UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

TRT Development Company, Inc. and Omni Mount Washington, LLC Case No. 19-cv-851-PB v. Opinion No.

ACE American Insurance Company

MEMORANDUM AND ORDER

This case arises out of a fuel storage tank incident at the

Omni Mount Washington Hotel in Bretton Woods, New Hampshire.

The hotel’s owners, TRT Development Company, Inc. and Omni Mount

Washington, LLC (together, “TRT”), seek a declaratory judgment

that their insurer, ACE American Insurance Company (“ACE”), must

provide coverage for that incident under a claims-made liability

insurance policy. The policy covers remediation costs arising

out of a storage tank incident that is discovered and reported

to the insurer during the policy period. A separate reporting

requirement embedded in the policy requires the insured to

provide notice to the insurer within seven days of discovering

such an incident. TRT gave notice to ACE within the policy

period but more than seven days after discovering the incident.

Although ACE suffered no prejudice, it denied coverage because

of the late notice. The issue raised by the parties’ cross-

motions for summary judgment is whether proof of prejudice is

required to deny coverage under a claims-made policy when notice

is late but given before the end of the policy period. I. BACKGROUND

A. Insurance Policy

In October 2017, TRT procured a Storage Tank Liability

Insurance Policy from ACE, Policy No. G24814634003 (the

“Policy”), which covered the Omni Mount Washington Hotel’s

25,000-gallon aboveground fuel storage tank. The Policy was in

effect from December 7, 2017, until December 7, 2018. The

Policy includes three separate reporting requirements.

On the Declarations page, the Policy states in bold capital

letters:

This policy provides coverage for third-party liability on a claims-made and reported basis, which covers only claims first made against the insured and reported to the insurer, in writing, during the policy period or any applicable extended reporting period. This policy also provides coverage for first-party remediation costs on a discovered and reported basis, which covers only storage tank incidents first discovered and reported to the insurer, in writing, during the policy period.

Doc. No. 5 at 15. The same language is repeated on the first

page of the Policy. See Doc. No. 5 at 18.

Similar language appears in the “Insuring Agreements”

portion of the Policy (Section I):

The insurer agrees to pay on behalf of the insured for . . . claims and remediation costs . . . arising out of a storage tank incident, provided that the claim is first made, or the insured first discovers the storage tank incident, during the policy period. Any such claim must be reported to the insurer, in writing, during the policy period or any applicable extended reporting period. Any such discovery of a storage tank incident must be reported to the insurer, in writing, during the policy period.

2 Doc. No. 5 at 18 (cleaned up). I refer to the Policy’s

requirement that the insured report a claim or a storage tank

incident during the policy period as the claim-reporting

provision.

Section VII of the Policy, titled “Reporting and

Cooperation,” contains a second reporting requirement:

The insured must see to it that the insurer receives written notice of any claim or storage tank incident, as soon as possible, but in no event more than seven (7) days after a responsible insured first became aware of, or should have been aware of, such claim or storage tank incident.

Doc. No. 5 at 25 (cleaned up). The remainder of that provision

specifies where notice must be sent and what information it

should include. I refer to this reporting requirement as the

notice-of-claim provision.

The Policy contains a third reporting requirement that

applies to loading and unloading-related storage tank incidents.

Contained in an endorsement to the Policy, that provision reads:

Notwithstanding anything contained in the general reporting obligations identified in Section VII of this Policy which might be construed otherwise, it is a condition precedent to the coverage afforded pursuant to this Endorsement for loading and unloading-related storage tank incident that the insured provide written notice of such storage tank incident to the insurer within seventy-two (72) hours of the event giving rise to such storage tank incident.

Doc. No. 5 at 33 (cleaned up).

3 B. Storage Tank Incident

On May 26, 2018, staff at the Omni Mount Washington Hotel

observed what appeared to be oil on the side of an embankment in

a wooded area near the hotel’s boiler house, where the hotel’s

aboveground fuel storage tank was located. The hotel staff

promptly reported the discovery to TRT’s environmental

consultant, Horizons Engineering Inc. (“Horizons”).

