ZURICH AMERICAN INSURANCE COMPANY v. UIP COMPANIES LLC et al

Filing 29

MEMORANDUM OPINION re: Plaintiff's 25 Motion for Summary Judgment. Please see the attached Memorandum Opinion for additional details. Signed by Judge Amit P. Mehta on 2/16/2021. (lcapm1)

Case 1:19-cv-01818-APM Document 29 Filed 02/16/21 Page 1 of 27

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________

)
ZURICH AMERICAN INSURANCE
)
COMPANY,
)
)
Plaintiff,
)
)
v.
)
)
UIP COMPANIES LLC et al.,
)
)
Defendants.
)
_________________________________________ )

Case No. 19-cv-1818 (APM)

MEMORANDUM OPINION
I.

INTRODUCTION
In this declaratory judgment action, Zurich American Insurance Company (“Zurich”) seeks

a declaration that it is not obligated to provide insurance coverage to Defendants UIP Companies
LLC, its principals Steven F. Schwat, Peter J. Bonnell, and Stephen E. Cox, and the holding
company Schwat Realty LLC (collectively, “UIP”) due to UIP’s alleged failure to provide Zurich
with timely notice of their claim. UIP has filed a counterclaim for breach of contract against
Zurich, which is premised on Zurich’s denial of coverage for the same claim.
Zurich now moves for summary judgment. For the reasons that follow, the court grants
Zurich’s motion for summary judgment and dismisses UIP’s counterclaim.
II.

BACKGROUND
A.

Factual Background
1.

Underlying Dispute

This case comes before the court after a protracted and ongoing dispute between UIP’s
principals and Marion Coster, the wife of the late Wout Coster, who was one of UIP’s original

Case 1:19-cv-01818-APM Document 29 Filed 02/16/21 Page 2 of 27

partners. See Pl.’s Mot. for Summ. J., ECF No. 25 [hereinafter Pl.’s Mot.], Pl.’s Stmt. of Material
Undisputed Facts, ECF No. 25-2 [hereinafter Pl.’s Facts], ¶¶ 2, 5, 6. Prior to Wout Coster’s death,
he and UIP’s principals, Peter Bonnell, Heath Wilkinson, and Steven Schwat devised a final term
sheet, dated April 11, 2014, that laid out the framework for an agreement that would redistribute
their ownership stakes in UIP. See Pl.’s Facts ¶ 4; Defs.’ Opp’n to Pl.’s Mot. for Summ. J., ECF
No. 27 [hereinafter Defs.’ Opp’n], Defs.’ Resp. to Pl.’s Stmt. of Material Undisputed Facts &
Add’l Undisputed Material Facts, ECF No. 27-1 [hereinafter Defs.’ Facts], ¶ 34; Pl.’s Mot., Ex. B,
ECF No. 25-5. Before the parties could execute a final agreement, however, Wout Coster passed
away in April 2015. See Pl.’s Reply Mem. of P. & A. in Further Supp. of Pl.’s Mot. for Summ. J.,
ECF No. 28 [hereinafter Pl.’s Reply Br.], Pl.’s Resp. to Defs.’ Stmt. of Add’l Undisputed Material
Facts [hereinafter Pl.’s Reply Facts], ¶ 35; Defs.’ Facts ¶ 35. Marion Coster inherited Wout
Coster’s equity interest in UIP and his entitlement to certain “promotes,” or shares, of the business.
See Defs.’ Facts ¶ 36.
A few months after Wout Coster’s death, Robert Gottlieb, who was representing Wout
Coster’s estate, contacted Schwat about the “next steps” for reorganizing the principals’ ownership
stakes, as the principals had discussed in the April 2014 term sheet. Defs.’ Opp’n, Ex. 15, ECF
No. 27-16, at 2. 1 Over the course of the summer, Marion Coster, along with Gottlieb and Anne
Pace (the executor of Wout Coster’s estate), Michael Pace (Anne Pace’s husband), and Michael
Rinaldi (Marion Coster’s accountant) engaged in active discussions with UIP’s leadership
regarding how the company should move forward following Wout Coster’s death and how to fairly
compensate Marion Coster. See Defs.’ Facts ¶¶ 40–41, 43–46.

1

For simplicity, the court uses PDF pagination for all exhibits.

2

Case 1:19-cv-01818-APM Document 29 Filed 02/16/21 Page 3 of 27

Over the course of such discussions, however, Marion Coster began to believe, to her
displeasure, that UIP had been operating as if the term sheet had been finalized and Wout Coster
had executed an agreement relinquishing some of his ownership stake and power in the company.
See, e.g., Pl.’s Mot., Ex. E, ECF No. 25-8 (Michael Pace arguing that, “[u]nless there exists a
binding document where Wout abdicated his right to a 50% voice in the operating companies, as
50% owner the estate has not only a right but an obligation to have a say in how this ‘excess’ was
and continues to be spent”); Defs.’ Opp’n, Ex. 11, ECF No. 27-12, at 2 (Michael Pace “rais[ing]
questions about Wout’s ownership interests in the UIP operating companies”). Indeed, Bonnell
explained to Marion Coster that the provisions in the term sheet should govern their relationship:
“We (Wout, me, Heath and Steve) came to the agreement represented in the term sheet that we all
signed . . . . The agreement proves what I have been saying and the agreement is what Wout agreed
to, not on his death bed, but almost a year before that, when he was relatively healthy.” Pl.’s Mot.,
Ex. G, ECF No. 25-10, at 2–3. The legal effect of the term sheet became a sticking point for the
parties’ negotiations.
2.

The Purported Claims

As negotiations drew on, UIP received three communications from Marion Coster and her
representatives that Zurich argues required UIP to notify it of the dispute. The first is an August
17, 2017 letter from Michael K. Ross—an attorney at Aegis Law Group LLP representing Marion
Coster—that was addressed to Schwat, Bonnell, and Wilkinson (the “August 17, 2017 Letter”).
Pl.’s Mot., Ex. H, ECF No. 25-11, at 2. The letter (1) enclosed independent valuations of UIP,
(2) disagreed that the 2014 term sheet was an enforceable contract, and (3) requested records and
information from UIP, including “detailed accounting[s]” of several of Wout Coster’s interests.
Id. at 2, 4–5. Ross informed UIP that Marion Coster was seeking information to guide her decision
3

