United States District Court, D. Maine
ORDER ON MOTION TO DETERMINE EFFECT OF TENDER &
CROSS-MOTIONS FOR SUMMARY JUDGMENT
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
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.
1, 2015, Joseph Skilken & Co. (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).
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).
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
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).
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).
STATEMENT OF FACTS
Accident, Oxford’s Negligence, & the Default
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. 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.
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.
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.
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 ¶
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) 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.
Oxford’s Insurance Policy
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.
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).
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 ¶
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.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.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.
Cross Insurance’s Communications with Oxford Regarding
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.
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 ¶
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 ¶
14, 2013 Letter from Cross Insurance to Oxford
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.
Notice of Nonrenewal
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. 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. 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.
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. 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.
Berkley & Oxford’s Communications Regarding the
Accident & Loss
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).
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 ¶
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.
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.
Motion on Effect of Tender
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
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
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).
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”).
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.
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.
Cross-Motions for ...