On May 29, personnel from Horizons conducted a preliminary

investigation at the site and observed an oily sheen in an

adjacent wetland and in surface waters in the vicinity of the

boiler house. They believed that the contamination was caused

by a release of fuel oil from the hotel’s storage tank and

associated piping located in the boiler house. That same day,

TRT and Horizons gave notice of the spill to the Town of Carroll

Fire Department, the United States Coast Guard National Response

Center, and the New Hampshire Department of Environmental

Services. TRT also hired a regional emergency cleanup

contractor to immediately commence cleanup and remediation work

at the site. The cleanup efforts continued through June 18.

On June 20, 2018, well within the policy period but twenty-

two days after TRT first became aware of the oil spill, TRT

notified ACE of the storage tank incident. After conducting an

on-site investigation on September 24, 2018, ACE denied coverage

for remediation costs that TRT incurred in response to the

incident. The sole basis for the denial was TRT’s failure to

4 notify ACE within seven days of discovering the incident, in

breach of the Policy’s notice-of-claim provision.

The parties agree that the storage tank incident was

otherwise eligible for coverage under the Policy. The parties

likewise agree that ACE was not prejudiced by TRT’s two-week

delay in reporting the incident.

C. Procedural Posture

In June 2019, TRT filed this action in New Hampshire

Superior Court, seeking a declaratory judgment that ACE is

required to provide coverage under the terms of the Policy for

remediation costs associated with the storage tank incident.

TRT also asserted claims for breach of contract and breach of

the implied duty of good faith and fair dealing. ACE removed

the case to federal court.

After discovery was completed, the parties filed cross-

motions for summary judgment. I held oral argument on the

motions on June 22, 2021. At that hearing, the parties agreed

that no facts material to TRT’s request for declaratory judgment

are in dispute. The parties also confirmed that they are not

asking me to certify any legal questions to the New Hampshire

Supreme Court.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the record reveals “no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

5 56(a); Tang v. Citizens Bank, N.A.,

(1st Cir.

2016). In this context, a “material fact” is one that has the

“potential to affect the outcome of the suit.” Cherkaoui v.

City of Quincy,

(1st Cir. 2017) (cleaned up). A

“genuine dispute” exists if a jury could resolve the disputed

fact in the nonmovant’s favor. Ellis v. Fidelity Mgmt. Tr. Co.,

(1st Cir. 2018).

On cross-motions for summary judgment, the standard of

review is applied to each motion separately. See Am. Home

Assurance Co. v. AGM Marine Contractors, Inc.,

(1st Cir. 2006); see also Mandel v. Bos. Phoenix, Inc.,

, 205 (1st Cir. 2006) (“The presence of cross-motions for

summary judgment neither dilutes nor distorts this standard of

review.”). Thus, I must “determine whether either of the

parties deserves judgment as a matter of law on facts that are

not disputed.” Adria Int’l Grp., Inc. v. Ferré Dev., Inc.,

(1st Cir. 2001).

III. ANALYSIS

The parties agree that the Policy is a claims-made policy

that, in addition to third-party claims, covers remediation

costs associated with “storage tank incidents first discovered

and reported to the insurer, in writing, during the policy

period.” TRT discovered the storage tank incident and reported

it to ACE during the policy period, satisfying the Policy’s

claim-reporting provision. But because TRT waited twenty-two

6 days to provide that notice, TRT breached the notice-of-claim

provision, which required that notice be given within seven days

of TRT discovering the incident. ACE did not suffer any

prejudice due to the delay. The question before me is whether

New Hampshire law requires an insurer to show prejudice

resulting from late notice in order to deny coverage in these

circumstances. Although the New Hampshire Supreme Court has not

squarely addressed this issue, its reasoning in closely

analogous cases and persuasive authorities from other

jurisdictions lead me to conclude that the court would apply the

notice-prejudice rule here.

Under New Hampshire law, interpretation of an insurance

policy is a question of law. Town of Londonderry v. N.H. Mun.

Ass’n Prop. Liab. Ins. Tr., Inc.,

(1995).

“Where disputed terms are not defined in a policy or by State

judicial precedent, [courts] apply an objective standard,

construing the terms in context and as would a reasonable person

in the position of the insured, based upon more than a casual

reading of the policy as a whole.” Catholic Med. Ctr. v. Exec.

Risk Indem., Inc.,

(2005) (quoting Panciocco

v. Lawyers Title Ins. Corp.,

(2002)).

Ambiguities in a policy must be resolved in favor of coverage.

