Opinion
Case No. SACV 03-413 DOC (MLGx).
May 4, 2004
ORDER GRANTING DEFENDANT'S MOTIONS FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGEMENT
Before the Court are the parties' cross-motions for summary judgment. After considering all moving, opposing, and replying papers, oral argument on May 3, 2004, and for all the reasons set forth below, the Court GRANTS Defendant's two motions for summary judgment or summary adjudication and DENIES Plaintiff's motion.
As a preliminary matter, both parties object to evidence submitted in support of the summary judgment motions. To the extent the Court relies on the evidence in this Order, such objections are OVERRULED. Both parties also request that the Court take judicial notice of certain exhibits. A Court may take judicial notice of facts "not subject to reasonable dispute" because they are either "(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201. All of these documents are pleadings, motions, or other court papers filed by the parties and/or orders of a court. Where necessary, the Court takes judicial notice of these documents.
I. BACKGROUND
From August 1, 1997 through August 1, 2000, Plaintiff AIU Insurance Company ("AIU") issued a commercial umbrella excess insurance policy with a general aggregate limit of $20,000,000 to Swinerton Incorporated ("Swinerton"), a general building contractor licensed in California (the "Excess Policy" or "AIU's Policy"). Defendant St. Paul Fire and Marine Insurance Company ("St. Paul") issued numerous successive commercial general liability primary insurance policies to Swinerton, only three of which are at issue and which cover the same time period as AIU's excess policies (the "Primary Policies" or "St. Paul's Policies"). Each of St. Paul's policies had a policy term of one year and policy limits of $2,000,000 per year for each "project" (defined as any work site on which the insured's work is not yet completed), and $2,000,000 total per year for products and completed work. (Def.'s Mot. for Summ. J. Ex. 1 at 40, 48). Thus, the total liability limit for products and completed work for the three primary policies is $6,000,000.
Completed work is defined as the insured's work that is completed at the earliest of the following times, including work that may need service, maintenance, correction, repair or replacement, but is otherwise complete: 1) when all of the work called for in the insured's contract has been completed; 2) when all of the work to be done at the work site has been completed, if the insured's contract calls for work at more than one site; or 3) when that part of the work at the work site has been put to its intended use by any person or organization, other than another contractor or subcontractor working on the project. (Def.'s Mot. for Summ. J., Ex. 1 at 48).
There is some dispute about the timing and content of St. Paul's advisories to AIU that St. Paul's primary policy limits were either reaching exhaustion or had been exhausted. However, St. Paul acknowledges that its January 3, 2003 statement that the policies were exhausted was incorrect. Upon being advised of its error(s) by AIU's counsel in February, St. Paul revoked its claim of exhaustion on February 11, 2003, before this lawsuit was filed and before AIU made any obligatory payments on behalf of Swinerton. St. Paul contends that its subsequent May 5, 2003 contribution under a reservation of rights of $707,366.00 to settle the action styled Dreamworks v. Swinerton Builders, et al., Los Angeles Superior Court, Case No. BC 271733 ( "Dreamworks") more than exhausted the primary policy limits.
In reliance on St. Paul's purportedly false representation that the policy limits were exhausted, Swinerton made demands to AIU to undertake the obligation of its defense and indemnification with respect to all current and future liability claims brought against Swinerton. AIU, in response, performed a comprehensive audit of St. Paul's claim files. Although AIU disputes that St. Paul's policy limits are exhausted, AIU contributed in the same amount as St. Paul to indemnity payments made on Swinerton's behalf in the Dreamworks settlement.
AIU filed an action in State Court on April 1, 2003, alleging various claims relating to allegations that St. Paul improperly and prematurely exhausted the limits of the Primary Policies and misrepresented the status of exhaustion to AIU. St. Paul removed the action on May 1, 2003, and then moved to dismiss portions of AIU's Complaint for failure to state a claim upon which relief can be granted. On June 13, 2003, the Court granted the motion with leave to amend, dismissing AIU's First, Second, Fourth, Fifth, Sixth, and Seventh causes of action without prejudice.