Case 1:19-cv-01818-APM Document 29 Filed 02/16/21 Page 4 of 27

to enter “a potential buyout of her equity interests in the UIP Companies or . . . to assume or
delegate a representative to assume her rightful role in the UIP Companies.” Id. at 5. Ross also
requested a meeting with UIP’s legal counsel. Id.
Two months later, on October 11, 2017, Marion Coster sent UIP a follow-on letter, seeking
to review certain UIP books and records (the “October 11, 2017 Letter”). See Pl.’s Mot., Ex. K,
ECF No. 25-14, at 2. 2 The letter reminded UIP that “Mrs. Coster is the beneficial owner of fiftypercent of the Company as well as 50% of” UIP’s various related entities. Id. at 3. “Nevertheless,”
the letter continued, “neither Mrs. Coster nor her representatives have been consulted about—or
even apprised of—significant operational matters concerning the UIP Companies.” Id. Marion
Coster also noted that she had “received no profit distributions from any of the UIP Companies
since Mr. Coster’s passing, despite the evident success of those entities collectively.” Id.
Finally, on February 15, 2018, Ross, Marion Coster’s attorney, sent an email to UIP’s
counsel, Deborah Baum, a civil litigator, bearing the subject “Inadmissible Settlement
Communication – For Settlement Purposes Only” (the “February 15, 2018 Email”). Pl.’s Mot.,
Ex. O, ECF No. 25-18 [hereinafter Feb. 15, 2018 Email], at 2. The email provided the “terms
under which Mrs. Coster . . . is willing to enter a global resolution of the current situation involving
the UIP Companies and Messrs. Schwat, Bonnell, and Wilkinson.” Id. Ross informed UIP that it
was his client’s view that “either an agreement needs to be reached under which Mrs. Coster
receives fair value of her 50% equity ownership in the UIP Companies, or she (or her designee)
will need to fully participate in the management of the UIP Companies.” Id. Accordingly, Ross
proposed two “frameworks” under which Marion Coster would relinquish her interest and “full[y]

Marion Coster also sent similar letters to UIP Asset Management, Inc., Pl.’s Facts ¶ 17; UIP Property Management,
Inc., id. ¶ 20; and UIP General Contracting, id. ¶ 23.
2

4

Case 1:19-cv-01818-APM Document 29 Filed 02/16/21 Page 5 of 27

release” all claims against UIP. Id. Under “Framework A,” Marion Coster would receive
$3,681,000 for her 50% ownership stake and would continue to receive payments on certain
promotes and earn 39% of total payouts from certain deals documented in the term sheet. Id.
Under “Framework B,” Marion Coster was “willing to enter a global resolution of claims for past
events and to relinquish her equity interests in the three UIP Companies.” Id. She would be paid
$1.25 million in exchange for her equity interest, and Bonnell would “reimburse” her for certain
payouts of past promotes that he had received. Id. at 3. In addition, she would be paid “$300,000
within one year as compensation for lost dividends/distributions/management involvement with
regard to the UIP Companies since Mr. Coster’s death.” Id. Finally, UIP would pay Marion
Coster’s health insurance premiums for her lifetime. Id. Ross concluded the email by stating:
“For avoidance of doubt, any settlement between the parties will not be binding or effective unless
and until a settlement agreement is fully executed by all parties.” Id.
On March 2, 2018, Baum, counsel for UIP, responded, “I am sure you are not surprised to
hear that the proposal, as crafted, is unacceptable to Messrs. Bonnell and Wilkinson.” Pl.’s Mot.,
Ex. P, ECF No. 25-19, at 2. The email did not provide a counteroffer and instead “describe[d]
some over-arching issues [UIP had] with [Marion Coster’s] broader analysis.” Id. “We are not
going to be able to reach any amicable agreement if it is to be based on the valuations that you
provided,” Baum wrote, also referencing “a major disconnect” between Marion Coster’s
understanding of UIP’s ownership structure and the 2014 term sheet. Id. at 2–3. Negotiations
faltered thereafter, with Ross writing back, “Regrettably, [your email] was not at all helpful in
moving towards an amicable resolution . . . .” Pl.’s Mot., Ex. Q, ECF No. 25-20, at 2. 3

Although the email in Exhibit Q is addressed to “Michael K. Ross,” see Pl.’s Mot., Ex. Q, 25-20, at 2, Plaintiff has
averred that the email was sent “from Michael Ross to Deborah Baum” and “was identified and authenticated at the
Bonnell Deposition” as an email to Baum. Pl.’s Mot., Decl. of Andrew L. Margulis, ECF No. 25-3, ¶ 19.

3

5

Case 1:19-cv-01818-APM Document 29 Filed 02/16/21 Page 6 of 27

3.

Marion Coster Sues UIP

Marion Coster subsequently filed three lawsuits against UIP and its principals. The first
lawsuit, filed in the Delaware Court of Chancery on June 15, 2018, sought appointment of an
independent custodian to manage the company (the “Custodian Action”). See Pl.’s Mot., Ex. S,
ECF No. 25-22 [hereinafter Custodian Action Compl.], at 13. In brief, the lawsuit alleged that
Marion Coster “is a 50% stockholder” in UIP, who “has been denied any distributions from the
Company since 2015, the year her husband, a founder, died.” Id. ¶ 2. The complaint also alleged
that “Schwat has further prevented Mrs. Coster from gaining a meaningful view into the
Company’s financial affairs, and has barred her from any representation on the Board.” Id. The
Custodian Action sought the appointment of a custodian, as well as attorneys’ fees, expenses, and
costs. Id. at 13–14.
The second lawsuit, also filed in the Delaware Court of Chancery on August 22, 2018,
sought cancellation of stocks issued to Bonnell and the creation of a constructive trust (the “Stock
Action”). Pl.’s Mot., Ex. T, ECF No. 25-23 [hereinafter Stock Action Compl.], at 13. In that
lawsuit, Marion Coster alleged that “Schwat has resisted all efforts by Mrs. Coster to achieve
meaningful representation on the Board,” and that, in an effort to subvert the Custodian Action,
the UIP Board “purport[ed] to dilute Mrs. Coster’s ownership interest” by selling shares to Bonnell
after she had filed the Custodian Action. Id. ¶¶ 1–2; see also id. ¶¶ 24–26, 37. The complaint also
documented that Marion Coster had not received a salary or distributions since Wout Coster’s
death and that she had been thwarted in her attempts to “obtain more information about how the

6

Case 1:19-cv-01818-APM Document 29 Filed 02/16/21 Page 7 of 27

business is being run.” Id. ¶¶ 19–21. The action sought equitable relief and attorneys’ fees,
expenses, and costs. Id. at 13. 4
Finally, on August 24, 2018, Marion Coster filed a third action, which is currently pending
before this court, in which she alleges UIP and its principals breached their fiduciary duties, aided
and abetted breaches of fiduciary duty, and engaged in a civil conspiracy. See Pl.’s Mot., Ex. U,
ECF No. 25-24 [hereinafter Federal Action Compl.], at 13–22. The action claims that the
defendants “engaged in a brazen and unlawful scheme to deny Mrs. Coster, an elderly widow, any
financial remuneration from her 50% ownership [interest] in UIP, any role in the affairs and
governance of UIP, and any real visibility into the considerable financial success of the Company.”
Id. ¶ 3. Marion Coster again claims that she “has received no distributions, salary, bonuses, or
other financial renumeration from UIP since Mr. Coster’s death, despite her 50% ownership
[interest] in the Company.” Id. ¶ 25. The lawsuit seeks compensatory damages, attorneys’ fees
and costs, pre-judgment interest, and declaratory and injunctive relief. Id. at 22–23.
4.

