Prime Insurance Company v. Berkshire Hathaway Homestate Insurance Company

Filing 39

ORDER denying 29 Motion for Summary Judgment; granting in part and denying in part 30 Motion for Partial Summary Judgment as set forth herein.. Signed by Chief Judge Timothy D. DeGiusti on 2/7/2024. (jee)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
PRIME INSURANCE COMPANY,

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Plaintiff,
v.
BERKSHIRE HATHAWAY HOMESTATE
INSURANCE COMPANY,
Defendant.

Case No. CIV-22-626-D

ORDER
Before the Court is Plaintiff Prime Insurance Company’s Motion for Summary
Judgment [Doc. No. 29], to which Defendant Berkshire Hathaway Homestate Insurance
Company (BHHIC) filed a response [Doc. No. 35]. Also before the Court is BHHIC’s
Motion for Partial Summary Judgment [Doc. No. 30]. Prime filed a response [Doc. No.
34], and BHHIC filed a reply in support [Doc. No. 38]. The matters are fully briefed and
at issue.
BACKGROUND
i.

Underlying Litigation

This dispute arises from a coverage issue related to underlying litigation in Tulsa
County District Court, Case No. CJ-2019-4538, Shipman v. Howard, et al. The plaintiff in
the underlying suit, Nathaniel Shipman, alleges he was injured in a vehicular accident when
his car collided with a semi-truck driven by Wendell Howard. Shipman alleges that
Howard was driving in the course and scope of his employment with Swaggin Wagon, Inc.

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(Swaggin Wagon) and/or Myriad Transport & Environmental, Inc. (Myriad). 1 Both
Swaggin Wagon and Myriad are commercial transportation companies.
In the underlying litigation, Shipman brought claims against Howard, Swaggin
Wagon, Prime, and Myriad. For his claims against Swaggin Wagon and Myriad, Shipman
alleges that the entities are vicariously liable and were negligent in training and/or
supervising Howard. Shipman also brought a claim against Prime as Swaggin Wagon’s
insurer [Doc. No. 29-3]. In the underlying litigation, dispositive motions are to be filed by
February 9, 2024, and the pretrial conference is currently scheduled for March 19, 2024. 2
ii.

Lease Agreement

On August 7, 2017, Swaggin Wagon and Myriad entered into an Independent
Contractor Lease Agreement, which contains the following indemnity provision, in
relevant part:
Indemnity. [Myriad] shall defend, indemnify, and hold
harmless [Swaggin Wagon] and its agents, employees, and
representatives, from any and all damages, losses or claims,
including but not limited to attorney fees and costs incurred,
arising out of the performance or nonperformance of this
Agreement by [Myriad]. [Myriad] shall further defend,
indemnify, and hold harmless [Swaggin Wagon] and its agents,
employees, and representatives, from any and all damages,
losses or claims, including but not limited to attorney fees
incurred, relating to any property damage, bodily injury, and/or
any other harm or damage sustained by [Myriad] or [Myriad’s]
personnel arising from the performance or nonperformance of
this Agreement, or caused by any acts or omissions of [Myriad]
[Doc. No. 29-3]. The Court takes judicial notice of the proceedings publicly accessible
through http://www.oscn.net with regard to the underlying litigation.
2
See OSCN, Case No. CJ-2019-4538, Tulsa County District Court, Order filed Nov. 3,
2023,
https://www.oscn.net/dockets/GetCaseInformation.aspx?db=tulsa&number=CJ2019-4538&cmid=3310946 (accessed Feb. 1, 2024).
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or [Myriad’s] personnel. Additionally, [Myriad] shall defend,
indemnify, and hold harmless [Swaggin Wagon] and its agents,
employees, and representatives, from any claims made against
[Swaggin Wagon], or from any loss or damage incurred by
[Swaggin Wagon], including but not limited to, attorney fees
and costs incurred, as a result of the operation, maintenance or
use of the Equipment, which is not directly authorized and
directly related to the performance of this Agreement.
[Myriad’s] obligations to defend, indemnify, and hold
harmless [Swaggin Wagon] are intended to be as broad as the
law allows.
[Doc. No. 29-7, at 2]. The Lease Agreement contains a choice of law provision which calls
for the Lease Agreement to be interpreted according to Oklahoma law. Id. at 8.
iii.

