United States District Court, C.D. Illinois, Springfield Division
December 20, 2005.
COMMONWEALTH INSURANCE COMPANY, Plaintiff,
TITAN TIRE CORPORATION, Defendant.
The opinion of the court was delivered by: BYRON CUDMORE, Magistrate Judge
This matter comes before the Court on cross-motions for summary
judgment filed by Plaintiff Commonwealth Insurance Company
(Commonwealth) and Defendant/Cross-claimant Titan Tire
Corporation (Titan). See Commonwealth Insurance Company's
Motion for Summary Judgment (d/e 33) (Commonwealth's Summary
Judgment Motion); Motion for Summary Judgment Pursuant to
Fed.R.Civ.P. 56 (a) & (b) (d/e 38) (Titan's Summary Judgment
Motion). Commonwealth is a Canadian company with its principal
place of business in Vancouver, British Columbia, and Titan is an
Illinois corporation with its principal place of business in Des
Moines, Iowa. The amount in controversy exceeds $75,000.00; thus,
jurisdiction is proper under 28 U.S.C. § 1332. The parties have consented to a determination of this case by the
United States Magistrate Judge, pursuant to 28 U.S.C. § 636.
Order, November 27, 2002 (d/e 17). For the reasons set forth
below, Commonwealth's Summary Judgment Motion is allowed, in
part, and denied, in part. Titan's Summary Judgment Motion is
Commonwealth provided general liability insurance to Titan
under a comprehensive policy, number CRX57220, and an umbrella
policy, number CRX57221, both of which were effective for the
period from June 1, 1998 through June 1, 1999 (policy period).
Under the policies, Titan had a self-insured retention (SIR) of
$100,000.00. Policy CRX57220 provided a limit on Commonwealth's
liability as follows:
The limit of the insurer's liability under this
Policy shall be the amount stated in the Declarations
as "each Occurrence" for damages for any one
Occurrence or series of Occurrences resulting form
one cause, and subject to such limit the amount
stated in the Declarations as "aggregate" for any
number of Occurrences in any one policy period, if
caused by the Products Hazard or Completed Operations
Hazard as defined herein.
Complaint (d/e 1), Ex. A, Insuring Agreements, p. 12. The
Declarations of policy CRX57220 stated the limits of liability as
"$5,000,000.00 Inclusive Each Occurrence; $5,000,000.00 In the
Aggregate with respect to Products and Completed Operations Liability." Id., Ex. A,
Declarations, p. 1. The Umbrella Policy, policy CRX57221,
contained limits on liability as follows: "$25,000,000.00
Inclusive Each Occurrence; $25,000,000.00 In the Aggregate with
respect to Products and Completed Operations Liability." Id.,
Ex. B, Declarations, p. 2.
During the policy period, an accident occurred in which eight
people were killed. This accident gave rise to several lawsuits
against Titan in state court in Duval County, Texas, which
alleged that the deaths were the result of a defect in a tire
produced by Titan (collectively, "the Ramirez case").
Commonwealth paid its applicable policy limits, $5 million under
policy CRX57220 and $25 million under policy CRX57221, to settle
the Ramirez case. It was Commonwealth's decision, not Titan's, to
pay the policy limits in the Ramirez case. During settlement
negotiations in the Ramirez matter, Titan's General Counsel Cheri
Holley expressed concern about exhausting Titan's insurance
coverage for the policy period. Indeed, Commonwealth's outside
counsel in the Ramirez case, James Brennan, addressed the issue in a September 10, 1999, facsimile that was
carbon copied to Holley. The fax stated:
Titan's concern, as Commonwealth understands it, is
that Titan must consider the consequences of
accepting the settlement demand in the Ramirez law
suit, which will leave Titan with no insurance
coverage for the defence [sic] and/or settlement of
other suits which might be filed with respect to
unrelated Products and Completed Operations claims
within the same policy term. Further, Titan is
exposed to fresh suits arising out of its Products
and Completed Operations once the plaintiff bar
learns that Titan has settled this claim. Titan,
therefore, as we understand it, has a substantial
uninsured risk with respect to the policy term June
1, 1998 to June 1, 1999 even if the Ramirez claims
can be settled in accordance with the terms of the
settlement demand. . . . [T]he resolution of the
Ramirez claims for the amount of the demand will
leave Titan without coverage for an entire year of
Products and Completed Operations claim exposures.
Declaration of Lawrence D. Mason in Support of Commonwealth's
Motion for Summary Judgment (d/e 36) (Mason Declaration), Ex.