UIP’s Insurance Policies

UIP’s decision to seek insurance coverage for Marion Coster’s lawsuits, including for legal
fees and costs incurred, implicated two insurance policies issued by Zurich. The first policy
provided coverage to UIP from March 1, 2017, to March 1, 2018 (the “2017 Policy”). See Pl.’s
Mot., Ryan Decl. Ex. E, ECF No. 25-49 [hereinafter 2017 Policy], at 8. The second policy
provided UIP coverage from March 1, 2018, to March 1, 2019 (the “2018 Policy”; collectively
with the 2017 Policy, the “Policies”). See Pl.’s Mot., Ex. LL, ECF No. 25-41 [hereinafter 2018
Policy], at 8. Other than the difference in the coverage periods, the two policies are substantively

The Delaware Court of Chancery consolidated the Custodian Action and the Stock Action, Pl.’s Facts ¶ 38, and has
since ruled in favor of UIP, Defs.’ Opp’n at 31.

4

7

Case 1:19-cv-01818-APM Document 29 Filed 02/16/21 Page 8 of 27

identical. Pl.’s Mot., Pl.’s Mem. of P. & A. in Supp. of Pl.’s Mot. for Summ. J., ECF No. 25-1
[hereinafter Pl.’s Br.], at 10 n.2. Both policies are “claims-made” policies. They provide coverage
on a claims-made-and-reported basis, which means that they “cover only claims first made against
the insureds during the policy period” or any extended reporting period. 2017 Policy at 8
(emphasis omitted); 2018 Policy at 8.
Several provisions of the Policies are particularly relevant to this dispute. First, the Policies
expressly make timely notice a condition precedent to coverage:
As a condition precedent to their rights under any Liability
Coverage Part, the Insureds shall give to the Underwriter written
notice of any Claim made against the Insureds as soon as
practicable after an Executive Officer or an employee of the
Company’s office of general counsel, risk management or
functionally equivalent departments, if any, first learns of such
Claim, but in no event later than (i) ninety (90) days after expiration
of the Policy Period, or (ii) the expiration of the Extended Reporting
Period or Run-Off Coverage Period, if exercised.
2017 Policy at 21, art. VIII, § A.1 (emphasis added); 2018 Policy at 21, art. VIII, § A.1. As
applicable to this dispute, the parties agree that the Policies require UIP to provide notice of a
Claim “as soon as practicable” and, in all circumstances, within 90 days after the policy period
expires.
Second, the Policies define a “Claim” to include, among other things, (1) “a written demand
against any Insured for monetary damages or non-monetary or injunctive relief commenced by the
Insured’s receipt of such demand, including a written demand that the Insured toll or waive a
statute of limitations,” and (2) “a civil proceeding against any Insured commenced by the service
of a complaint or similar pleading.” 2017 Policy at 27, art. III, § A.1–2; 2018 Policy at 27, art. III,
§ A.1–2. Thus, a Claim includes both certain pre-suit demands and any served litigation.

8

Case 1:19-cv-01818-APM Document 29 Filed 02/16/21 Page 9 of 27

Third, the Policies provide coverage for UIP’s “Wrongful Acts.” A “Wrongful Act”
encompasses “any error, misstatement, misleading statement, act, omission, neglect, or breach of
duty actually or allegedly committed or attempted by any of the Insured Persons.” 2017 Policy
at 29, art. III, § J; 2018 Policy at 29, art. III, § J. The Policies treat all Claims that arise from “the
same Wrongful Act” or “Interrelated Wrongful Acts” as “one Claim.” 2017 Policy at 18, art. III,
§ D; 2018 Policy at 18, art. III, § D. Accordingly, any Claim that arises from the same Wrongful
Act or Interrelated Wrongful Acts as another Claim “shall be deemed to be first made on the date
the earliest of such Claims is first made against any Insured, regardless of whether such date is
before or during the Policy Period.” 2017 Policy at 18, art. III, § D; 2018 Policy at 18, art. III,
§ D.
Fourth and finally, the Policies insure UIP for its losses, which are defined as “the total
amount the Insureds become legally obligated to pay on account of Claims made against them for
Wrongful Acts for which coverage applies.” 2017 Policy at 28, art. III, § E; 2018 Policy at 28,
art. III, § E. Such amounts include “damages (including punitive, exemplary or multiple damages),
judgments, any award of pre-judgment and post-judgment interest with respect to covered
damages, settlements, Defense Costs,” and civil penalties under certain statutory frameworks.
2017 Policy at 28, art. III, § E; 2018 Policy at 28, art. III, § E.
5.

UIP’s Notice to Zurich

Recall, Marion Coster filed her third and final lawsuit against UIP on August 24, 2018.
Over six months later, on March 8, 2019, UIP first gave notice to Zurich of its dispute with Marion
Coster by forwarding copies of the three complaints. Pl.’s Facts ¶ 43. By that point, however, the
three actions, especially the two now consolidated cases in Delaware, see supra note 4, had
substantially progressed. In fact, at the time UIP gave notice, the court in Delaware had scheduled
9

Case 1:19-cv-01818-APM Document 29 Filed 02/16/21 Page 10 of 27

a trial date for April 17, 2019. Id. ¶ 50. Shortly after providing notice, UIP advised Zurich that
its attorneys had billed over $640,000 for the three cases. See id. ¶¶ 56–58.
Following an investigation of UIP’s Claim, Zurich eventually “denie[d] coverage in its
entirety” and informed UIP that it would “neither defend nor indemnify [it] in connection with”
Marion Coster’s three lawsuits. See Pl.’s Mot., Ex. KK, ECF No. 25-40, at 2–3. Zurich offered
two primary reasons that it would not provide coverage. First, it determined that “UIP failed to
provide notice of the [l]awsuits in accordance with the requirements of the 2018 Policy” because
UIP did not give notice “as soon as practicable after the relevant UIP officers learned of such
[l]awsuits.” Id. at 5. Second, Zurich denied coverage because it concluded that “[t]he February
15, 2018 email was a ‘Claim’” that “was first made during the Policy Period of the 2017 Policy.”
Id. at 6. It reasoned that “[t]he acts giving rise to the demands in the February 15, 2018 email are
the same acts that are alleged in the [l]awsuits,” and therefore, “as a condition precedent to
coverage,” UIP was required to give notice “no later than ninety (90) days after the expiration of
the Policy Period of the 2017 Policy, making notice of the Claim required no later than May 30,
2018.” Id. UIP did not provide notice until more than nine months later on March 8, 2019. Id.
B.