Prime Policy and BHHIC Policy

At the time of the accident, Swaggin Wagon was the named insured under a
Commercial Business Auto insurance policy, policy no. SC1707938, issued by Prime
(Prime policy). The semi-truck operated by Howard was a scheduled vehicle under the
Prime policy. To date, Prime has provided a defense in the underlying litigation to Swaggin
Wagon and Howard based on the terms of the Prime policy.
For the relevant time period, Myriad was the named insured under a Commercial
Auto/Virginia Truckers insurance policy, policy no. 02 TRM 018287 – 02, issued by
BHHIC (BHHIC policy). The semi-truck was also a scheduled vehicle under the BHHIC
policy. Pursuant to the terms of the BHHIC policy, BHHIC has provided a defense to
Myriad, and more recently to Howard, in the underlying litigation.

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The Truckers Coverage Form of the BHHIC policy provides in part:
Section II – Liability Coverage
A. Coverage
We will pay all sums an ‘insured’ legally must pay as damages
because of ‘bodily injury’ or ‘property damage’ to which this
insurance applies, caused by an ‘accident’ and resulting from
the ownership, maintenance, or use of a covered ‘auto’.
We have the right and duty to defend any ‘suit’ for such
damages, even if the ‘suit’ is groundless, false or fraudulent.
However, we have no duty to defend ‘suits’ for ‘bodily injury’
or ‘property damage’ to which this insurance does not apply.
…
[Doc. No. 30-4, at BHHIC00088]. This coverage is limited by exclusions in the BHHIC
policy, to include the following:
B.

Exclusions

This insurance does not apply to any of the following:
…
2.
Contractual
Liability assumed under any contract or agreement. But this
exclusion does not apply to liability for damages:
a.
Assumed in a contract or agreement that is an ‘insured
contract’ provided the ‘bodily injury’ or ‘property damage’
occurs subsequent to the execution of the contract or
agreement….
[Doc. No. 30-4, at BHHIC00070].
iv.

Present Litigation

On July 26, 2022, Prime filed its Complaint in the present action, seeking
declaratory judgments that 1) BHHIC owes a duty to defend and indemnify Swaggin
Wagon and Howard in the underlying litigation; 2) BHHIC is the primary insurer of
Swaggin Wagon and Howard or, alternatively, that BHHIC should defend and provide
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coverage to Swaggin Wagon and Howard on a pro rata basis with Prime; and 3) Prime is
entitled to subrogation, contribution and/or reimbursement, equitable or otherwise, from
BHHIC for all costs, expenses, payments, or potential liability or indemnification resulting
from the underlying litigation on a primary or pro rata basis [Doc. No. 1, at 8].
Both parties moved for summary judgment on whether BHHIC is obligated to
defend and indemnify Swaggin Wagon, and indemnify Howard, in the underlying suit. 3
Prime argues that: 1) the semi-truck is a “covered auto” under the BHHIC policy; 2) the
Lease Agreement is an “insured contract” as defined by the BHHIC policy; 3) the Lease
Agreement contains an indemnity provision, requiring that Myriad defend and indemnify
Swaggin Wagon; and 4) alternatively, BHHIC should provide coverage on a pro rata basis
with Prime based on the BHHIC policy’s “other insurance” provision.
BHHIC contends that it does not owe any affirmative obligation to defend or
indemnify Swaggin Wagon because the “insured contract” provision only confirms that
BHHIC may owe a duty to indemnify its “insured,” Myriad, and not Swaggin Wagon as a
potential third party indemnitee under the Lease Agreement. BHHIC further asserts that
Prime’s claims for reimbursement of costs incurred defending Swaggin Wagon, or a finding
of coverage on a pro rata basis, necessarily fail since BHHIC owes no underlying duties to
Swaggin Wagon. Alternatively, BHHIC contends that the issue of whether BHHIC is
obligated to indemnify either Swaggin Wagon or Howard is premature.

