the aviation industry. Id. ¶ 21. StarNet Insurance Company (StarNet) is a subsidiary of Berkley. Id. ¶ 22.

         From May 14, 2012 to May 14, 2013, Berkley insured Oxford in accordance with the policy terms under policy number BA120500146. Id. ¶¶ 23, 25. By stipulation, the parties placed before the Court for purposes of the pending motions a copy of the Commercial General Liability Aviation Insurance Policy (Policy) issued by StarNet in favor of Oxford. Id. ¶ 24; id. Attach. 2 StarNet Ins. Co. Commercial Gen. Liab. Aviation Coverage (Policy).

         The Policy states in Section IV paragraph 17: “If we decide not to renew this coverage, we will mail or deliver to the first Named Insured shown in the Declaration written notice of the non-renewal not less than 30 days before the expiration date.” PSMF ¶ 13; DRPSMF ¶ 13. The “first Named Insured” referred to in Section IV paragraph 17 of the Policy is Oxford. Stip. ¶ 27. Section IV paragraph 17 of the Policy is amended by an endorsement which states in pertinent part: “If we decide not to renew this coverage, we will mail or deliver to the first Named Insured shown in the Declaration written notice of the non-renewal not less than 33 days before the expiration date.” PSMF ¶ 14; DRPSMF ¶ 14. The “expiration date” referred to in Section IV paragraph 17 of the Policy is May 14, 2013. PSMF ¶ 15; DRPSMF ¶ 15. In order to have coverage continue on a year-to-year policy after expiration, an insured needs to reapply for coverage. DSMF ¶ 4; PRDSMF ¶ 4.[4]

         The Policy, if it was in effect when the hard landing occurred, would have required StarNet to indemnify Oxford for the claims in the case of Karen Skilken v. Oxford Aviation Inc., 2:13:cv-00323-JAW. PSMF ¶¶ 23–24; DRPSMF ¶¶ 23–24.[5]Assuming the allegations in the complaint are true, and assuming the Policy was in effect on May 31, 2013, Karen Skilken’s claim for personal injury set forth in the complaint is a covered loss under the Policy. PSMF ¶ 25; DRPSMF ¶ 25. The Policy, if it was in effect at the time of the hard landing, would also have required StarNet to indemnify Oxford for the claims set forth in the case of Joseph Skilken & Co. v. Oxford Aviation, Inc., 2:13-cv-00322-JAW. PSMF ¶¶ 26–27; DRPSMF ¶¶ 26–27.[6]Assuming the allegations in the complaint are true, and assuming the Policy was in effect on May 31, 2013, the claim for damage to the aircraft in the complaint is a covered loss under the Policy. PSMF ¶ 28; DRPSMF ¶ 28.[7]

         C. Cross Insurance’s Communications with Oxford Regarding Policy Renewal

         Cross Insurance, for purposes of Berkley’s insurer-insured relationship with Oxford, was Berkley’s agent. PSMF ¶ 11; DRPSMF ¶ 11. Melissa Connell works as a commercial lines account manager at Cross Insurance. DSMF ¶ 1; PRDSMF ¶ 1. Jeffrey Vermette, who works as a commercial account executive at Cross Insurance, is Ms. Connell’s supervisor. DSMF ¶ 2; PRDSMF ¶ 2. Mr. Vermette was responsible for the Oxford account. DSMF ¶ 3; PRDSMF ¶ 3.

         On March 1, 2013, StarNet/Berkley sent a letter to Oxford concerning the upcoming renewal of the aviation policy. Stip. ¶ 26; id. Attach. 3 Letter from Jason Niemela, Pres. Berkley Aviation, LLC to Oxford Aviation, Inc. (Mar. 1, 2013) (March 1, 2013 Letter). Before May 14, 2013, Ms. Connell attempted to connect with Oxford to complete the application for Berkley in order to provide Oxford with a renewal quote for their policy. DSMF ¶ 5; PRDSMF ¶ 5. Additionally, prior to the expiration of the Policy, Mr. Vermette called Oxford and informed the owner, James Horowitz, that if Cross Insurance did not have the renewal application, the policy would not be renewed. DSMF ¶ 6; PRDSMF ¶ 6. Prior to the expiration of the policy in April and in May, Mr. Vermette went to Oxford to meet with Mr. Horowitz, but Mr. Horowitz could not see him. DSMF ¶ 7; PRDSMF ¶ 7.[8] Mr. Vermette tried a couple more times, and still Mr. Horowitz could not see him. Id. On May 8, 2013, Ms. Connell emailed Louise Horowitz at Oxford and attached an application from Berkley which identified by arrows certain information that Oxford needed to provide to Berkley in order to obtain a replacement policy. DSMF ¶ 8; PRDSMF ¶ 8.