Procedural Background

The same day that Zurich denied coverage—June 21, 2019—it also filed this action seeking
“a declaration that no coverage is available for any of the underlying lawsuits.” Compl., ECF
No. 1, ¶ 2. 5 UIP answered the Complaint and filed a Counterclaim alleging that Zurich breached
the insurance policy by failing to provide coverage. Answer & Counterclaim, ECF No. 12, at 1, 21.
Following discovery, Zurich moved for summary judgment. See Pl.’s Mot.

The Complaint originally named Marion Coster as a defendant, but Zurich voluntarily dismissed her before she
responded to the Complaint. See Notice of Voluntary Dismissal of Def. Marion Coster Only, ECF No. 16.
5

10

Case 1:19-cv-01818-APM Document 29 Filed 02/16/21 Page 11 of 27

II.

LEGAL STANDARD
A.

Summary Judgment

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A “genuine dispute” of a “material fact” exists when the fact is “capable of affecting the
substantive outcome of the litigation” and “the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Elzeneiny v. District of Columbia, 125 F. Supp. 3d 18, 28
(D.D.C. 2015).
In deciding a motion for summary judgment, the court looks at the facts in the light most
favorable to the nonmoving party and draws all justifiable inferences in that party’s favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). To defeat a motion for summary
judgment, the nonmoving party must put forward “more than mere unsupported allegations or
denials”; its opposition must be “supported by affidavits, declarations, or other competent
evidence, setting forth specific facts showing that there is a genuine issue for trial” and that a
reasonable jury could find in its favor. Elzeneiny, 125 F. Supp. 3d at 28 (citing Fed. R. Civ.
P. 56(e)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
B.

Interpretation of Insurance Policy

Zurich’s motion requires the court to interpret the insurance policies issued to UIP. “An
insurance policy is a contract between the insured and the insurer . . . .” Cameron v. USAA Prop.
& Cas. Ins., 733 A.2d 965, 968 (D.C. 1999). 6 The District of Columbia “adheres to an objective
law of contracts, meaning that the written language embodying the terms of an agreement will
govern the rights and liabilities of the parties regardless of the intent of the parties at the time they
6

The parties assume that District of Columbia law applies, so the court does as well.

11

Case 1:19-cv-01818-APM Document 29 Filed 02/16/21 Page 12 of 27

entered the contract, unless the written language is not susceptible of a clear and definite meaning.”
Carlyle Inv. Mgmt., LLC v. Ace Am. Ins., 131 A.3d 886, 894–95 (D.C. 2016) (internal quotation
marks omitted). In “construing” the policy, the court “must first look to the language of the
contract.” Travelers Indem. Co. of Ill. v. United Food & Commercial Workers Int’l Union, 770
A.2d 978, 986 (D.C. 2001) (internal quotation marks omitted). The court “examine[s] the
document on its face, giving the language used its plain meaning, unless, in context, it is evident
that the terms have a technical or specialized meaning.” Carlyle Inv. Mgmt., 131 A.3d at 895
(internal quotation marks omitted). “Where insurance contract language is not ambiguous[,] a
written contract duly signed and executed speaks for itself and binds the parties without the
necessity of extrinsic evidence.” Travelers Indem., 770 A.2d at 986 (alteration omitted) (quoting
In re Corriea, 719 A.2d 1234, 1239 (D.C. 1988)).
III.

DISCUSSION
The Policies provide Zurich with a defense to coverage if UIP fails to provide timely notice

of a Claim. The Policies make it “a condition precedent” to coverage that UIP give “notice of any
Claim” to Zurich “as soon as practicable after” a qualifying officer or employee “first learns of
such Claim, but in no event later than (i) ninety (90) days after expiration of the Policy Period” or
(ii) any extended reporting period. See 2017 Policy at 21, art. VIII, § A.1; 2018 Policy at 21,
art. VIII, § A.1. In the District of Columbia, such “[n]otice provisions in insurance contracts are
of the essence of the contract.” Diamond Serv. Co. v. Utica Mut. Ins., 476 A.2d 648, 652 (D.C.
1984). Thus, where, as here, an insurance “policy expressly makes compliance with its terms a
condition precedent to liability on the part of the insurer, failure to comply with the notice
provision will release the insurer of liability on the policy.” Travelers Indem., 770 A.2d at 991
(alteration omitted) (quoting Lee v. Travelers Ins., 184 A.2d 636, 638 (D.C. 1962)).
12

Case 1:19-cv-01818-APM Document 29 Filed 02/16/21 Page 13 of 27

Zurich argues that it is excused from providing coverage for Marion Coster’s lawsuits on
the ground of untimely notice for two reasons. First, it asserts that the August 17, 2017 Letter, the
October 11, 2017 Letter, and the February 15, 2018 Email each gave rise to a “Claim” under the
2017 Policy; that each of those Claims is related to the subsequently filed lawsuits, thereby
constituting a single Claim under the 2017 Policy; and that UIP’s failure to provide Zurich notice
of those Claims within the 90-day, post-Policy notice period, which expired on May 30, 2018,
relieves Zurich from providing coverage for the lawsuits. See Pl.’s Br. at 15–26. Because the
court finds that the February 15, 2018 Email meets the 2017 Policy’s definition of a “Claim,” the
court does not decide whether the August 17, 2017 Letter and October 11, 2017 Letter are also
Claims under the 2017 Policy. The court also agrees that February 15, 2018 Email is sufficiently
related to the later-filed lawsuits such that they comprise a single Claim, as to which UIP failed to
give notice within the reporting period.
Separately, Zurich contends that, even if the court were to find that none of the above-listed
communications constitutes a Claim, the three lawsuits unquestionably meet the definition of one.
See id. at 16–31. As to those triggering events, UIP’s notice still came too late. According to
Zurich, although UIP made a Claim within the 90-day post-Policy notice period, it was
nevertheless untimely because the 2018 Policy required UIP to provide notice “as soon as
practicable after” it learned of the lawsuits and yet UIP waited more than five months after the last
of the lawsuits to supply notice. The court agrees with Zurich. UIP’s Claim was untimely under
the 2018 Policy.
The court begins its analysis with the 2017 Policy before turning to the 2018 Policy.

13

Case 1:19-cv-01818-APM Document 29 Filed 02/16/21 Page 14 of 27

A.

Notice of the February 15, 2018 Email Under the 2017 Policy

The February 15, 2018 Email’s impact on coverage gives rise to three related inquiries.
First, does the Email meet the 2017 Policy’s definition of a “Claim”? Second, if it is a Claim, is
the February 15, 2018 Email sufficiently related to the three lawsuits for which UIP seeks
coverage, such that those events are treated as a single, indivisible Claim under the 2017 Policy?
Third, if those events constitute a single Claim, was UIP’s notice timely under the 2017 Policy?
1.