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The parties have resolved the issue of whether BHHIC has a duty to defend Howard.
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STANDARD OF DECISION
Summary judgment is proper “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 material fact is one that “might affect the outcome of the suit
under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
dispute is genuine if the facts and evidence are such that a reasonable jury could return
a verdict for the nonmoving party. Anderson, 477 U.S. at 248. All facts and reasonable
inferences must be viewed in the light most favorable to the nonmovant. Id. at 255.
A movant bears the initial burden of demonstrating the absence of a dispute of
material fact warranting summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). If the movant carries this burden, the nonmovant must then go beyond the
pleadings and “set forth specific facts” that would be admissible in evidence and that
show a genuine issue for trial. See Anderson, 477 U.S. at 248; Celotex, 477 U.S. at 324.
“To accomplish this, the facts must be identified by reference to affidavits, deposition
transcripts, or specific exhibits incorporated therein.” Adler v. Wal-Mart Stores, Inc., 144
F.3d 664, 671 (10th Cir. 1998); see FED. R. CIV. P. 56(c)(1)(A). The inquiry is whether
the facts and evidence identified by the parties present “a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party must prevail as
a matter of law.” Anderson, 477 U.S. at 251-52.
“Cross-motions for summary judgment are treated as two individual motions for
summary judgment and held to the same standard, with each motion viewed in the light
most favorable to its nonmoving party.” Banner Bank v. First Am. Title Ins. Co., 916
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F.3d 1323, 1326 (10th Cir. 2019). When the parties file cross-motions for summary
judgment, the Court is entitled to assume “‘no evidence needs to be considered other
than that filed by the parties.’” Atlantic Richfield Co. v. Farm Credit Bank of Wichita,
226 F.3d 1138, 1148 (10th Cir. 2000) (citation omitted).
DISCUSSION
I.

Choice of Law
As an initial matter, the Court must determine what law applies to Prime’s claims.

A federal court sitting in diversity applies the substantive law of the state in which it sits,
including that state’s choice of law rules. Klaxon Co. v. Stentor Electric Mfg. Co., Inc., 313
U.S. 487, 496-97 (1941). Under Oklahoma law, “[t]he validity, interpretation, application
and effect of the provisions of a motor vehicle insurance contract should be determined in
accordance with the laws of the state in which the contract was made, unless those
provisions are contrary to the public policy of Oklahoma, or unless the facts demonstrate
that another jurisdiction has the most significant relationship with the subject matter and
the parties.” Bohannan v. Allstate Ins. Co., 1991 OK 64, ¶ 30, 820 P.2d 787, 797.
For Prime’s claims that require the Court to interpret the BHHIC policy, BHHIC
argues that Virginia law should apply because the BHHIC policy was issued in Virginia.
Prime concedes that Virginia law should apply to the interpretation of the BHHIC policy
[Doc. No. 34, at 6], but argues that the Lease Agreement should be interpreted in
accordance with Oklahoma law. In turn, BHHIC concedes that Oklahoma law applies to
the interpretation of the Lease Agreement [Doc. No. 35, at 17]. Accordingly, the Court will

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apply Virginia law when interpreting the BHHIC policy and Oklahoma law when
interpreting the Lease Agreement.
Under both Oklahoma and Virginia law, the insured has the burden of showing that
a covered loss occurred, while the insurer has the burden of establishing an exclusion
precludes coverage. Pitman v. Blue Cross and Blue Shield of Okla., 217 F.3d 1291, 1298
(10th Cir. 2000) (“A basic rule of insurance law provides that the insured has the burden of
showing that a covered loss has occurred, while the insurer has the burden of showing that
a loss falls within an exclusionary clause of the policy.”); see also Nationwide Mutual Ins.
Co. v. Overlook, LLC, 785 F.Supp.2d 502, 515 (E.D. Va. May 13, 2011).
II.

BHHIC’s Duty to Defend and/or Indemnify Swaggin Wagon
Prime seeks summary judgment on BHHIC’s duty to defend and indemnify Swaggin

