These bonds provided coverage for loss discovered during the insured period. Section 3.Independent School Dist. No. 1 v. Jackson, 608 P.2d 1153, 1155 (Okla. 1980). Section 3 provides the bond covers any "loss discovered by the Insured during the Bond Period. Discovery occurs when the Insured first becomes aware of facts which would cause a reasonable person to assume that a loss of a type covered by this bond has been or will be incurred, regardless of when the act or acts causing or contributing to such loss occurred, even though the exact amount or details of loss may not then be known."

ECF 39 at 15; ECF 64 at 6-7. Fox, 424 P.2d at 20; Indep. Sch. Dist. No. 1 of Tulsa Cnty. v. Jackson, 608 P.2d 1153, 1154 (Okla. 1980); Baldridge, 63 P.3d at 569. Thames, 2015 WL at * 1.

However, it is also undisputed that Kirkpatrick violated his policy with GuideOne by never informing it of the lawsuit, and that GuideOne had no notice of the lawsuit until after the lawsuit had been finally litigated. ¶ 12 GuideOne based its argument on Independent School District No. 1 of Tulsa County v. Jackson, 1980 OK 38, 608 P.2d 1153. There, the plaintiff sued an insured for damages resulting from an automobile accident.

Actual prejudice. We also predict the Oklahoma Supreme Court would hold that NHIC may not rely on the Porter defense if it was not actually prejudiced by the signing of the release.Cf. Indep. Sch. Dist. No. 1 v. Jackson, 608 P.2d 1153, 1155 (Okla. 1980) (holding that when notice is condition in policy, "unless the insurer is prejudiced from the lack of notice, failure to give the insurer notice . . . will not relieve the insurer from liability" under the policy). As mentioned above, Porter stated that prejudice to the insurer was the ultimate inquiry when applying the waiver doctrine in cases in which a release has been knowingly given. 643 P.2d at 303.

However, prejudice must also be demonstrated due to the late notice of a claim or lawsuit that could potentially require an insurer to defend or indemnify. See, Independent School District No. 1 of Tulsa County v. Jackson, 1980 OK 38, 608 P.2d 1153. Safeco does not allege prejudice due to the alleged late notice.

Policy at CCC 000015, Doc. No. 17-1 (emphasis omitted). Thus, the only way that coverage can exist for the Shad's Insurance Claim is if it is a related claim to the Joneses Insurance Claim.Cf. Indep. Sch. Dist. No. 1 v. Jackson, 608 P.2d 1153, 1155-56 (Okla. 1980) (indicating, in a case not involving allegedly related claims, that the lack of notice to the insurer of a lawsuit precluded the insurer's liability after a default judgment was entered against its insured). Shad's Bar believes that Continental Casualty also determined that coverage existed for other malpractice claims asserted against Mr. Key during the policy period, including one by Deaconess Health System, LLC. No information has been provided to the Court to indicate that these other malpractice claims against Mr. Key would be treated different than the Joneses Malpractice Suit and the corresponding Joneses Insurance Claim, and the Court does not consider them further herein.

Under Oklahoma law, failure to comply with such a notice provision precludes coverage if the insurer is prejudiced, even if the insurer was previously notified of the claim pre-suit. Indep. Sch. Dist. No. 1 of Tulsa County v. Jackson, 608 P.2d 1153, 1155-56 (Okla. 1980) (although insurer was notified of claim and denied coverage, coverage was precluded by the insured's failure to notify insurer of post-denial lawsuit and insurer's loss of opportunity to defend). Further, the "shall" language employed in this notice-of-suit provision indicates a mandatory action and is consistent with the "condition precedent" language set forth in the first paragraph of the policy's Claim Reporting Provision and the holding in Jackson.

Brands, Inc. v. Hartford Accident Indent. Co., 347 Md. 32, 698 A.2d 1078, 1082-83 (1997); Goodman v. Am. Cos. Co., 419 Mass. 138, 643 N.E.2d 432, 434 (1994); Koski v. Allstate Ins. Co., 456 Mich. 439, 572 N.W.2d 636, 639 (1998); Lawler v. Gov't Employees Ins. Co., 569 So.2d 1151, 1159-60 (Miss. 1990); Johnston v. Sweany, 68 S.W.3d 398, 402 (Mo. 2002); State Farm Mut. Auto. Ins. Co. v. Murnion, 439 F.2d 945, 947 (9th Cir. 1971) (applying Montana law); Mefferd v. Sieler and Co., Inc., 267 Neb. 532, 676 N.W.2d 22, 26 (2004); Wilson v. Progressive Northern Ins. Co., 151 N.H. 782, 868 A.2d 268, 271 (2005); Pfizer, Inc. v. Employers Ins., 154 N.J. 187, 712 A.2d 634, 644 (1998); Schroth v. N.M. Self-Insurer's Fund, 113 N.M. 708, 832 P.2d 399, 402 (1992); Great Am. Ins. Co. v. C.G. Tate Constr. Co., 315 N.C. 714, 340 S.E.2d 743, 746 (1986); Finstad v. Steiger Tractor, Inc., 301 N.W.2d 392, 398 (N.D. 1981); Ferrando v. Auto-Owners Mut. Ins. Co., 98 Ohio St.3d 186, 781 N.E.2d 927, 946 (2002); Indep. Sch. Dist. No. 1 v. Jackson, 608 P.2d 1153, 1155 (Okla. 1980); Carl v. Oregon Auto. Ins. Co., 141 Or.App. 515, 918 P.2d 861, 863 (1996); Brakeman v. Potomac Ins. Co., 472 Pa. 66, 371 A.2d 193, 197 (1977); Avco Corp. v. Aetna Cos. Sur. Co., 679 A.2d 323, 328-29 (R.I. 1996); Vt. Mut. Ins. Co. v. Singleton, 316 S.C. 5, 446 S.E.2d 417, 421 (1994); Am. Justice Ins. Reciprocal v. Hutchison, 15 S.W.3d 811, 813 (Tenn. 2000); FDIC v. Oldenburg, 34 F.3d 1529, 1546-47 (10th Cir.1994) (applying Utah law); Coop. Fire Ins. Ass'n of Vt. v. White Caps, Inc., 166 Vt. 355, 694 A.2d 34, 35 (1997); Benham v. Wright, 94 Wash. App. 875, 973 P.2d 1088, 1092 (1999); Colonial Ins. Co. v. Barrett, 208 W.Va. 706, 542 S.E.2d 869, 874 (2000); Neff v. Pierzina, 245 Wis.2d 285, 629 N.W.2d 177, 185 (2001). The dissent today attempts to distinguish Hernandez by characterizing the settlement-without-consent clause at issue in that case as a covenant rather than a condition, even though in Hernandez we made no distinction between the two.