AIU filed a First Amended Complaint on June 17, 2003, and St. Paul moved to dismiss AIU's Second, Fourth, Fifth, and Sixth Causes of Action and to strike paragraphs 11(a) and 11(g). On August 20, 2003, the Court granted St. Paul's motion to strike paragraphs 11(a) and 11(g) with respect to the First Cause of Action, and denied AIU's request to amend. On August 26, 2003, the Court granted St. Paul's motion to dismiss AIU's Second Cause of Action with prejudice, and granted St. Paul's motion to dismiss AIU's Sixth Cause of Action without prejudice. The Court denied St. Paul's motion to dismiss AIU's Fourth and Fifth Causes of Action.
On September 25, 2003, AIU filed a Second Amended Complaint ("SAC"), and St. Paul again moved to strike portions of the SAC, and, to dismiss the Fifth and Eighth Causes of Action. Both parties also moved for sanctions pursuant to 28 U.S.C. § 1927. Before the Court ruled on the motion, the parties stipulated to strike paragraph 13(h). On November 12, 2003, the Court granted St. Paul's motion to strike paragraphs 26(a) and 26(b), as well as AIU's claims to recover audit expenses and for punitive damages. The Court reiterated its prior ruling that AIU is only entitled to sue as Swinerton's equitable subrogee. The Court denied St. Paul's motion to dismiss AIU's Fifth and Eighth causes of action. The Court also denied both parties' requests for sanctions.
AIU now brings a motion for summary judgment as to all of its remaining claims, arguing that (1) St. Paul prematurely exhausted its policy limits by misapplying its payments against the products/completed operations policy limits; and (2) St. Paul is required by the terms of its policy to recover other available insurance either through contribution or equitable subrogation but it has failed to do so. St. Paul brings a motion for summary judgment seeking declaratory relief that the primary policy limits are exhausted and seeking reimbursement for payments made over those limits. St. Paul also brings a cross-motion for summary judgment as to all of AIU's claims.
II. LEGAL STANDARD
Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
The Court must view the facts and draw inferences in the manner most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994 (1962). However, the existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; to defeat the motion, the non-moving party must affirmatively set forth facts showing there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2510 (1986). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial. Id. at 256, 106 S.Ct. at 2514. When the non-moving party bears the burden of proving the claim or defense, the moving party can meet its burden by pointing out the absence of evidence of a genuine issue of material fact from the non-moving party. Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir. 1990). The moving party need not disprove the other party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 So. Ct. 2548, 2553-54 (1986).
When the moving party meets its burden, the "adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." Fed.R.Civ.P. 56(e). "The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for [the opposing party]." Anderson, 477 U.S. at 252, 106 S.Ct. at 2512.
III. ANALYSIS
A. Application of Policy Limits
AIU contends that St. Paul misapplied payments in 15 claims by Swinerton, by allocating them against the product/completed work (collectively, "completed work") coverage category which is "capped" at $2 million per policy year, rather than against the premises/ongoing operations (collectively, "ongoing operations") coverage category, which applies separate limits of up to $2 million for each project per policy year. AIU argues such misapplication prematurely exhausted the primary coverage limits and caused Swinerton to utilize its excess coverage before it should have done so.
As to other claims under the Primary Policies, AIU is not disputing the allocation of one claim, one claim (for which partial indemnity has been paid) is pending an arbitration determination regarding liability, and four claims are currently pending with no payments having been made as yet, for a total of 21 claims relevant to this matter. (Pl.'s Mot. for Summ. J. at 11, fn. 37).
The crux of AIU's argument is that St. Paul's use of the phrase "results from" as opposed to the "standard" "arises out of" operates to narrow the scope of completed work coverage to damage specifically caused by the completed work, and thus requires reallocation of all but one claim to the ongoing operations coverage category. AIU argues that St. Paul intended this wording to impose a requirement for a greater causal connection between the damages and the causes. (Pl.'s Reply at 5). The meaning and application of language in an insurance policy is purely an issue of law. Acceptance Ins. Co. v. Syufy Enter.'s, 69 Cal.App.4th 321, 325 (Ct.App. 1999).