Wagon. Prime bases its assertion of coverage on its arguments that the truck is identified
as a “covered auto” in the BHHIC policy; and the Lease Agreement is an “insured contract”
as defined by the BHHIC policy. BHHIC contends that, even assuming the truck is a
“covered auto” and the Lease Agreement is an “insured contract,” the BHHIC policy at
most provides coverage only for its “insured,” Myriad.
A. Covered Auto Provision (BHHIC Policy)
Prime contends that BHHIC should provide coverage to Swaggin Wagon on a
primary basis because the truck is listed as a “covered auto” in the BHHIC policy. Missing
from Prime’s summary judgment briefing, however, is any assertion that Swaggin Wagon
is an “insured” under the BHHIC policy. Under the BHHIC policy, BHHIC “will pay all
sums an ‘insured’ legally must pay as damages because of ‘bodily injury’ or ‘property
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damage’ to which this insurance applies….” [Doc. No. 30-4, at BHHIC00088]. Prime
repeatedly asserts that it must only show the truck to be a “covered auto” for BHHIC to
provide primary coverage to Swaggin Wagon. [Doc. No. 29, at 11-12] (“Because the truck
is a scheduled auto, and because the BHHIC policy covers scheduled autos, the policy has
been triggered and BHHIC is required to provide for indemnity and defense on a primary
basis in the underlying litigation….”). Such an argument ignores the plain terms of the
BHHIC policy, pursuant to which BHHIC is obligated to its “insured.” Without arguing
that Swaggin Wagon is an “insured” or “additional insured” under the BHHIC policy,
Prime has failed to establish that BHHIC has a duty to defend or indemnify Swaggin Wagon
based on the truck being a “covered auto.”
B. Insured Contract Provision (BHHIC Policy)
Prime also asserts that BHHIC owes a duty to defend and indemnify Swaggin
Wagon because the Lease Agreement, entered into between Myriad and Swaggin Wagon,
is an “insured contract” under the BHHIC policy. The “insured contract” provision is found
in the BHHIC policy’s exclusions for contractual liability:
B.

Exclusions

This insurance does not apply to any of the following:
…
2.
Contractual
Liability assumed under any contract or agreement. But this
exclusion does not apply to liability for damages:
a.
Assumed in a contract or agreement that is an ‘insured
contract’ provided the ‘bodily injury’ or ‘property damage’
occurs subsequent to the execution of the contract or
agreement….

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[Doc. No. 30-4, at BHHIC00070]. “Insured contract” is defined as “[t]hat part of any other
contract or agreement pertaining to your 4 business … under which you assume the tort
liability of another to pay for ‘bodily injury’ or ‘property damage’ to a third party or
organization. Tort liability means a liability that would be imposed by law in the absence
of any contract or agreement.” Id. at BHHIC00079. “Insured contract” is further defined
as “[t]hat part of any contract or agreement, entered into, as part of your business,
pertaining to the rental or lease, by you or any of your ‘employees,’ of any ‘auto.’” Id.
Prime contends that, because the Lease Agreement is an “insured contract,” and the
Lease Agreement provides that Myriad will defend and indemnify Swaggin Wagon for
certain losses, BHHIC has an affirmative duty to defend and indemnify Swaggin Wagon in
the underlying litigation. In response, BHHIC seeks summary judgment on its argument
that the BHHIC policy is neither primary to, nor concurrent with, Prime’s coverage. As
with the “covered auto” language, BHHIC asserts that the “insured contract” provision
creates, at most, a duty in BHHIC to indemnify its insured, Myriad, for damages assumed
in the Lease Agreement. For support, BHHIC cites to Mulvey Constr., Inc. v. Bituminous
Cas. Corp., Civ. No. 1:07-0634, 2013 WL 1385405 (S.D. W. Va. Apr. 3, 2013)
(unpublished), aff’d in pertinent part, 571 F. App’x 150 (4th Cir. 2014).
In Mulvey, the court applied Virginia law to the question of whether a policy’s
“insured contract” language created an affirmative obligation for the insurer to defend and
indemnify a third party indemnitee. Mulvey Constr., Inc., 2013 WL 1385405, at *4. In that

As used throughout the BHHIC policy, “you” and “your” refer to the named insured,
Myriad [Doc. No. 30-4, at BHHIC00067].