43. Nevertheless, the Ramirez matter was settled, and
Commonwealth paid the $30 million to the Ramirez plaintiffs in
February 2000. The Ramirez settlement fell under Titan's Products
and Completed Operations insurance coverage. The parties agree on
summary judgment that the Ramirez settlement exhausted the limits
of the policies only with respect to Products and Completed
Operations Liability and not with respect to other types of
claims, including personal injury claims. In February 1999, Mark and Lisa New sued Titan in Iowa state
court for personal injuries resulting from an incident that
occurred on January 8, 1999. The News alleged that Mark New was
injured when he fell into an uncovered service pit while
attempting to make a delivery to a Titan production facility in
Des Moines, Iowa. Policy No. CRX57220 provided personal injury
liability coverage as follows:
The insurer agrees to pay on behalf of the insured,
all sums which the insured shall become legally
obligated to pay as damages.
1. Personal Injury Liability
because of Personal Injury sustained by any person or
persons during the Policy Period.
Complaint, Ex. A, Insuring Agreements, p. 1.
While Titan now agrees that coverage remains for the New claim
under the policies after the Ramirez settlement, Titan asserts
that Titan did not know there was coverage under the policy for
Mark New's injuries until after the New case had been tried.
Nevertheless, Titan informed Commonwealth of the New lawsuit
during the Spring of 1999, and Commonwealth assigned the matter
to Claims Examiner Coral Davis. On May 28, 1999, Davis sent a fax
to Jennifer Cramm, a paralegal with Titan, regarding the New
lawsuit. Mason Declaration, Ex. 4. Davis inquired whether Titan had been able to establish the severity of Mark
New's injuries and whether "[i]f a settlement is made or if an
award is given, if this matter proceeds to trial, will it exceed
your $100,000.00 SIR." Id. Cramm responded by letter dated June
10,1999, stating that Titan had not received any information
regarding the amount of money involved in the New lawsuit. Id.,
Ex. 5. Cramm's letter stated "Titan Tire Corporation does not
believe at this time that this matter will go to an amount in
which your insurance company will need to be involved but, we
just wanted to make you aware of the matter." Id. After
receiving Cramm's response, Davis periodically contacted Cramm by
letter, seeking information as to the status of the New case.
Cramm consistently responded to Davis's letters with letters of
her own. All of Cramm's letters advised Davis to contact her if
additional information was needed; Davis, however, never
requested additional information or advised Cramm that her
letters were not responsive to Commonwealth's requests.*fn1 Titan hired outside counsel, Gene La Suer, to defend the New
lawsuit. The New lawsuit was set for trial on January 24, 2000.
By letter dated January 3, 2000, La Suer informed Titan that the
trial date was being pushed back to May 8, 2000. Davis sent Cramm
a brief letter dated February 21, 2000, which stated "Have you
been able to determine the extent of the Plaintiff's injuries and
quantum. Please advise." Mason Declaration, Ex. 15. Cramm
responded by letter dated March 10, 2000, stating:
Titan Tire Corporation's counsel has been in
contacted [sic] with Mr. New's counsel regarding a
settlement demand in this matter. To date Titan Tire
Corporation's counsel has not received a demand from
plaintiff's counsel in this matter. Once I have
received that demand or any other information on the
progress of this matter I will forward it onto [sic]
Id., Ex. 17.
La Suer testified in his deposition that he spoke to Brennan in
the spring of 2000, regarding a South Dakota case that La Suer
was handling for Titan. According to La Suer, one of his
questions for Commonwealth's outside counsel was whether the
South Dakota case fell in the same policy period as the Ramirez and New cases. Titan's Summary Judgment
Motion, Ex. D, Deposition of Gene R. La Suer, p. 25. According
to La Suer, La Suer commented that the Ramirez case had exhausted
the limits for the New case, stating "words to the effect, `So
it's not like the New case, where I don't have coverage?'" Id.
According to La Suer, Brennan responded, "`It's different than
the New case, yes.'" Id. at 25-26.
On March 21, 2000, the News's attorney submitted a settlement
proposal to La Suer. Mason Declaration, Ex. 18. The settlement
proposal outlined past medical expenses in the amount of
$24,714.46, and proposed settlement in the amount of $700,000.00,
with Titan paying all court costs. Id. Titan countered with an
offer to settle for $54,000.00, which the News rejected by letter
dated May 3, 2000. Id., Ex. 19. The News proposed settlement in
the amount of $390,000.00. Id. Titan rejected this offer on May
3, 2000, and offered to settle for $100,000.00. Id., Ex. 20.