The St. Paul Policies use the term "results from" with regard to both its completed operations and ongoing operations coverages as follows:
General total limit. . . . We'll apply this limit separately to the combined total of all covered bodily injury, property damage and medical expenses that result from:
"Your projects" is defined as any work site on which your work is not yet completed.
• each of your premises; and . . .
However, this limit doesn't apply to covered bodily injury and property damage that results from your products and completed work.
Products and completed work total limit. This is the most we'll pay for the combined total of all covered bodily injury and property damage that:
• results from your products and completed work; and
• happens in a policy year.
The Court rejects AIU's argument for a number of reasons. First, the only authority AIU cites for its contention that "results from" is more restrictive than "arising out of" is a district court case in another circuit that construes the term "arising out of" in part by contrasting it with the term "caused by." See Traveler's Indem. Co. of Ill. v. Millard Refrigerated Serv.'s, 2001 U.S. Dist. LEXIS 7927 at *14 (D. Neb.) ("arising out of" encompasses more than the words "caused by"). In contrast, while AIU raises some valid criticisms regarding the precedential value of the California and Ninth Circuit cases cited by St. Paul, they do tend to show that — to the extent these courts have compared or construed these terms — these courts have found no significant distinction. The weight of such authority is arguably increased by a recent case, Vitton Constr. Co. v. Pac. Ins. Co., 110 Cal.App.4th 762 (Ct.App. 2003). In Vitton, a subcontractor, PEI, was required to carry general liability insurance, including completed operations coverage, and was required to name the general contractor, Vitton, as an additional insured. Id. at 763. The primary policy defined as an additional insured any party the subcontractor was contractually obligated to add as such, provided that such a party would only be considered an additional insured "with respect to liability arising out of . . . `[y]our work' for that additional insured by or for you." Id. at 764 (emphasis added). PEI's excess policy followed the underlying policy. Id.
Moreover, most of the criticisms AIU levels in its Reply at the California and Ninth Circuit cases cited by St. Paul also apply to AIU's authority: 1) the case attempts to equate a different term "caused by" with the term actually used in the policies; 2) the court was not addressing coverage, but rather the broader duty to defend; and 3) the court only construed the term "arising out of" and merely stated in passing that it encompassed more than the words "caused by."
PEI laid decking for the roof structure of a warehouse, and cut holes in the decking for skylights. Id. After PEI's work was completed, an employee of another subcontractor was injured when he fell through one of the uncovered roof holes PEI had cut in the decking, and he sued PEI and Vitton among others. Id. Vitton's excess insurer contributed to the settlement and sued PEI's excess insurer on the ground that Vitton was an additional insured entitled to coverage. Id. at 765. PEI's excess insurer argued that Vitton was not an additional insured because Vitton's liability did not "arise out of" work performed by PEI since Vitton, not PEI, was responsible for making the holes safe. It additionally argued that Vitton was not an additional insured because the accident occurred after PEI had completed its work. Id. at 765, 769. The court rejected PEI's excess insurer's arguments. The court held that liability "arising out of" the named insured's work requires only a minimal causal connection and therefore covers the additional insured without regard to whether the injury was caused by the negligence of the named insured. Id. at 767-68. More important, as to the insurer's second argument, the court held that the primary policy extended coverage to liability resulting from PEI's completed operations and therefore coverage was not limited to liability arising from events that had occurred during the subcontractor's operations. Id. at 768. Thus, the court used the terms interchangeably for purposes of its coverage analysis (whether the policy itself used the term or the court imported it).
The court also noted, in passing, that previous California cases gave a consistently broad interpretation to phrases such as "arising out of," "arising from," and "resulting from" — again making no distinction among them. Id. at 767. Thus, regardless of the criticisms that can be leveled at the underlying cases regarding whether they actually stand for this proposition in the CGL context, the developing weight of authority clearly points to the courts making no distinction among these terms in a variety of contexts.