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case, McDonald’s had hired Mulvey to construct a McDonald’s restaurant, and Mulvey
entered into a subcontract with DCI/Shires to build a retaining wall for the project. Id. at
*1. Pursuant to the terms of the subcontract, DCI/Shires agreed to place Mulvey and
McDonald’s on its insurance policy issued by Bituminous. Id. Although Mulvey and
McDonald’s received certificates of insurance reflecting that they had been named as
additional insureds, for some reason Mulvey and McDonald’s were never actually added
to the policy as additional insureds. Id. Thereafter, a wrongful death action was brought
against McDonald’s, Mulvey, and DCI/Shires, alleging that the retaining wall fell on and
killed a city employee while he was repairing a sewage line break at the property. Id.
Because neither McDonald’s nor Mulvey had been named as additional insureds on the
Bituminous policy, Bituminous refused to defend or indemnify either entity in the
underlying litigation. Id.
After settlement of the underlying litigation, Mulvey and its insurer (One Beacon)
sought declaratory judgments, in part, that Mulvey’s subcontract with DCI/Shires was an
“insured contract” under the Bituminous policy; and that Bituminous owed Mulvey a duty
to defend and indemnify it in the underlying litigation. Id. at *2. The Bituminous policy
provided coverage for damages assumed in an “insured contract,” which was defined as
“[t]hat part of any other contract or agreement pertaining to your business … under which
you assume the tort liability of another party to pay for ‘bodily injury’ or ‘property damage’
to a third person or organization.” Id. at *6.
Notwithstanding the breadth of the indemnification provision of the subcontract, the
court found:
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The ‘insured contract’ provision in the Bituminous Policy
merely provides coverage to its insured; it does not extend
coverage to third parties.… Even assuming that the subcontract
between Mulvey and DCI is an insured contract within the
definition of the Bituminous Policy, it does not make Mulvey
an additional insured under that policy. Rather, it only obligates
Bituminous to provide coverage to DCI for any damages DCI
incurs as a result of the subcontract. For example, if Mulvey
had … received an award of damages against DCI, Bituminous
would be liable to DCI for those damages.
Id. at *7. The Mulvey court contrasted the Bituminous policy with one that explicitly
“makes a party to an insured contract an insured under that policy.” Id. Ultimately, the court
held that because Mulvey was not an additional insured under the policy, it was not entitled
to coverage. Id. (collecting cases holding a party to an “insured contract” is not entitled to
a defense and/or coverage from an insurer without being a named or additional insured in
the subject policy).
In this case, the BHHIC policy contains substantially identical language as that
analyzed by the Mulvey court. In its response, Prime offers no authority to counter
BHHIC’s assertion that the “insured contract” provision does not create an affirmative duty
in BHHIC to defend or indemnify Swaggin Wagon as a mere party to the Lease Agreement.
Rather, Prime switches its focus to Myriad being the “end recipient of any loss incurred by
Swaggin Wagon or Mr. Howard.” [Doc. No. 34, at 8]. Like in Mulvey, Prime’s argument
fails because the BHHIC policy obligates BHHIC to provide coverage for its insured,
Myriad, and not for any entities with whom Myriad may enter into an “insured contract.”
For purposes of BHHIC’s motion for summary judgment, for which BHHIC argues
it does not owe any affirmative duties to Swaggin Wagon based on the “insured contract”
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provision of the BHHIC policy, the Court views all reasonable inferences in favor of Prime.
Even doing so, Prime has failed to meet its burden to show that Swaggin Wagon is an
“insured” under the BHHIC policy, and thus has failed to establish that BHHIC is obligated
to defend or indemnify Swaggin Wagon in the underlying litigation. Assuming without
deciding that the Lease Agreement is an “insured contract” under the BHHIC policy, 5 the
policy makes clear that BHHIC’s duties are owed to Myriad for damages assumed in an
insured contract. [Doc. No. 30-4, at BHHIC00088].
For these reasons, BHHIC is entitled to summary judgment that it is not obligated
to defend or indemnify Swaggin Wagon in the underlying litigation based on the “covered
auto” or “insured contract” provisions in the BHHIC policy. Prime’s cross-motion for
summary judgment will be denied on the same grounds.
III.

Pro Rata Coverage and/or Reimbursement Based on “Other Insurance”
Provision

Alternatively, Prime seeks summary judgment on its argument that the BHHIC
policy, which contains an “other insurance” provision, has been “triggered” and should
provide coverage on a pro rata basis with Prime’s policy. The “other insurance” provision
in the BHHIC policy provides that “this Coverage Form’s Liability Coverage is primary
for any liability assumed under an ‘insured contract’.” [Doc. No. 30-4, at BHHIC00077].