A clear plurality of states hold that once it is demonstrated that the insured breached the notice provision, the burden of proof is allocated to the insurer to prove that it has been prejudiced by the breach. See, e.g., National Union Fire Ins. Co. v. F.D.I.C., 264 Kan. 733, 957 P.2d 357, 368 (Kan. 1998); Weaver v. State Farm Mut. Auto. Ins., 936 S.W.2d 818, 821 (Mo. 1997); White Caps, 694 A.2d at 38 (insurer must show "substantial prejudice"); Vermont Mut. Ins. Co. v. Singleton, 316 S.C. 5, 446 S.E.2d 417, 421-22 (S.C. 1994) (insurer must show "substantial prejudice"); Marquis v. Farm Family Mut. Ins. Co., 628 A.2d 644, 649 (Me. 1993); Jones, 821 S.W.2d at 803; Weaver Bros., 684 P.2d at 126; C.G. Tate, 279 S.E.2d at 775; Independent School Dist. No. 1 v. Jackson, 608 P.2d 1153, 1155 (Okl. 1980); Brakeman, 371 A.2d at 198; Salzberg, 535 P.2d at 819; Rampy v. State Farm Mut. Auto. Ins. Co., 278 So.2d 428, 434 (Miss. 1973) (insurer must showl "substantial prejudice"); Cooper, 237 A.2d at 874; Campbell v. Allstate Ins. Co., 60 Cal.2d 303, 32 Cal.Rptr. 827, 384 P.2d 155, 157 (Cal. 1963); 32 A.L.R. 4th § 5.

1988); State Farm Mut. Auto. Ins. Co. v. Johnson, 320 A.2d 345, 347 (Del. 1974); Jones v. Bituminous Casualty Corp., 821 S.W.2d 798, 802-03 (Ky. 1991); Barnes v. Lumbermen's Mut. Casualty Co., 308 So.2d 326, 328 (La.Ct.App. 1975); Ouellette v. Maine Bonding Casualty Co., 495 A.2d 1232, 1234-35 (Me. 1985); General Accident Ins. Co. v. Scott, 669 A.2d 773, 778 (Md.Ct.Spec.App. 1996); Johnson Controls, Inc. v. Bowes, 409 N.E.2d 185, 188 (Mass. 1980); Wendel v. Swanberg, 185 N.W.2d 348, 353 (Mich. 1971); Reliance Ins. Co. v. St. Paul Ins. Cos., 239 N.W.2d 922, 925 (Minn. 1976); MFA Mutual Ins. Co. v. Sailors, 141 N.W.2d 846, 849 (Neb. 1966); Cooper v. Government Employees Ins. Co., 237 A.2d 870, 873-74 (N.J. 1968); Foundation Reserve Ins. Co. v. Esquibel, 607 P.2d 1150, 1152 (N.M. 1980); Great American Ins. Co. v. C.G. Tate Const., 279 S.E.2d 769, 775 (N.C. 1981); Finstad v. Steiger Tractor, Inc., 301 N.W.2d 392, 398 (N.D. 1981); Independent Sch. Dist. No. 1 v. Jackson, 608 P.2d 1153, 1155 (Okla. 1980); Lusch v. Aetna Casualty Surety Co., 538 P.2d 902, 904 (Or. 1975); Brakeman v. Potomac Ins. Co., 371 A.2d 193, 198 (Pa. 1977); Pennsylvania Gen. Ins. Co. v. Becton, 475 A.2d 1032, 1035 (R.I. 1984); Factory Mut. Liab. Ins. Co. v. Kennedy, 182 S.E.2d 727, 729-30 (S.C. 1971); Pulse v. Northwest Farm Bureau Ins. Co., 566 P.2d 577, 579 (Wash.Ct.App. 1977); State Auto. Mut. Ins. Co. v. Youler, 396 S.E.2d 737, 744 (W.Va. 1990); Dietz v. Hardware Dealers Mut. Fire Ins. Co., 276 N.W.2d 808, 812 (Wis. 1979).