Second, even if the Court were to accept, merely for the sake of argument, AIU's more restrictive interpretation of "resulting from," AIU provides absolutely no authority that such an interpretation actually serves to shift coverage from the completed work category to the ongoing operations category. The completed work category provides coverage for accidental bodily injury or property damage following completion of the insured's work or operations. Blackhawk Corp. v. Gotham Ins. Co., 54 Cal.App.4th 1090, 1096 (Ct.App. 1997); see also Croskey, Heeseman Johnson, CAL. PRAC. GUIDE: INSURANCE LITIGATION § 7:1429 (The Rutter Group 2003). Thus, events that occur after a project is completed are evaluated under the completed work provisions for coverage. A more restrictive causality requirement may serve to exclude certain claims that would otherwise be covered under this category — for example, a claim like that in Vitton, supra, might be excluded. However, the Court sees no basis for AIU's argument that instead the result is to shift such claims to ongoing operations coverage.
Likewise, the ongoing operations category provides coverage for damages from an event that occurs prior to completion of the insured's work or operations.
AIU contends that the answer to the question, "What did the damages result from?" determines the applicable coverage and its corresponding limits. It further contends that damages result from the negligent construction or design defect or faulty workmanship that necessarily occurs while operations are progress. However, the insuring clause looks to the "event," not to the underlying wrongful act. An "event" refers to the "accident" causing damage, not the performance of the work or faulty product that created the potential for future damage. See, e.g., Maples v. Aetna Casualty Surety Co., 83 Cal.App.3d 641, 644 (Ct.App. 1978). Even under a "continuous injury" trigger, the event causing the damage is the trigger, although it may have occurred over successive policy periods and may not have manifested itself for some period of time. Montrose Chem. Corp. v. Admiral Ins. Co., 10 Cal.4th 645, 675 (1995).
AIU's misinterpretation of completed work coverage is also evident from the definition in the policy:
"Your completed work means your work that is completed at the earliest of the following times, including work that may need service, maintenance, correction, repair or replacement, but which is otherwise complete . . ."
(Def.'s Mot. for Summ. J. at 48) (emphasis added). Clearly, most if not all required correction or repair would be attributable to errors or defects made while the work was ongoing. Thus, by its own definition, this fact does not change completed work back to ongoing operations. AIU does not argue that the "event" in any of the claims occurred before completion of the insured's work or operations.
Third, AIU's interpretation violates a number of basic principles of contract interpretation. "The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties." Bank of the West v. Super. Ct, 2 Cal.4th 1254, 1264 (1992) ( citing Cal Civ. Code § 1636). If possible, this intent is inferred solely from the written provisions of the policy. [cite] Terms must be given their "ordinary and popular sense," unless the parties have used them in a technical sense or given them special meaning. [cite] Here, AIU offers no evidence that the parties mutually intended a special meaning for "resulting from" that would create substantially different coverage than under a standard CGL policy. Rather, it offers an expert declaration that the insurance industry and risk managers impart special meaning to the term. (Ligeros Decl. ¶ 9). However, "[a]n insurance policy `should be read as a lay[person] would read it and not as it might be analyzed by an attorney or an insurance expert.'" Md. Cas. Co. v. Nationwide Ins. Co., 65 Cal.App.4th 21, 32 (Ct.App. 1998) (citations omitted). Thus, such a "professional interpretation," even if true, is not relevant for purposes of contract interpretation without other indicia that both parties to the contract understood the term to have special meaning.
Additionally, contrary to AIU's contention, its interpretation does make completed work coverage largely illusory. A focus on the wrongful act versus the event always brings coverage under ongoing operations because that is when any wrongful act occurs. This is significant because the coverages are not equivalent and, in important respects, completed work coverage provides broader coverage than ongoing operations coverage. Although ongoing operations coverage potentially offers higher limits of coverage, completed operations coverage offers exceptions for certain types of claims that are excluded under ongoing operations coverage — in other words, it operates to give back coverage. For example, under ongoing operations, there is an exclusion for property damage "to that particular part of any property which must be restored, repaired or replaced because your work was incorrectly performed on it. But we won't apply this exclusion part to property damage that results from your completed work." (Def.'s Mot. for Summ. J. Ex. 1 at 52) (emphasis added). Likewise, completed operations coverage provides coverage for property damage that is caused by the work itself if such work was "done for you by others." (Id.).