         D. May 14, 2013 Letter from Cross Insurance to Oxford

         On May 14, 2013, Ms. Connell sent a letter to Oxford as a courtesy advising it that its coverage had lapsed and that Cross Insurance was willing to continue to work with Oxford to find coverage. Stip. ¶ 28; id. Attach. 4 Letter from Melissa J. Connell to Oxford Aviation, Inc. (May 14, 2013) (May 14, 2013 Letter); DSMF ¶ 9; PRDSMF ¶ 9. In that letter, Cross Insurance told Oxford that the Policy was cancelled effective 12:01 a.m., May 14, 2013. Stip. ¶ 29. In an email of that same date, Ms. Connell advised Oxford that if it wanted to replace the expired coverage that James Horowitz needed to get in touch with Mr. Vermette. DSMF ¶ 10; PRDSMF ¶ 10. Cross Insurance continued after May 14, 2013 to work with Oxford to get a policy in place. DSMF ¶ 11; PRDSMF ¶ 11. Cross Insurance received a quote from Berkley for the new policy, but Oxford did not pay the premium to put the new policy in force. Id.[9]

         E. Notice of Nonrenewal

         Maine law requires that nonrenewal of the Policy insuring Oxford be accomplished in accordance with 24-A M.R.S. § 2908. PSMF ¶ 10; DRPSMF ¶ 10. According to Ms. Connell and Mr. Vermette, neither Berkley nor Cross Insurance sent Oxford a notice of Policy nonrenewal at least 30 days prior to May 31, 2013. PSMF ¶¶ 12, 16; DRPSMF ¶¶ 12, 16.[10] Neither Cross Insurance nor Berkley verbally told Oxford that the Policy was not renewed at least 30 days prior to May 30, 2013. PSMF ¶ 17; DRPSMF ¶ 17.[11] According to Mr. Vermette at Cross Insurance, the letter dated March 1, 2013 from Starnet to Oxford was not a notice of nonrenewal of the Policy. PSMF ¶ 18; DRPSMF ¶ 18.[12]

         On June 6, 2013, Louise Horowitz of Oxford spoke to Cross Insurance asking for “a non-renewal from [Berkley].” PSMF ¶ 19; DRPSMF ¶ 19. During that conversation, Cross Insurance told Ms. Horowitz that no nonrenewal letter was issued by Berkley. PSMF ¶ 20; DRPSMF ¶ 20. Following the June 6, 2013 telephone conference with Louise Horowitz, Cross Insurance faxed Ms. Horowitz the May 14, 2013 letter. PSMF ¶ 21; DRPSMF ¶ 21.[13] On the fax cover sheet accompanying Cross Insurance’s fax to Oxford of the May 14, 2013 letter, Cross Insurance wrote: “[t]his is the only letter that was sent. Berkley Aviation is not a policy that renews – you must reapply every year. Due to that they did not issue any letter.” PSMF ¶ 22; DRPSMF ¶ 22.[14]

         F. Berkley & Oxford’s Communications Regarding the Accident & Loss

         On or about July 1, 2013, James M. Bowie, an attorney with Thompson & Bowie LLP, spoke with Ryan R. Gould, Vice President of Claims for Berkley. DSMF ¶ 12; PRDSMF ¶ 12. On that date, Mr. Gould sent Mr. Bowie a letter addressed to Naji Malek of Berkley dated June 24, 2013 from John S. Hoff, an attorney with the law firm of Hoff & Herran, who represented Oxford. DSMF ¶ 13; PRDSMF ¶ 13. The parties stipulated that the Court may consider for purposes of the pending motions this June 24, 2013 letter, as well as its attachment, a June 6, 2013 letter from Skilken’s attorney to Oxford concerning the May 31, 2013 incident and the Skilken Aircraft. Stip. ¶ 31; id. Attach. 5 Letter from Att’y John S. Hoff to Naji Malek at 1-3 (June 24, 2013) (June 24, 2013 Letter); id. Attach. 5 Letter from Att’y Bruce A. Lampert to James Horowitz at 4 (June 6, 2013) (June 6, 2013 Letter).