Whether the February 15, 2018 Email Is a Claim

The 2017 Policy defines a “Claim” to include “a written demand against any Insured for
monetary damages or non-monetary or injunctive relief commenced by the Insured’s receipt of
such demand, including a written demand that the Insured toll or waive the statute of limitations.”
2017 Policy at 27, art. III, § A.1. Thus, the court must determine if the February 15, 2018 Email
demands “monetary damages or non-monetary or injunctive relief.” Id.
Zurich argues that the February 15, 2018 Email is a “Claim” because it “demands . . .
monetary damages and non-monetary relief” in exchange for a “full release of all claims.” Pl.’s
Br. at 17–20 (emphasis omitted) (internal quotation marks omitted). UIP disagrees for three
reasons. First, UIP argues that the “settlement demand” in the Email was merely a proposal to
finalize UIP’s efforts to acquire Marion Coster’s 50% equity interest. See Defs.’ Opp’n at 22–23.
Second, UIP argues that the Email was mislabeled a “Settlement Communication” and was merely
one of a series of communications concerning a buyout of Marion Coster’s interest. Id. Third,
UIP argues that the February 15, 2018 Email cannot constitute a Claim because “[t]here was no
threat that Mrs. Coster would seek court-ordered relief.” Id. at 23–25.
The court agrees with Zurich that the February 15, 2018 Email included, at least, a demand
for monetary damages and therefore is a Claim under the 2017 Policy. The February 15, 2018
14

Case 1:19-cv-01818-APM Document 29 Filed 02/16/21 Page 15 of 27

Email seeks the payment of money to Marion Coster to satisfy a past injury. See Feb. 15, 2018
Email at 2–3. While many of Marion Coster’s monetary demands undoubtedly relate to a buyout
of her equity interests, both of the proffered settlement frameworks anticipate Marion Coster being
compensated for UIP’s failure to make certain other payments that she claimed her equity stake
entitled her to. Under “Framework A,” Marion Coster would “receive 39% of total payouts on
deals” that were identified in the 2014 term sheet. Id. at 2. Likewise, under “Framework B,”
Marion Coster would receive $300,000 “as compensation for lost dividends/distributions/
management involvement.”

Id. at 3.

In fact, UIP itself characterized the demand under

Framework B as “a reference to amounts [Marion] Coster claimed to be due and owing.” Defs.’
Opp’n at 23. Therefore, on its face, the February 15, 2018 Email demands monetary damages
based on UIP’s past conduct. The Email thus plainly contradicts UIP’s contention that the
settlement offer merely memorializes the terms of an equity buyout.
Additionally, the content of the February 15, 2018 Email refutes UIP’s contention that the
Email did not actually contain a settlement offer or proposal for global resolution. UIP argues that
the Email’s subject—“Inadmissible Settlement Communication – For Settlement Purposes Only,”
Feb. 15, 2018 Email at 2—instead referenced the parties’ long history of “us[ing] terms like
‘settlement’ and ‘global resolution’ to describe their discussions” of a complex buyout framework.
Defs.’ Opp’n at 18, 22. The Email, however, supports a more capacious understanding of the term
“global resolution” because Marion Coster sought to resolve two different disputes:

the

appropriate price for her equity interest and the compensation that she claimed was due and owed
because UIP failed to pay her certain amounts that her equity interest entitled her to. See Feb. 15,
2018 Email at 2–3. The words “global resolution,” read in their context, therefore indicate that

15

Case 1:19-cv-01818-APM Document 29 Filed 02/16/21 Page 16 of 27

Marion Coster was seeking to resolve both the buyout of her equity stake and a dispute over past
unpaid compensation.
The court is also not persuaded by UIP’s third argument—that a claim does not lie unless
it threatens to seek court-ordered relief. UIP relies on St. Paul Mercury Insurance v. RMG Capital
Corp., No. SACV 12-450-JST(MLGx), 2012 WL 2069677 (C.D. Cal. June 7, 2012), for the
proposition that a communication is not a claim unless it “seek[s] court-ordered relief.” See Defs.’
Opp’n at 23–24. But St. Paul Mercury Insurance is inapplicable because that decision was based
on the meaning of “non-monetary relief” rather than the “monetary damages” at issue here.
In St. Paul Mercury Insurance, the California district court considered a policy that provided
coverage for, among other things, “a ‘written demand for non-monetary relief,’” and the court
interpreted the term “relief” to mean “a court-ordered benefit.” See 2012 WL 2069677, at *3–4.
The court held that “under the plain meaning of the Policy, a ‘Claim’ only includes a demand—
i.e., a request for something as a matter of right or insistence on a course of action—for ‘nonmonetary relief’ in the form of a court-ordered benefit.” Id. at *4. In contrast, the court here rests
its decision on Marion Coster’s demand for monetary damages—not her request for non-monetary
relief. Therefore, St. Paul Mercury Insurance is inapposite, and UIP has not cited any authority
to suggest that a claim for monetary damages must include a request for court-ordered damages.
Even if the court were to require some suggestion that Marion Coster intended to seek
court-ordered damages, that requirement would be satisfied here. First, as Zurich notes, the
February 15, 2018 Email contains the header “Inadmissible Settlement Communication – For
Settlement Purposes Only.” Feb. 15, 2018 Email at 2; see also Pl.’s Reply Br. at 12. That header
appears not once but twice on the first page of the Email. Feb. 15, 2018 Email at 2. The only
reason for Marion Coster’s attorney to include such language is if he anticipated that the dispute
16

Case 1:19-cv-01818-APM Document 29 Filed 02/16/21 Page 17 of 27

could lead to litigation—otherwise, the email’s admissibility as evidence would be irrelevant.
Indeed, UIP’s response to the February 15, 2018 Email suggests that both sides anticipated the
possibility that a third party would be called upon to resolve the dispute. In a March 2, 2018 email,
counsel for UIP wrote, “We are not going to be able to reach any amicable agreement if it is to be
based on the valuations that you provided.” Pl.’s Mot., Ex. P, ECF No. 25-19 [hereinafter Mar. 2,
2018 Response] (emphasis added).

Particularly in the context of litigious language like

“inadmissible settlement communication,” contemplating the possibility of a non-amicable
resolution supports an inference that the parties understood the dispute might ultimately be
resolved by a third party, such as a court or mediator.
2.