As AIU's LA Convention Center example shows, under its interpretation the only type of claim that could be covered under completed work is a completely fortuitous event. The damages in the LA Convention Center claim resulted from the City driving forklifts on the flooring surface, which then delaminated. As AIU notes, there is no indication in St. Paul's files of any construction or product defect that led to the delamination. The Court is hard-pressed to see why there would be any coverage under St. Paul's liability policy for such a claim. It may be that St. Paul thought it was prudent to contribute a trivial amount, $5,000, to avoid litigation-related expenses. (Pl.'s Separate Statement of Facts No. 197).
This leads to another principle of contract interpretation: Since completed work coverage operates as a coverage provision, it must be interpreted broadly to protect the insured's reasonable expectations, whereas AIU urges a narrowing interpretation. Montrose, 10 Cal.4th at 667.
Finally, AIU is asserting that, because of St. Paul's own prior arguments and because of the understanding of professionals in the insurance industry, the term must be interpreted to be different than standard language. However, "[i]f the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it." Bank of the West, 2 Cal.4th at 1264-65 (citations omitted). "This rule, as applied to a promise of coverage in an insurance policy, protects not the subjective beliefs of the insurer but, rather, `the objectively reasonable expectations of the insured.'" Id. at 1265. Thus, even if St. Paul has argued previously that its language is more restrictive, to the extent such language would operate to deprive its insured of coverage, authority holds that St. Paul's belief is irrelevant unless such a coverage limitation is communicated to the insured in a plain, clear and conspicuous manner. DeMay v. Interinsurance Exch. of Auto. Club of S. Cal., 32 Cal.App.4th 1133, 1137 (Ct.App. 1995). Moreover, "under settled principles so long as coverage is available under any reasonable interpretation of an ambiguous clause, the insurer cannot escape liability." Id. ( quoting State Farm Mut. Auto. Ins. Co. v. Jacober, 10 Cal.3d 193, 197 (1973)) (emphasis added). AIU cannot be heard to argue that the insurer would not be escaping liability since the coverage would simply be shifted; as discussed above, the coverages are not equivalent nor is ongoing operations coverage always broader.
The Court also agrees that St. Paul is not judicially estopped from asserting a position that may be inconsistent with its earlier position. Judicial estoppel is limited to "cases where the court relied on, or `accepted,' the party's previous inconsistent position." Hamilton v. State Farm Fire Cas. Co., 270 F.3d 778, 783 (9th Cir. 2001).
Therefore, for all the above reasons, AIU's interpretation fails.
B. "Excess Only" Policy Clauses
AIU contends that the St. Paul Policies are excess over all other policies in which Swinerton is a named insured; that St. Paul has a duty to pursue subrogation or contribution from any co-primary insurer who wrongfully refuses to indemnify Swinerton; and that until it does so, it cannot claim that its payments have exhausted its policy limits.
St. Paul correctly points out that "excess only" clauses and "other insurance" clauses in a primary policy do not operate to transform the policy into true excess insurance. Because problems often arise in the face of conflicting "other insurance" clauses, the modern trend is to require equitable contributions on a pro rata basis from all co-primary insurers regardless of the type of "other insurance" clause in their policies. See, e.g., Dart Indus.'s, Inc. v. Commercial Union Ins. Co., 28 Cal.4th 1059, 1080 (2002). However, more important for the purpose of AIU's claim, that apportionment has no bearing on the insurer's obligation to its insured. Id. "The insurers' contractual obligation to the policyholder is to cover the full extent of the policyholder's liability (up to the policy limits)." Id. (citations omitted). Thus, St. Paul's duty to Swinerton, which is the only duty that matters here, was to defend and indemnify up to the policy limits.