The News rejected the $100,000.00 offer on May 4, 2000, and
offered to settle for $310,000.00. Id., Ex. 21. Titan rejected
this demand, instead offering to settle for $125,000.00. Id.,
Ex. 22. The News rejected this offer on May 5, 2000, and demanded
$275,000.00 to settle the matter. Id., Ex. 23. Titan did not
accept the News's offer, and the matter proceeded to jury trial
on May 8, 2000.
On May 11, 2000, the jury returned a verdict in favor of the
News against Titan in the amount of $328,071.00. Titan filed a
motion for judgment notwithstanding the verdict or a new trial on
May 22, 2000. On May 23, 2000, La Suer faxed Titan a proposed
settlement offer for the News in the amount of $300,000.00.
Mason Declaration, Ex. 26. La Suer's fax sought Titan's
permission to send the proposal "to get this case settled." Id.
La Suer advised Titan, "I do NOT believe there is an issue that
we can win on appeal because the judge was very good about giving
us the instructions we needed and there was NO evidence that was
submitted that would reverse the judgment." Id. Titan instead
offered $200,000.00 to settle the matter. The News's attorney
rejected this offer on May 24, 2000, stating that he would
recommend that his clients settle for $325,000.00. Id., Ex. 27.
On May 25, 2000, La Suer participated in a settlement conference
with the News's attorney, which resulted in an offer to settle by
the News for $325,000.00.
In a letter dated May 31, 2000, La Suer suggested that Titan
accept the News's $325,000.00 settlement offer. Mason
Declaration, Ex. 29. La Suer noted that, while Titan had appeal
issues, he "seriously doubt[ed]" that Titan could prevail on appeal. Id. Holley rejected La
Suer's advice, instructing him to appeal the matter. On June 13,
2000, the News withdrew their settlement offer. On June 21, 2000,
the trial court denied Titan's post-trial motion. Titan appealed.
By letter dated July 14, 2000, Cramm informed Davis that the
New case had proceeded to trial, resulting in an award of
$328,071.00 in favor of the News. Mason Declaration, Ex. 32.
Cramm forwarded Davis a copy of the verdict form. Id. Cramm's
letter did not ask Commonwealth to pay the judgment. According to
Titan, it was Titan's understanding, after the Ramirez
settlement, that the limits of liability available under the
policies had been exhausted and there was no coverage remaining
for the New case.
On October 20, 2000, Commonwealth's Senior Vice-President of
Claims Dennis Shave wrote to Holley to express his "serious
concerns with respect to the way that claims against Titan are
being handled." Mason Declaration, Ex. 33. Shave requested full
information on every claim where the total of the claim and
defense costs could exceed $100,000.00. Attached to the Shave
letter was a document entitled "Schedule of Titan Claims per
Policy Year." With respect to the policy year June 1, 1998 to June 1, 1999, the schedule noted, "This is the year of the Duval
County claim. The policy limits have been exhausted." However,
the schedule went on to address the two additional Commonwealth
files for that year. With respect to the New case, the schedule
File 181 New (Iowa)
Date of Loss January 8, 1999
Reported to Commonwealth in April 1999. This is a
slip and fall on Titan's property and therefore the
policy limits defence is not available.
Coral Davis called Titan's para-legal, Jennifer
Cramm, and was told it would be within the
self-insured retention of $100,000. Commonwealth sent
several letters asking for details, which were
ignored. Then a jury judgment in excess of $300,000
was handed down in July. Titan says they are
appealing but no further particulars are given.
On October 24, 2000, Commonwealth's outside counsel, Brennan,
sent a letter to Cramm which stated as follows:
Commonwealth is surprised to see that the jury
awarded Mr. and Mrs. New $328,071.00 in damages in
that Titan had asserted that the claim, including
defense costs, would not exceed the $100,000.00
deductible. We understand that Titan attends [sic] to
appeal this decision.
In order to determine the extent to which
Commonwealth may be obliged to cover Titan for this
judgment, it requires a complete copy of your internal file, including
specifically all trial and deposition transcripts,
all reports from the defense attorney, together with
a copy of their file. Commonwealth also requires that
Titan authorize its defense Attorney to speak to us
freely with respect to his conduct of the case from
beginning to end. We require the particulars of all
demands and settlement offers.