Whether the February 15, 2018 Email and Marion Coster’s Lawsuits
Constitute a Single Claim Under the 2017 Policy

The court next considers whether the February 15, 2018 Email and Marion Coster’s three
lawsuits constitute a single Claim under the 2017 Policy. The court must address this issue because
only if the Email and lawsuits are a single Claim would the failure to give timely notice of the
Email defeat coverage for the later-filed lawsuits. Put another way, if the February 15, 2018 Email
and lawsuits are not related, and therefore are separate Claims, then the failure to give timely
notice following the Email would not defeat coverage for the lawsuits if they were timely noticed.
The 2017 Policy provides that “[a]ll Claims . . . which arise out of the same Wrongful Act
and all Interrelated Wrongful Acts of Insureds shall be deemed one Claim.” 2017 Policy at 18,
art. III, § D. A “Wrongful Act” encompasses “any error, misstatement, misleading statement, act,
omission, neglect, or breach of duty actually or allegedly committed or attempted” by the insured.
See id. at 29, art. III, § J. And in turn, an “Interrelated Wrongful Act” refers to “all Wrongful Acts
that have as a common nexus any fact, circumstance, situation, event, transaction, cause or series
of causally connected facts, circumstances, situations, events, transactions or causes.” Id. at 16,
17

Case 1:19-cv-01818-APM Document 29 Filed 02/16/21 Page 18 of 27

art. II, § R. Thus, Claims that arise from the same alleged action or series of actions are treated as
one, and such a singular “Claim shall be deemed to be first made on the date the earliest of such
Claims is first made against any Insured, regardless of whether such date is before or during the
Policy Period.” Id. at 18, art. III, § D. Accordingly, UIP’s Claim—and thus its duty to provide
notice—relates back to the first time the Claim was presented to UIP. If the February 15, 2018
Email and Marion Coster’s lawsuits implicate the same underlying wrongful acts, then the
February 15, 2018 Email will serve as the trigger for UIP’s duty to provide timely notice to Zurich
of its Claim.
The February 15, 2018 Email and Marion Coster’s lawsuits all arise from UIP’s purported
failure to honor Marion Coster’s 50% ownership stake. In the verified complaint in the Custodian
Action, Marion Coster explained, “[s]he initiate[d] th[e] action because despite the apparent
success of the Company in recent years, she has been denied any distributions from the Company
since 2015, the year her husband, a founder, died” and has been prevented “from gaining a
meaningful view into the Company’s financial affairs” and barred “from any representation on the
Board.” Custodian Action Compl. ¶ 2. Likewise, in the Federal Action, filed in August 2018,
Marion Coster alleges that “Defendants have engaged in a brazen and unlawful scheme to deny
[her] . . . any financial renumeration from her 50% ownership in UIP, any role in the affairs and
governance of UIP, and any real visibility into the considerable financial success of [UIP].”
Federal Action Compl. ¶ 3. Finally, in the Stock Action, also filed in August 2018, she alleges
that defendants Schwat, Bonnell, and Cox “took action to frustrate [her] efforts” in the Custodian
Action “by issuing stock to Mr. Bonnell” and thereby “dilut[ing] [her] ownership interest.” Stock
Action Compl. ¶ 2. While the Stock Action therefore arose from actions taken after the Custodian
Action and the February 15, 2018 Email, Marion Coster’s allegations construe UIP’s attempt to
18

Case 1:19-cv-01818-APM Document 29 Filed 02/16/21 Page 19 of 27

dilute her ownership interest as a direct response to her attempts to exercise her equity stake. The
conduct underlying the Stock Action is thus causally connected to UIP’s alleged failure to honor
Marion Coster’s ownership stake.
Like the three lawsuits, the February 15, 2018 Email seeks to ensure that “Mrs. Coster
receives fair value for her 50% equity ownership” or otherwise is allowed “to fully participate in
the management of” UIP. Feb. 15, 2018 Email at 2. And as with Marion Coster’s lawsuits, which
alleged she had not received financial renumeration for her equity stake, both Framework A and
Framework B include a demand for compensation for payments that Marion Coster claimed she
was owed on account of her ownership stake. See id. (under Framework A, seeking “39% of total
payouts on” “Past Promotes” from past deals listed on the term sheet); id. at 3 (under Framework B,
seeking “$300,000 . . . as compensation for lost dividends/distributions/management involvement
with regard to” UIP since her husband’s death). The February 15, 2018 Email, like the three laterfiled lawsuits, therefore arises from UIP’s alleged failure to recognize and compensate Marion
Coster in accordance with her purported ownership stake. On its face, the Email shares “a common
nexus” of fact and “cause or series of causally connected facts” with the lawsuits. See 2017 Policy
at 16, art. II, § R.
3.

Timely Notice

Finally, the court must determine whether UIP gave Zurich timely notice of the Claim
asserted in the February 15, 2018 Email. It did not, and UIP does not contend otherwise.
Generally, the 2017 Policy requires UIP to give Zurich notice of a Claim “as soon as practicable
after an Executive Officer or an employee of the Company’s office of general counsel, risk
management, or functionally equivalent departments, if any, first learns of such Claim.” 2017
Policy at 21, art. VIII, § A.1. In no event, however, may UIP give notice “later than (i) ninety (90)
19

Case 1:19-cv-01818-APM Document 29 Filed 02/16/21 Page 20 of 27

days after expiration of the Policy Period” or (ii) the expiration of any extended reporting period.
See id.
The requirement that Claims be made within 90 days from the 2017 Policy’s expiration is
implicated here. The 2017 Policy expired on March 1, 2018. Id. at 8. The deadline for UIP to
have reported the February 15, 2018 Email was therefore May 30, 2018. The parties agree that
UIP did not provide notice of a Claim to Zurich until March 8, 2019. See Pl.’s Br. at 25; Defs.’
Opp’n at 4; Pl.’s Mot., Ryan Decl. Ex. A, ECF No. 25-45. 7 Accordingly, UIP did not give Zurich
notice of its Claim until more than 90 days after the Policy’s expiration date. Zurich therefore is
not obligated to provide coverage to UIP for the three lawsuits brought by Marion Coster.
B.

Notice of the Lawsuits Under the 2018 Policy
1.

Whether UIP Supplied Timely Notice of the Lawsuits

Even if the February 15, 2018 Email is not a Claim under the 2017 Policy, the court would
nonetheless find that UIP’s notice was untimely because UIP did not give Zurich notice of the
lawsuits “as soon as practicable” under the 2018 Policy. See 2018 Policy at 21, art. VIII, § A.1.
Marion Coster’s three lawsuits were filed in the summer of 2018: the Custodian Action was filed
on June 15, 2018, see Custodian Action Compl. at 14; the Stock Action was filed on August 22,

The February 15, 2018 Email is addressed to Baum, UIP’s outside counsel. See Feb. 15, 2018 Email at 1. UIP,
however, has not argued that an executive officer at UIP received notice of the Email at any time other than February
15, 2018—that is, UIP has not suggested that the trigger for UIP to provide notice based on the February 15, 2018
Email was later than February 15, 2018. This is consistent with other facts in the record. For example, UIP argued
in its brief that Baum was hired “in a corporate capacity,” suggesting she may have been serving as general counsel
for UIP with respect to this matter. See Defs.’ Opp’n at 28. Additionally, Bonnell, a member of UIP’s Board of
Directors, testified that he did not “have a specific recollection” of when he first saw the Email, but he “remember[ed]
reading [it] in” the “time frame” around February 15, 2018. Pl.’s Br., Ex. C, Bonnell Dep. Tr., ECF No. 25-6,
at 64:17–20. Bonnell also testified that he remembered having discussions with Schwat, the beneficial owner,
president, and chairman of the Board of Directors of UIP, about whether to accept Marion Coster’s settlement offer
and chose not to accept because of her “misunderstanding” of the term sheet and the improper valuations that she
relied on. Id. at 67:3–16. Both of those concerns were reflected in UIP’s response to Marion Coster’s attorney on
March 2, 2018, see Mar. 2, 2018 Response, which suggests that Bonnell participated in discussions regarding Marion
Coster’s settlement offer before March 2, when UIP responded to the February 15, 2018 Email.
7

