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Burt Rigid Box, Inc. v. Travelers Property Cas. Corp.

ELR Citation: 33 ELR 20011
Nos. Nos. 01-7230(L), -7649(XAP), 302 F.3d 83/(2d Cir., 08/16/2002)

The court reverses a district court judgment holding that an insurer was not required to defend a manufacturer for contamination at two sites because the manufacturer had not provided timely notice of occurrence, but affirms the district court's judgment in all other respects. After four environmental site claims and 10 additional lawsuits related to one of those sites was filed against the manufacturer, the manufacturer brought the instant action against the insurer claiming that the insurer was obligated to provide insurance coverage under certain lost insurance policies issued to the manufacturer's former parent company. The court first holds that the district court did not err in finding that the manufacturer demonstrated that it made a diligent but unsuccessful search and inquiry for the missing policies. The court also holds that the manufacturer proved the existence and terms of the policies by clear and convincing evidence. There was overwhelming documentary and testimonial evidence establishing the existence of the policies and the fact that they were the insurer's policies. The court then holds, however, that contrary to the district court's decision, the insurer waived its right to deny coverage with respect to two of the sites on the ground that the manufacturer's notices were untimely. By the time of its answer, the insurer had determined that if it had issued policies covering the manufacturer, then those policies contained provisions found in the insurer's "typical" policies. Inasmuch as the notice provisions the insurer now seeks to enforce are found in such policies, the insurer's failure to assert them at the time it disclaimed coverage based on other provisions of such policies waived its right to do so now. Nevertheless, the court holds that the district court properly granted summary judgment to the insurer on the issue of its duty to defend some of the claims asserted in underlying bodily injury actions based on undisputed evidence that established that there was no set of facts under which those claims would or could be covered by the insurer's policies.

Counsel for Plaintiff
Jonathan A. Mugel
Lippes, Silverstein, Mathias & Wexler
1260 Delaware Ave., Buffalo NY 14209
(716) 884-4800

Counsel for Defendant
Robert Lewin
Stroock, Stroock & Lavan
Seven Hanover Sq., New York NY 10004
(212) 806-5400