The opinion of the court was delivered by: Christina A. Snyder United States District Judge
AND RELATED CROSS ACTIONS
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This is an action brought by plaintiff Enodis Corporation, formerly known as the Welbilt Corporation (referred to herein as "Enodis"), against defendants Continental Casualty Company ("Continental") and Transportation Insurance Company ("Transportation") ("collectively, "CNA"). The action arises out of a dispute involving five insurance policies issued by CNA to Enodis.
In this action, Enodis seeks reimbursement from CNA for $241,658.91 in fees and expenses it incurred for its defense in Pearce v. Welbilt ("the Pearce action") in addition to prejudgment interest. CNA, through its asserted counterclaim against Enodis, seeks $2.356 million in retrospective reimbursement and self-insured retention ("SIR") contribution under the policies in addition to $746,507.75 in attorneys' fees incurred in the instant action.
This action was tried to the Court. Trial commenced and concluded on February 26, 2009. George Stephan, John Lee, and Deana Ahn appeared for Enodis. Hellar-Ann Hancock and Teresa Wainman appeared for CNA. The Court, having considered the testimony and other evidence admitted at trial, the briefs of the parties, and the arguments of counsel, makes the following Findings of Fact and Conclusions of Law.
A. The Transportation and Continental Policies
Between 1986 and 1991, Enodis entered into a series of insurance contracts with CNA to provide insurance coverage to Enodis pursuant to the following commercial general liability policies:
(a) Transportation general liability policy no. CCP001703987, effective April 30, 1986 to April 30, 1987 ("the 1986 Policy");
(b) Transportation general liability policy no. CCP00160 1805, effective April 30, 1987 to April 30, 1988 ("the 1987 Policy");
(c) Transportation general liability policy no. GL00 160968 1, effective April 30, 1988 to April 30, 1989 ("the 1988 Policy");
(d) Transportation general liability policy no. GL8007410957, effective April 30, 1989 to April 30, 1990 ("the 1989 Policy");
(e) Continental Casualty general liability policy no. GL007415736, effective April 30, 1991 to April 30, 1992 ("the 1991 Policy").
All of these policies have limits of $1 million per occurrence and in the aggregate. The 1986, 1987, 1988, 1989 policies contain an Automatic Premium Adjustment Rating Plan Endorsement and incorporate a Paid-Loss Plan. The 1988 and 1989 policies each contain a $1,000 deductible. The 1991 policy contains a "Deductible or Self-Insured Retention Endorsement" of $250,000 and incorporates the Claims Service Agreement, contract No. 807415737, dated April 30, 1991.
B. Policy Provisions Regarding Tender
The 1986 and 1987 policies contain the following provision regarding tender:
4. Insured's Duties In the Event of Occurrence, Claim Or Suit
(a) In the event of an occurrence, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the insured to the company or any of its authorized agents as soon as practicable.
(b) If the claim is made or suit is brought against the Insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative.
The 1988 and 1989 policies provide:
F. Duties in the Event of Occurrence, Claim or Suit Condition This Condition now specifically requires that the Named Insured is responsible for notifying this company of an occurrence. It also requires that the named Insured is responsible to see that the company receives prompt written notice of any claim or suit.
This is a procedural change from the current policy.
The 1991 policy provides:
2. Duties In The Event Of Occurrence, Claim Or Suit
a. You must see to it that we are notified as soon as practicable of an 'occurrence' or an offense which may result in a claim. To the extent possible, notice should include:
(1) How, when and where the 'occurrence' or offense took place;
(2) The name and addresses of any injured persons and witnesses; and
(3) The nature and location of any injury or damage arising out of the ...