20

Case 1:19-cv-01818-APM Document 29 Filed 02/16/21 Page 21 of 27

2018, see Stock Action Compl. at 14; and the Federal Action was filed on August 24, 2018, see
Federal Action Compl. at 23. UIP, however, did not give Zurich notice of the lawsuits until
March 8, 2019—seven months after the third lawsuit was filed and almost nine months after the
first lawsuit was filed. See Pl.’s Mot., ECF No. 25-45, Ex. A; Pl.’s Br. at 25; Defs.’ Opp’n at 4.
Under D.C. law, “[t]he words ‘as soon as practicable’ have uniformly been held to mean
within a reasonable time in view of all the facts and circumstances of each particular case.”
Greenway, 307 A.2d at 755; see also Diamond Serv. Co., 476 A.2d at 652. To determine whether
UIP gave Zurich notice within a reasonable time based on the circumstances of this case, the court
turns to the three factors identified in Starks v. North East Insurance, 408 A.2d 980, 983–85 (D.C.
1979). There, the D.C. Court of Appeals held that whether notice was given within a reasonable
time depends on (1) what the insured could “reasonably have believed was [its] obligation under
the insurance policy,” (2) what the insured could “reasonably have believed about the seriousness
of [the] injury and [its] liability for it,” and (3) what the insured could “reasonably have believed
about the likelihood of a claim being made against [it].” Id. at 983; see also Diamond Serv. Co.,
476 A.2d at 653 (applying the Starks court’s “three-part test to determine whether an insured’s
delay in notifying [its] insurance company of an occurrence was reasonable”).
Before turning to the individual factors, UIP urges that whether its reporting delay was
reasonable or not is a jury question that cannot be resolved on summary judgment. Defs.’ Opp’n
at 1–2, 26. Not so. “Reasonableness will often be a question for the jury, but where, as here, the
evidence as to timing is uncontradicted, reasonableness of the delay may become a question of
law.” Greycoat, 657 A.2d at 768. As demonstrated below, the facts here are not in dispute, and
so the court can decide the reasonableness of UIP’s delay as a matter of law.

21

Case 1:19-cv-01818-APM Document 29 Filed 02/16/21 Page 22 of 27

As to the first Starks factor—what UIP reasonably could have believed its obligations
under the 2018 Policy were—UIP argues that “it was unaware of the potential for coverage . . .
until on or about February 2019” and this ignorance means that its notice was reasonably timely.
See Defs.’ Opp’n at 26–27. Zurich counters that the relevant inquiry is whether UIP was aware of
its notice obligations—not the availability of coverage—and that UIP’s subjective beliefs
regarding its policy coverage are irrelevant to what a reasonable person would believe its
obligations were. See Pl.’s Reply Br. at 18–19.
Both parties’ framings of the relevant inquiry on this first factor miss the mark. The D.C.
Court of Appeals has instructed that the first factor looks to “whether the insured should have
perceived the” occurrence—here the filing of three lawsuits—“to be a reportable occurrence
within the meaning of the policy.” Diamond Serv. Co., 476 A.2d at 653. Whether an incident is
a reportable occurrence turns on whether the incident was “‘sufficiently serious to lead a person
of ordinary intelligence and prudence to believe that it might give rise to a claim for damages.’”
Id. (quoting Starks, 408 A.2d at 983). In considering this question, the D.C. Court of Appeals has
recognized that “[a]n insured is held to know the contents of his policy.” Id. at 653 n.8.
Accordingly, the question before the court is whether a reasonable person, knowing the contents
of the 2018 Policy, would have believed that Marion Coster’s lawsuits would give rise to a claim
for damages.
On that score, once the lawsuits were filed, a reasonable person would have recognized
that the lawsuits not only could have given rise to a claim for damages under the Policy, but
actually did do so. While the Custodian Action and Stock Action primarily seek equitable relief,
Marion Coster also requested attorneys’ fees and costs in both actions, see Custodian Action
Compl. at 14; Stock Action Compl. at 13, which are recoverable under the 2018 Policy. See 2018
22

Case 1:19-cv-01818-APM Document 29 Filed 02/16/21 Page 23 of 27

Policy at 28, art. III, § E (“Loss means the total amount the Insureds become legally obligated to
pay on account of Claims made against them for Wrongful Acts . . . .” (emphasis added)). In
addition, the 2018 Policy provides for UIP to recoup its own attorneys’ fees and costs, regardless
of whether a suit seeks damages. See id. at 14, art. II, § E (defining “Defense Costs,” which include
“reasonable costs, charges, fees (including but not limited to attorney’s fees and expert’s fees) and
expenses” incurred in defending and investigating claims or incurred at the insurer’s request); id.
at 28, art. III, § E (defining “loss” to include “Defense Costs”). And at the very least, the Federal
Action explicitly requests judgment “in an amount to be established at trial,” attorneys’ fees and
costs, and prejudgment interest. See Federal Action Compl. at 22–23. No reasonable person could
conclude that, after being served with three lawsuits, UIP was unaware of a reportable occurrence
under the 2018 Policy. The first factor thus weighs against a finding that UIP gave notice as soon
as was practicable.
The second factor asks whether the alleged injury was serious enough that the insured could
reasonably have believed he would face liability for it. See Diamond Serv. Co., 476 A.2d at 653.
UIP argues that this factor weighs in its favor because Marion Coster did not seek monetary
damages in either the Custodian Action or the Stock Action. Defs.’ Opp’n at 27. Zurich rejects
this argument, countering that Marion Coster sought monetary relief in the form of attorneys’ fees
in the Custodian Action and the Stock Action, that the Federal Action sought compensatory
damages, and that UIP was seeking defense costs from Zurich for each of the lawsuits. Pl.’s Br.
at 19–20.
The court finds that this second factor also weighs against UIP for two reasons. First, as
Zurich argues, UIP wholly ignores that the Federal Action contains an express request for
compensatory damages and that Marion Coster requested attorneys’ fees in each of the lawsuits.
23