Philbrick v. Liberty Mut. Fire Ins. Co.,

(2007). Further, “the burden of proving lack of insurance

7 coverage is on the insurer.” Maville v. Peerless Ins. Co.,

(1996) (cleaned up).

The New Hampshire Supreme Court has held that whether an

insurer must prove prejudice to deny coverage based on late

notice of a claim or loss depends on the type of policy and the

type of notice at issue. See Bates v. Vt. Mut. Ins. Co.,

(2008); Bianco Prof’l Ass’n v. Home Ins. Co.,

(1999). The two primary types of liability

insurance policies are occurrence policies and claims-made

policies. 1 To understand the impact of late notice, it is

important to outline the major differences behind these policies

and the different types of notice requirements each may contain.

Occurrence policies provide coverage for claims “based on

an event occurring during the policy period, regardless of

whether the claim or occurrence itself is brought to the

attention of the insured or made known to the insurer during the

policy period.” Bianco,

-96 (quoting Yancey v.

Floyd West & Co.,

(Tex. Ct. App. 1988)). In

other words, it is the timing of the event causing the injury,

not the assertion of a claim or its reporting to the insurer,

1 A few opinions have referred to claims-made policies as “discovery” policies. See, e.g., DiLuglio v. New Eng. Ins. Co.,

(1st Cir. 1992). This characterization is particularly apt where, as here, the Policy covers not only third-party liability but also first-party losses on a “discovered and reported basis.” Following the parties’ lead and consistent with the vast majority of cases, however, I refer to the Policy as a claims-made policy.

8 that triggers coverage. So long as the act or omission that

gave rise to a claim occurred during the policy period, the

insurer may have to provide coverage for a claim made long after

the policy period has expired. See

An occurrence policy may nonetheless require that an

insured provide notice of a claim “as soon as practicable” or

within a specified time period. See, e.g., Bates,

. Courts refer to this type of notice requirement as a

notice-of-claim provision. See Restatement of the Law of

Liability Insurance § 35 (2019). The purpose of requiring

prompt notice of a claim is “to afford the insurer an adequate

opportunity to investigate, to prevent fraud and imposition upon

it, and to form an intelligent estimate of its rights and

liabilities before it is obliged to pay.” 13 Steven Plitt et

al., Couch on Insurance § 186:14 (3rd ed. 2021); see Lumbermens

Mut. Cas. Co. v. Oliver,

(1975).

By contrast, in a claims-made policy, the insured event is

a combination of two requirements: (1) the claim must be made

against the insured by a third party, or a covered loss must be

discovered by the insured, during the policy period, and (2) the

claim or loss must be reported to the insurer during that same

policy period. See Bianco,

. 2 The incident that

2 Some courts and treatises have labeled such policies as “claims-made-and-reported” policies. See, e.g., First Am. Title Ins. Co. v. Cont’l Cas. Co.,

(5th Cir. 2013); 7 Couch on Insurance § 102:22. This nomenclature helps

9 gives rise to a claim can occur before the start of the policy

period; the trigger for coverage is the discovery and reporting

of a claim within that period. As a result, “notice [to the

insurer] within the policy period ‘is of the essence in

determining whether coverage exists’” under a claims-made

policy. Gargano v. Liberty Int’l Underwriters, Inc.,

(1st Cir. 2009) (quoting Chas. T. Main, Inc. v. Fireman’s

Fund Ins. Co.,

(Mass. 1990)); see Bianco,

. Considered the defining feature of claims-made

policies, this notice requirement is typically referred to as

the claim-reporting provision. See Restatement of the Law of

Liability Insurance § 35. One of its main objectives is to

reduce insurance rate setting uncertainties by shortening the

period between the payment of premiums and the payment of

claims. See Chas. T. Main,

(“The closer in

to distinguish claims-made policies that require reporting a claim within the policy period from the less-common “pure claims-made” policies, which provide coverage for claims made against the insured during the policy period and reported to the insurer “as soon as practicable,” thus “ensuring that coverage is provided if a claim is made during the final hours of an insured’s policy period even if it is reported after the expiration of the policy.” Jeffrey P. Griffin, The Inapplicability of the Notice-Prejudice Rule to Pure Claims-Made Insurance Policies,

, 236, 247 (2009); see 7 Couch on Insurance § 102:22 n.8 (“Pure claims-made [] liability policies shift to the insured only the risk of claims incurred but not made whereas claims-made-and-reported policies shift the risks both of claims incurred but not made and of claims made but not reported.”). In this Memorandum and Order, I follow the New Hampshire Supreme Court’s usage of the term “claims-made” to refer to “claims-made-and-reported” policies. See Bates,

; Bianco,

.