AIU cites Fireman's Fund v. Md. Cas. Co., 65 Cal.App. 1279 (Ct.App. 1998) for its proposition that St. Paul has a duty to pursue subrogation or contribution from any co-primary insurer who wrongfully refuses to indemnify Swinerton. (AIU Mot. for Summ. J. at 19). The Court finds that the case does not stand for such a proposition and, consistent with the above discussion, demonstrates why AIU has no standing to bring such a claim. In Fireman's Fund, two primary insurers had shared liability under certain overlapping and consecutive liability policies. Id. at 1287. The insured construction corporation tendered defense of a lawsuit alleging construction defects to both insurers. Id. One of the insurers, Maryland, refused tender. Id. Fireman's Fund accepted under a reservation of rights, and ultimately settled the action. Id. The insured sued Maryland for breach of contract and bad faith, and later settled its lawsuit and released Maryland Id. at 1288. Fireman's Fund brought a separate lawsuit seeking contribution from Maryland Maryland opposed Fireman's Fund's motion for summary judgment on the basis that any equitable subrogation rights had been extinguished by the insured's full release of all claims against Maryland Id. The court concluded that when two or more insurers independently provide coverage for the same risk for which they are both liable for any loss, the carrier who pays the loss or defends a lawsuit is entitled to seek contribution from the other insurer(s) for their share of the loss. Id. at 1289. There is no language in the opinion that construes such entitlement as a requirement that an insurer seek such contribution. More important, for the purpose of this motion, the court explained that the right of equitable contribution belongs to each insurer individually. Id. at 1294. It exists independently of the rights of the insured and is not based on any rights of the insured. Id. at 1294-95. (The court actually goes further, in what is arguably dicta, and notes that once an insured recovers the full amount of its loss from one of the insurers, the insured has no further rights against the other insurers who did not contribute. Id. at 1295.) Thus, as St. Paul's insured, Swinerton has no standing to require St. Paul to pursue contribution. Because AIU is only entitled to sue as Swinerton's equitable subrogee, AIU also has no standing to require that St. Paul pursue contribution.
Thus, the fact that Fireman's Fund's equitable subrogation rights may have been extinguished did not affect its right to seek contribution from Maryland Id. at 1301-02.
For this reason, the Court does not find it necessary to address factual issues about whether and to what extent St. Paul pursued such subrogation and contribution.
C. AIU's Remaining Claims for Breach of Contract, Bad Faith, and Fraud
The Court agrees with St. Paul that AIU has failed to carry its burden to set forth specific facts showing that any contractual duty to Swinerton was breached for which AIU may pursue a claim via equitable subrogation. St. Paul has continued to defend and indemnify Swinerton in excess of its policy limits, as it was required to do, while it seeks a determination from this Court as to exhaustion of its policy limits. Therefore, St. Paul is entitled to summary judgment on AIU's claims for breach of contract and bad faith.
The Court also agrees with St. Paul that AIU has failed to carry its burden to show that Swinerton was damaged by any purported intentional or negligent misrepresentation as to exhaustion of the policy limits, which is an essential element of any fraud claim. St. Paul corrected any errors it had made with regard to allocating indemnity payments across policy periods and deductible payments before AIU made any obligatory payments on behalf of Swinerton. Moreover, since the Court has found that, as a matter of law, St. Paul did not misallocate payments and was not required to pursue contribution, AIU has not been damaged for the payments it made with respect to the Dreamworks action, since St. Paul more than exhausted its policy limits with its payment toward that settlement. Therefore, St. Paul is entitled to summary judgment on AIU's claims for fraud.
D. Reimbursement
St. Paul requests that the Court order reimbursement from AIU in the amount of $1,149,822 plus interest through the date of judgment. Of that amount, St. Paul has incurred $864,150 in post-exhaustion indemnity payments and the rest in expenses. AIU has raised issues with respect to $14,398 that has since been recovered from third parties, and $76,434.26 that St. Paul allegedly applied to reimburse its own attorney fees rather than to policy limits. (Pl.'s Opp. to Summ. J. Mot. #2 at 6).
The Court finds that there is no substantial factual dispute as to the $864,150 in post-exhaustion indemnity payments minus the two amounts raised by AIU. Thus, the Court GRANTS St. Paul partial summary judgment as to $773,317.74.
IV. DISPOSITION
For the above reasons, the Court GRANTS St. Paul's Motions for Summary Judgment for declaratory relief that the Primary Policies are exhausted. The Court GRANTS St. Paul's Motion for Summary Judgment on Plaintiff's Claims. The Court GRANTS IN PART St. Paul's request for reimbursement. The Court DENIES AIU's Motion for Summary Judgment and Counter-Motion for Partial Summary Judgment.
IT IS SO ORDERED.