         On or about that same day, July 1, 2013, Mr. Gould contacted Mr. Hoff advising him to direct all further communications directly to Mr. Bowie and asking him for information regarding the alleged loss as well as Oxford’s involvement with that loss. DSMF ¶ 14; PRDSMF ¶ 14. Mr. Gould asked Mr. Hoff for details on the loss and informed him that he could find nothing on the National Transportation Safety Board (NTSB) site about the accident. DSMF ¶ 15; PRDSMF ¶ 15. On July 1, 2013, Mr. Bowie received a copy of an email addressed to Mr. Gould from Mr. Hoff advising Mr. Gould that Mr. Hoff would not direct any further communications directly to Berkley given Berkley’s representation by counsel. DSMF ¶ 16; PRDSMF ¶ 16. On July 9, 2013, Mr. Bowie sent an email to Mr. Hoff acknowledging his email of July 1, 2013, and advising him that Mr. Bowie’s office was reviewing the matter on behalf of Berkley and StarNet. DSMF ¶ 17; PRDSMF ¶ 17. Mr. Bowie asked Mr. Hoff to provide him with a brief answer to the information requested by Mr. Gould which would provide some context for the coverage issues set forth in Mr. Hoff’s letter. DSMF ¶ 18; PRDSMF ¶ 18. On July 11, 2013, Mr. Bowie received a response from Jeffrey F. Clement, an attorney with Hoff & Herran, advising him that Mr. Clement had sent the request for information along to his client (Oxford) and would respond shortly after hearing from his client. DSMF ¶ 19; PRDSMF ¶ 19. Mr. Bowie did not receive any further communications from anyone at Hoff & Herran. DSMF ¶ 20; PRDSMF ¶ 20.

         Mr. Bowie never received any notification from anyone at Hoff & Herran that a lawsuit had been filed against Oxford or that Joseph Skilken & Co. was pursuing a claim against Oxford. DSMF ¶ 21; PRDSMF ¶ 21. During the summer of 2013, Mr. Gould attempted to locate information regarding the loss through the NTSB site but was unable to locate any reference to the accident. DSMF ¶ 22; PRDSMF ¶ 22. The first time Mr. Bowie became aware of a lawsuit was in October of 2014. DSMF ¶ 23; PRDSMF ¶ 23. At that time, he was doing research on another matter and came across a recommended decision on a motion for a turnover order issued by Magistrate Judge John S. Rich III in the matter of Joseph Skilken & Co. v. Oxford Aviation, No. 2:13-cv-322-JAW and dated September 30, 2014. Id. Berkley first became aware of the Skilken lawsuits against Oxford when Mr. Bowie advised Mr. Gould on or about October 6, 2014 that he had found this Recommended Decision regarding the turnover order. DSMF ¶ 24; PRDSMF ¶ 24.

         Neither Cross Insurance nor Berkley ever informed Oxford, in writing or otherwise, that the Policy was in effect on May 31, 2013 when the hard landing occurred. Stip. ¶ 30.

         III. DISCUSSION

         A. Motion on Effect of Tender

         Skilken claims that Berkley should be estopped from continuing to deny Skilken’s right to reach and apply the Policy in this lawsuit because it tendered a check for the damages in the related lawsuit concerning Karen Skilken. Tender Mot. at 1. Skilken argues that it stands “in Oxford Aviation’s shoes to the extent [it] seeks the indemnification Berkley owed Oxford Aviation under the Policy.” Id. at 6 (citing Edwards v. Lexington Ins. Co., 507 F.3d 35, 39 (1st Cir. 2007)). It goes on to say that because it stands in Oxford Aviation’s shoes, the concept of good faith and fair dealing between an insurer and insured extends to it and therefore Berkley cannot pick and choose which of the claims it pays because the facts determining whether coverage exists are identical as to each of these claims. Id. at 6–7.

         In response, Berkley argues that “[t]he fact that two separate causes of action raise related issues does not preclude a Defendant from making a determination that it will contest those claims only in the context of one of those proceedings.” Tender Opp’n at 2. It states that Karen Skilken had a judgment for damages entered by the Court after a testimonial hearing and the opportunity to present evidence and fully litigate her claim and that she never moved to challenge the judgment, set aside the judgment, or appeal the judgment. Id. at 3. Therefore, Berkley argues, Karen Skilken’s decision on damages is “res judicata and cannot be re-litigated by her.” Id. Additionally, Berkley argues that it is not estopped by the tender from asserting its defenses to the reach and apply action brought by Joseph Skilken & Co. because “[t]his is not a situation where Berkley has obtained a ruling from the Court on a legal position and then seeks to take a position directly contrary to that ruling.” Id.