10 time that the insured event and the insurer’s payoff are, the

more predictable the amount of the payment will be, and the more

likely it is that rates will fairly reflect the risks taken by

the insurer.”). In fact, typically “claims-made policies are

less expensive than occurrence policies, largely because the

insurer may ‘close its books’ on a policy at its expiration and

thus attain a level of predictability unattainable under

standard occurrence policies.” Craft v. Phila. Indem. Ins. Co.,

(10th Cir. 2014) (cleaned up); see

DiLuglio v. New Eng. Ins. Co.,

(1st Cir. 1992)

(noting that “the reporting period prescribed in a claims-made

insurance policy defines the scope of coverage, and allows the

insurer to set its premiums below the levels charged for

comparable occurrence policies”) (cleaned up).

In addition to a claim-reporting provision, a claims-made

policy can contain a notice-of-claim provision that requires the

insured to notify the insurer of a claim or loss “as soon as

practicable” or within a stated period. See 13 Couch on

Insurance § 186:13; Chas. T. Main,

. As with an

occurrence policy, the purpose of this type of notice

requirement in a claims-made policy is to maximize the insurer’s

opportunity to investigate and defend legal actions. See

Restatement of the Law of Liability Insurance § 35; Chas. T.

Main,

.

11 The New Hampshire Supreme Court has focused on these

salient differences between occurrence and claims-made policies

when determining whether proof of prejudice is required to deny

coverage based on late notice. Where an occurrence policy is at

issue, the court has held that the insurer must prove prejudice

to deny coverage based on the insured’s untimely notice of a

claim. Bates,

; Bianco,

.

The court explained that providing prompt notice of a claim is

subsidiary to the event that triggers coverage in an occurrence

policy, which again is the underlying incident, not the making

of a claim against the insured or its reporting to the insurer.

See Bianco,

.

By contrast, a showing of prejudice is not required to deny

coverage under a claims-made policy where the insurer does not

receive notice of a claim during the policy period.

.

The court reasoned in Bianco that prejudice is presumed to exist

in these circumstances because requiring an insurer to provide

coverage for a claim reported after the end of a claims-made

policy period effectively expands the policy’s grant of

coverage. See id.; see also Chas. T. Main,

(reasoning that requiring proof of prejudice when notice of a

claim is given outside the policy period “would defeat the

fundamental concept on which claims-made policies are premised”

because it would frustrate “the primary purpose of insuring

claims rather than occurrences.”). In Catholic Medical Center,

12 the court clarified that this is a conclusive presumption of

prejudice, meaning that an insured may not rebut it by showing

that the insurer actually suffered no prejudice. See

.

Although the Policy at issue in this case is a claims-made

policy, the facts here are distinguishable from Bianco in that

the storage tank incident, while not reported within seven days

as required by the notice-of-claim provision, was reported

during the policy period. Thus, the concern that animated the

court in Bianco – that requiring a showing of prejudice would

defeat the purpose of a claims-made policy by allowing claims

reported outside of the policy period – does not exist here.

See

. Unlike in Bianco, ACE had yet to “close

the books” on the Policy because the policy period was still in

effect when the incident was reported to ACE. Thus, excusing

late notice in this case would not rewrite a fundamental term of

the insurance contract and expand the scope of coverage.

The Policy’s notice-of-claim provision bears more

similarity to the notice requirement in the occurrence policy

that was breached in Bates. In that case, the provision

specified that the insured “must see to it” that the insurer is

“notified as soon as practicable of an occurrence or an offense

which may result in a claim.” Bates,

(cleaned

up). Here, the Policy states that the insured “must see to it

that the insurer receives written notice of any claim or storage

13 tank incident, as soon as possible, but in no event more than

seven (7) days” after its discovery. Both provisions serve the

same purpose – “protect[ing] the insurer’s rights by affording

it an opportunity to conduct timely investigation which promotes

early settlement and prevents fraudulent claims.” Lumbermens,

. In other words, the function of both

provisions is to protect the insurer’s interest from being

prejudiced. Thus, absent prejudice, the reason behind these

notice-of-claim provisions is lacking. Further, neither

provision operates substantively to define the scope of

coverage. See Bates,

. As was the case in

Bates, requiring ACE to cover the storage tank incident would in

no way expand the Policy’s grant of coverage. Thus, the same

reasoning that supported applying the notice-prejudice rule in

Bates applies here.