The Court declines to decide whether the Lease Agreement is an “insured contract” under
the BHHIC policy because such a finding would not render Swaggin Wagon an “insured”
under the BHHIC policy. For this reason, the Court denies both parties’ motions for
summary judgment on whether the Lease Agreement implicates the “insured contract”
provision of the BHHIC policy.

5

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In its cross-motion, BHHIC argues that because Swaggin Wagon is not entitled to
any coverage under the BHHIC policy, Prime’s remaining Swaggin Wagon-related claims
regarding priority of coverage and reimbursement from BHHIC necessarily fail. The Court
agrees. Prime’s reliance on the BHHIC policy’s “other insurance” provision is misplaced.
“Other insurance” provisions merely define an insurer’s responsibility for payment when
other insurance coverage is available for the same risk and same insured. See Med.
Protective Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Penn., 25 F. App’x 145, 146 n.1
(4th Cir. 2002) (unpublished) (applying Virginia law, “[a]n ‘other insurance’ clause applies
when two or more insurance policies cover the same risk for the benefit of the same
person.”). Here, because Swaggin Wagon is not entitled to coverage under the BHHIC
policy, its “other insurance” provision does not render BHHIC obligated to provide pro rata
coverage, or to reimburse Prime, for Swaggin Wagon-related expenses. In its response,
Prime does not attempt to argue that the BHHIC policy and Prime policy covered the same
risk for the same insured, nor does Prime cite to any authority for its contention that the
BHHIC policy’s “other insurance” provision mandates concurrent coverage where Prime’s
insured, Swaggin Wagon, is not an “insured” under the BHHIC policy.
Even viewing all reasonable inferences in favor of Prime, Prime has failed to
establish its entitlement to reimbursement or concurrent coverage with respect to Swaggin
Wagon based on the BHHIC policy’s “other insurance” provision. Accordingly, Prime’s
motion for summary judgment will be denied on this issue, and BHHIC’s motion for
summary judgment will be granted.

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IV.

BHHIC’s Duty to Indemnify Howard
Prime seeks a ruling that, under the BHHIC Policy, BHHIC has a duty to indemnify

Howard in the underlying suit. “The duty to indemnify ‘refers to an insurer’s responsibility
to pay a monetary award when its insured has become liable for the covered claim.’”
Nautilus Ins. Co. v. Strongwell Corp., 968 F.Supp.2d 807, 820 (W.D. Va. June 5, 2013)
(citation omitted) (applying Virginia law). Generally, “it would be ‘premature’ to rule on
[a party’s] duty to indemnify while the underlying action remains pending.” Nautilus Ins.
Co., 968 F.Supp.2d at 821. This is because the duty to indemnify, unlike the duty to defend,
relies on “litigated facts” as opposed to mere allegations of the underlying complaint. Id.;
see also Builders Mut. Ins. Co. v. Futura Group, L.L.C., 779 F.Supp.2d 529, 534-35 (E.D.
Va. Apr. 21, 2011) (“[W]hen there is an underlying state court suit, the legal analysis
necessary for determination of the duty to indemnify must ordinarily await the ultimate
factual findings in the state court suit.”).
Based on the foregoing, BHHIC contends that it would be premature to rule on
whether it owes a duty to indemnify Howard in the underlying suit. Especially considering
the parties have yet to file dispositive motions in the underlying litigation, the Court agrees.
In response, Prime does not provide the Court with any convincing reasons to depart from
this general rule. Rather, Prime asks that the Court make several other declaratory rulings,
most of which were not included in Prime’s complaint or motion for summary judgment.
For instance, the Court is not inclined to issue an order finding that “Myriad is contractually
liable for the defense and indemnity of Swaggin Wagon” when 1) Myriad is not a party to
this action; and 2) Prime did not seek such a ruling in its complaint or dispositive motion.
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For these reasons, the Court declines to rule on whether BHHIC owes a duty to indemnify
Howard at this juncture, and Prime’s Motion for Summary Judgment [Doc. No. 29] is
denied as to this point.
CONCLUSION
IT IS THEREFORE ORDERED that Prime’s Motion for Summary Judgment
[Doc. No. 29] is DENIED, and BHHIC’s Motion for Partial Summary Judgment [Doc. No.
30] is GRANTED in part and DENIED in part, as set forth herein.
IT IS SO ORDERED this 7th day of February, 2024.

TIMOTHY D. DeGIUSTI
Chief United States District Judge

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