Case 1:19-cv-01818-APM Document 29 Filed 02/16/21 Page 24 of 27

See Federal Action Compl. at 22–23; Custodian Action Compl. at 14; Stock Action Compl. at 13.
Thus, UIP’s contention that it faced no risk of a monetary judgment against it is plainly
contradicted by the facts before the court. Second, to the extent that UIP argues that Marion
Coster’s claims were too trivial to trigger coverage under the Policy because the lawsuits did not
request monetary damages, that claim also fails. While some courts have “excused late notice
when there apparently was no injury . . . and no reasonable ground for believing that an injury
might later evolve,” Starks, 408 A.2d at 984, UIP was aware that Marion Coster was claiming an
injury from UIP’s conduct because she filed three lawsuits to that effect. The last of those lawsuits
made clear that Marion Coster was seeking to hold UIP liable for substantial money damages. See
id. at 985 (noting that even where a causal connection between an injury and the insured is weak,
the insured is still “obliged to notify the insurance company” at the point when she “reasonably
should have known the claim was coming”); Diamond Service Co., 476 A.2d at 653 n.11 (similar).
Finally, UIP gains no ground on the third factor—what it could “reasonably have believed
about the likelihood of a claim being made against [it].” Stark, 408 A.2d at 983. UIP argues that
it was “unfathomable” that Marion Coster would file suit against it. Defs.’ Opp’n at 28. Zurich
disagrees, arguing that UIP knew that there was a claim being made against it because it had already
been sued. See Pl.’s Reply at 21–22.
The court again agrees with Zurich. At the time UIP was served with the complaints in
Marion Coster’s three actions, it knew a claim was being made against it. UIP’s argument that it
was “unfathomable” that Marion Coster would sue describes UIP’s position at the time that it
received the written communications preceding the lawsuits that Zurich argues were Claims—not
UIP’s position after it was served with Marion Coster’s lawsuits. Those communications are
irrelevant here, as all of them would have required UIP to give notice under the 2017 Policy. The
24

Case 1:19-cv-01818-APM Document 29 Filed 02/16/21 Page 25 of 27

only events that would have required UIP to give notice to Zurich under the 2018 Policy are the
filing of the Custodian, Stock, and Federal Actions. And as to those lawsuits, once UIP was
actually sued, it could not hold any reasonable belief other than that there was a 100% likelihood
that a claim would be made against it. See Greycoat, 657 A.2d at 769 (finding third factor weighed
against finding of timely notice where insured knew “that it was actually being sued”). The third
factor therefore supports a finding that UIP failed to give Zurich notice as soon as was practicable.
UIP has failed to show that any of the Starks factors justify its delay of seven to nine months
in providing notice of Marion Coster’s lawsuits to Zurich. In a comparable situation, the D.C.
Court of Appeals has held as a matter of law that notice was not given as soon as was practicable
after the insured delayed just five months in providing notice. See id. (“Greycoat, giving notice
more than five months later, simply waited unreasonably long from that date” to give notice). 8
Accordingly, the court concludes that no reasonable jury could find that UIP gave Zurich notice
of Marion Coster’s lawsuits as soon as was practicable, and Zurich is not obligated to provide
coverage to UIP for those lawsuits under the 2018 Policy.
2.

Whether Zurich Must Show Prejudice Arising from the Late Notice

Having found that UIP’s notice was untimely under the 2018 Policy, the court must answer
one last question. UIP argues that the failure to provide timely notice is, in some cases, insufficient
for an insurer to deny coverage. See Defs.’ Opp’n at 28–31. UIP urges that an insurer is required
to show prejudice when notice is untimely but still falls within the policy reporting period.

UIP argues that Greycoat is inapplicable here because the policy at issue required the insured to provide immediate
notice of any suit filed against the insured. Defs.’ Opp’n at 27. However, “courts interpret a requirement of immediate
notice to require notice within a reasonable period of time.” Wash. Sports & Ent. Inc. v. United Coastal Ins., 7 F.
Supp. 2d 1, 12 (D.D.C. 1998). That is the same standard applied to notice provisions that require notice as soon as
practicable. See, e.g., Greenway, 307 A.2d at 755 (“The words ‘as soon as practicable’ have uniformly been held to
mean within a reasonable time in view of all the facts and circumstances of each particular case.”).
8

25

Case 1:19-cv-01818-APM Document 29 Filed 02/16/21 Page 26 of 27

So, here, UIP insists that, because it gave notice of the lawsuits within the 90-day reporting period,
Zurich cannot deny coverage absent prejudice arising from the delay, which Zurich has not shown.
The court finds no merit to UIP’s argument. 9
“The District of Columbia Court of Appeals . . . has been clear that an insurer is not required
to demonstrate actual prejudice before denying coverage on the basis of an insured’s failure to
comply with a contractual notice provision.” Nat’l R.R. Passenger Corp. v. Lexington Ins., 445 F.
Supp. 2d 37, 43 (D.D.C. 2006) (citing Greycoat Hanover F St. Ltd. P’ship v. Liberty Mut. Ins.,
657 A.2d 764, 768 n.3 (D.C. 1995)). In Greenway v. Selected Risks Insurance, which also involved
an insured’s failure to provide notice of a claim “as soon as practicable,” the D.C. Court of Appeals
concluded that its previous decisions “make[] it abundantly clear that actual prejudice to the carrier
is not a necessary element in the defense raised here.” 307 A.2d 753, 754, 756 (D.C. 1973); see
also Waters v. Am. Auto. Ins., 363 F.2d 684, 686, 690 (D.C. Cir. 1966) (considering insurance
policy that required notice “as soon as practicable” and concluding insurer had no obligation “to
establish that it was prejudiced by th[e] delay in receiving notice”); Greycoat, 657 A.2d at 768 n.3
(noting D.C. law had “explicitly rejected” a requirement that the insurer make “a showing of
prejudice . . . in order for a late-notice defense to prevail”). UIP has not identified any decision in
the District of Columbia requiring the insurer to show prejudice from the insured’s delayed notice
or even calling the District’s no-prejudice rule into question, and the clear weight of authority
disclaims UIP’s position.

This argument implicates the analysis with respect to the 2018 Policy only. UIP otherwise concedes that an insurer
need not show prejudice under D.C. law to disclaim coverage when notice is given after a claims-made insurance
policy expires. See Defs.’ Opp’n at 28–29. Because UIP gave notice long after the 2017 Policy expired, no prejudice
inquiry is required as to that Policy.
9

26

Case 1:19-cv-01818-APM Document 29 Filed 02/16/21 Page 27 of 27

Accordingly, the court concludes that, under D.C. law, Zurich is not required to
demonstrate that it was prejudiced by any untimely notice under the 2018 Policy.
V.

CONCLUSION
For the foregoing reasons, the court grants Zurich’s Motion for Summary Judgment, ECF

No. 25, and dismisses UIP’s Counterclaim, ECF No. 12.
A separate final, appealable order accompanies this memorandum.

Dated: February 16, 2021

Amit P. Mehta
United States District Court Judge

27