Several courts in other jurisdictions have likewise held

that the insurer must prove prejudice when an insured notifies

it of a claim within a claims-made policy period but fails to

provide notice within the time specified in a notice-of-claim

provision. See Prodigy Commc’ns Corp. v. Agric. Excess &

Surplus Ins. Co.,

(Tex. 2009); Fin.

Indus. Corp. v. XL Specialty Ins. Co.,

(Tex. 2009); Fulton Bellows, LLC v. Fed. Ins. Co.,

(E.D. Tenn. 2009). But see Templo Fuente De Vida

Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh,

,

14 1081 (N.J. 2016); R.H. Enters. v. ACE Am. Ins. Co., No. 1:17-cv-

22421-KMM,

, at *3 (S.D. Fla. June 10, 2018).

Like the New Hampshire Supreme Court, the courts that have

applied the notice-prejudice rule focused on the distinct

purposes served by the different notice provisions in a claims-

made policy.

The Texas Supreme Court in Prodigy considered whether,

under a claims-made policy, a denial of coverage can be based on

an insured’s “failure to comply with the policy provision

requiring that notice of a claim be given ‘as soon as

practicable,’ when (1) notice of the claim was provided before

the reporting deadline specified in the policy; and (2) the

insurer was not prejudiced by the delay.”

.

The court held that the untimely notice in those circumstances

does “not defeat coverage in the absence of prejudice to the

insurer.”

. This holding was based on an inquiry

into whether the “as soon as practicable” language was “an

essential part of the bargained-for exchange” under a claims-

made policy. See

. The court concluded that it

was not. See

. Such promptness, the court reasoned,

will “maximize the insurer’s opportunity to investigate, set

reserves,” and plan for possible payment of a claim.

at 380

(quoting 13 Couch On Insurance § 186:13) (cleaned up). By

contrast, the requirement that a claim be made within the policy

period “is directed to the temporal boundaries of the policy’s

15 basic coverage terms [and] . . . defines the limits of the

insurer’s obligation.” Id. (quoting 13 Couch On Insurance

§ 186:13). Importantly, the same is true of “a notice provision

requiring that a claim be reported to the insurer during the

policy period or within a specific number of days thereafter.”

Id. Such a provision “defines the scope of coverage by

providing a certain date after which an insurer knows it is no

longer liable under the policy.” Id. (cleaned up). Thus, the

focus of the court in Prodigy was the essential purpose of a

claims-made policy: that the insured benefit from, and be

constrained by, the necessity of providing notice within the

policy period. That purpose was fulfilled when the insured gave

notice during the policy period. The subsidiary requirement of

prompt notice was designed to avoid prejudicing the insurer’s

interests, so it logically follows that proof of prejudice is

required. See id. at 382.

The Prodigy court found persuasive the Massachusetts

Supreme Judicial Court’s decision in Chas. T. Main, which the

New Hampshire Supreme Court cited approvingly in Bianco as well.

See id. at 381; Bianco,

. In holding that notice

within a claims-made policy period was per se prejudicial to the

insurer, the court in Chas. T. Main distinguished notice-of-

claim provisions from claim-reporting provisions in claims-made

policies. That court first recognized that notice-of-claim

provisions frequently appear in both claims-made and occurrence

16 policies, but that claim-reporting provisions are unique to

claims-made policies. See Chas. T. Main,

. The

court then explained that those notice requirements serve

distinct purposes. Whereas “the requirement that notice of the

claim be given in the policy period or shortly thereafter in the

claims-made policy is of the essence in determining whether

coverage exists,” the court reasoned, a notice-of-claim

provision merely serves an investigative function, so excusing

its breach is not tantamount to extending coverage.

at 29-

30. Thus, the court held that the notice-prejudice rule

“applies only to the ‘as soon as practicable’ type of notice and

not to the ‘within the policy year’ type of reporting

requirement.”