         Skilken is correct that it stands in Oxford’s shoes to the extent that it seeks indemnification under Maine’s reach and apply statute. See Edwards, 507 F.3d at 39 (“Maine’s reach and apply statute places Edwards in Game Tracker’s shoes to the extent he seeks whatever indemnification might have been owed to Game Tracker under its insurance policies”). However, in Edwards, the First Circuit also stated that it is unclear what ability an injured third party has to claim “benefits or advantage based on other contractual duties owed by the insurer to the insured, such as the duty to defend.” Id. (emphasis in original). Neither of the other two cases that Skilken cites stands for the proposition that an injured third party seeking to reach and apply the proceeds of an insurance policy can assert the duty of good faith and fair dealing on behalf of the insured. See Marquis v. Farm Family Mut. Ins. Co., 628 A.2d 644, 648 (Me. 1993) (holding that an insurer owes a duty to act in good faith and deal fairly with its insured, even in the absence of a third-party tort claim); Greenvall v. Me. Mut. Fire Ins. Co., 1998 ME 204, ¶ 14, 715 A.2d 949 (reiterating that “an insurer’s duty of good faith and fair dealing arises from an implied covenant in the insurance contract and limits an insured’s remedies for breach of the duty to traditional remedies for breach of contract, and the additional statutory remedies provided in the insurance code”) (internal quotations omitted).

         Additionally, Skilken provides no reason why the Court should allow Skilken to claim the benefits of the duty here, and the Court has qualms about doing so. The Maine Supreme Judicial Court has stated that the duty to act in good faith and deal fairly “derives from a covenant implicit in the provisions of the insurance contract” and “runs only to an insurance company’s insured.” Linscott v. State Farm Mut. Auto. Ins. Co., 368 A.2d 1161, 1163 (Me. 1977) (emphasis added). Skilken’s claim against Berkley is not based on a breach of contract. Skilken never had a contract with Berkley. Skilken’s right of action against Berkley is statutory and the remedies for a breach of the duty of good faith and fair dealing are traditional breach of contract remedies, not available to Skilken. See Adams v. Universal Underwriters Ins. Co., No. 1:10-cv-00146-JAW, 2011 U.S. Dist. LEXIS 53584, at *17 (D. Me. May 18, 2011); Poisson v. Travelers Ins. Co., 31 A.2d 233, 234 (Me. 1943) (“There is no privity of contract between the plaintiff . . . and the [defendant] which issued a liability policy to the [insured company]. If the proceeds of the policy can be reached by the plaintiff, it is only by virtue of statutory authority or by express provision of the policy”).

         Even assuming Skilken stands in Oxford’s shoes with respect to the duty of good faith and fair dealing, there is no evidence in this record that Berkley breached the duty by paying one judgment and not the other. To determine whether an insurer breached its duty of good faith and fair dealing, courts have assessed whether the insurer “establishes a reasonable basis for its actions,” see Tait v. Royal Ins. Co., 913 F. Supp. 621, 625 (D. Me. 1996), or engaged in conduct in “bad faith.” Marquis, 628 A.2d at 648. Skilken suggests that Berkley “attempts to gain a tactical advantage in the litigation by tendering the judgment amount to Karen Skilken while continuing to refuse to pay the company’s claim.” Tender Mot. at 6. According to Skilken, Berkley is trying to pay the claim that gives it the most exposure if the reach and apply action is successful. Id. at 7. However, parties, for a variety of reasons other than the exercise of bad faith, choose to settle some cases and not others. It is not bad faith or unfair dealing for an insurance company to pick its fights.

         This would be a different matter if, when it tendered the check for the Karen Skilken judgment, Berkley admitted that it had adequate notice and that the Policy was in effect and then attempted to litigate the opposite position here with respect to Joseph Skilken & Co. The doctrine of judicial estoppel “operates to prevent a litigant from taking a litigation position that is inconsistent with a litigation position successfully asserted by him in an earlier phase of the same case or in an earlier court proceeding.” Perry v. Blum, 629 F.3d 1, 8 (1st Cir. 2010); New Hampshire v. Maine, 532 U.S. 742, 749–50 (2001) (“[Judicial estoppel’s] purpose is to protect the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment”) (internal citations omitted). Here, Berkley never actually litigated the issue of coverage or notice in the Karen Skilken case and there is no evidence that it admitted that coverage under the Policy extended to Karen Skilken when it made the tender.

         B. Cross-Motions for ...


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