.

ACE points to two opinions where courts have refused to

apply the notice-prejudice rule in similar circumstances. I am

unpersuaded by this line of cases because the approach those

courts have taken is starkly different from the reasoning that

the New Hampshire Supreme Court employed in Bianco and Bates.

The Supreme Court of New Jersey in Templo Fuente found that the

prejudice requirement turns on the sophistication of the

parties: “We have historically approached ‘claims made’ and

‘occurrence’ policies differently due in large part to the

differences between the policyholders themselves.”

. The court did not examine the distinct purposes that

such policies serve or the different types of notices in each.

17 Rather, because both parties were sophisticated business

entities, the court did not require the insurer to prove

prejudice to deny coverage based on late notice, even though

notice was given during the policy period. See

The other case ACE cites involved the interpretation of

another ACE policy identical to the Policy in this case. See

R.H. Enters.,

, at *3. Without distinguishing

between a policy’s reporting requirements, the district court in

that case held that late notice entitles the insurer to a

rebuttable presumption of prejudice under Florida law. See

This is distinguishable from New Hampshire law, which, as I

explained before, either requires proof of prejudice or creates

a conclusive presumption of prejudice, depending on the type of

policy and type of notice at issue. 3

3 ACE also argues that prejudice cannot be required because the notice-of-claim provision is a condition precedent to coverage. This argument is meritless. As an interpretive matter, there is a strong argument that this provision is not a condition precedent. The Policy’s 72-hour notice provision applicable to loading and unloading-related storage tank incidents specifically denominates timely notice as a “condition precedent” to recovery. By contrast, the notice-of-claim provision does not include similar explicit language indicating that a failure to provide notice within seven days will result in a forfeiture of the insured’s rights. At the very least, this leaves the Policy as a whole ambiguous as to whether the notice-of-claim provision is a condition precedent. Considering that an ambiguity in a policy must be resolved in favor of the insured and that conditions precedent are disfavored in New Hampshire, it is unlikely that the New Hampshire Supreme Court would construe this notice-of-claim provision as a condition precedent. See Santos v. Metro. Prop. and Cas. Ins. Co.,

, 688 (2019) (“Conditions precedent are not favored, however, and we will not construe contractual provisions as

18 Accordingly, I conclude that the New Hampshire Supreme

Court, if faced with the issue, would hold in accordance with

the Texas Supreme Court that the notice-prejudice rule applies

when an insured reports a claim under a claims-made policy

during the policy period but fails to provide notice within the

time specified in a notice-of-claim provision. Because TRT

reported the storage tank incident during the policy period and

ACE was not prejudiced by the two-week reporting delay, ACE may

not deny coverage under the Policy on the ground of late notice.

IV. CONCLUSION

I grant TRT’s motion for summary judgment (Doc. No. 43) to

the extent it seeks a ruling that ACE may not deny coverage

under the Policy based on TRT’s late notice of the storage tank

conditions precedent unless required by the plain language of the agreement.”); Philbrick,

(“[I]f the policy is reasonably susceptible to more than one interpretation and one interpretation favors coverage, the policy will be construed in favor of the insured and against the insurer.”).

More importantly, as the Texas Supreme Court held in Prodigy, whether a notice-of-claim provision is deemed a condition precedent is not relevant to the prejudice inquiry. See

. In that case, the policy expressly characterized timely notice as a “condition precedent” to coverage, but the court held it was nonetheless necessary “to go further to determine whether prejudice is, or is not, required.”

The New Hampshire Supreme Court has likewise analyzed the prejudice requirement without determining whether the policy language rendered coverage contingent on timely notice. Indeed, in Bianco, the court cited with approval a Missouri case that applied the notice-prejudice rule notwithstanding the policy’s characterization of the notice requirement as a “condition precedent.” See

(citing Cont’l Cas. Co. v. Maxwell,

(Mo. Ct. App. 1990)).

19 incident where TRT reported the incident within the claims-made

policy period and ACE admittedly suffered no prejudice from the

reporting delay. I deny ACE’s motion for summary judgment (Doc.

No. 41) with respect to the same.

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

October 13, 2021

cc: Counsel of record

20