Commonwealth reserves all of its rights with respect
to coverage for this claim and waives none. We will
give you our views with respect to coverage once we
obtain the material which is requested herein.
Mason Declaration, Ex. 34. Titan did not respond to either the
October 20 or 24, 2000, letters.
On August 29, 2001, the appellate court affirmed the New
judgment. Titan then petitioned the Iowa Supreme Court for
review. The Iowa Supreme Court denied review in December 2001. By
letter dated December 3, 2001, La Suer forwarded Holley a copy of
the Iowa Supreme Court order, and suggested that Titan pick a
date to pay the total due, which had grown with the addition of
interest to $382,581.35, to the Clerk of the Court to satisfy the
judgment. Titan's Summary Judgment Motion, Ex. A, Deposition
of Cheri Holley (Holley Dep.), Ex. 59, p. 2.
On December 7, 2001, Titan requested that Commonwealth pay the
amount of the New judgment that exceeded the SIR. On December 12,
2001, La Suer sent a letter to Shave, which stated This letter is a follow up to my letter of December
7, 2001. Enclosed please find confidential copies of
all bills for legal services rendered in connection
with this case. As you can see, the legal bills total
$29,321.53 for the trial and subsequent appeals. As a
result, there is $70,678.47 remaining on the
deductible. Titan will prepare a check in the amount
of $70,678.47, and Titan now asks that Commonwealth
the [sic] remaining amount of the judgment or
$313,009.00. We would ask that the check be made
payable to "Clerk of District Court of Polk County."
Titan still wishes to satisfy this judgment on
December 17, 2001.
Holley Dep., Ex. 60. By letter dated December 17, 2001,
Commonwealth denied Titan's request, asserting that Titan
forfeited coverage for the New claim. Id., Ex. 61.
Commonwealth filed the instant declaratory judgment action on
December 26, 2001, asserting that Titan breached its duty of
cooperation under the policies and, thus, forfeited its coverage
for the New action. Titan answered, asserting affirmative
defenses of estoppel, waiver, unjust enrichment, unclean hands,
and Commonwealth's failure to fulfil its duties and obligations
under the contract. Titan also filed a counterclaim, alleging
that Commonwealth breached the insurance agreement by denying
Titan's request to pay the New judgment and the defense costs
incurred by Titan in connection with the New lawsuit. The parties each seek summary
Summary judgment is appropriate when "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 a judgment as a matter of law." Fed.R.Civ.P.
56(c). The Court must consider the evidence in the light most
favorable to the party opposing summary judgment and draw all
reasonable inferences in its favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). The parties agree that Illinois
law governs this case. See Cincinnati Ins. Co. v. Dawes
Rigging & Crane Rental, 321 F.Supp.2d 975 (C.D. Ill. 2004).
Commonwealth seeks summary judgment in its favor, arguing that
Titan breached its duty of cooperation, thereby forfeiting its
coverage for the New action. Titan opposes Commonwealth's motion
and moves for summary judgment on its counterclaim, arguing that
Commonwealth is estopped from asserting any policy defenses as a
matter of law and, alternatively, that Commonwealth cannot
demonstrate that Titan breached the policy's cooperation clause. As set forth below,
Commonwealth's Summary Judgment Motion is allowed, in part, and
denied, in part. Titan's Summary Judgment Motion is denied.
The applicable portion of Policy CRX57220 provides:
3. NOTICE OF CLAIM OR SUIT
Upon the happening of an accident or Occurrence with
may give rise to a claim hereunder, the Insured shall
give notice thereof as soon as practicable after
notice has been received by an officer of the
Insured, to the Insurer.
Such notice shall contain all available information
pertaining to such accident or occurrence which is
obtainable at the time.
If claim is made or suit is brought against the
Insured, the Insured shall immediately forward to the
Insurer every demand, notice, summons or other
process received by the Insured or by the Insured's
4. ASSISTANCE AND COOPERATION
The Insured shall cooperate with the Insurer and,
upon the Insurer's request, assist in making
settlements, in the conduct of suits and in enforcing
any right of contribution or indemnity against any
person or organization who may be liable to the
Insured because of injury or damage with respect to
which insurance is afforded under this Policy; and
the Insured shall attend hearings and trials and
assist in securing and giving evidence and obtaining
the attendance of witnesses.
Complaint for Declaratory Relief, Ex. A, Insuring Agreements,
The Court turns first to Titan's estoppel argument. Titan
contends that Commonwealth is estopped from raising any defense
under the policy based on its failure to timely reserve its
rights or file a declaratory judgment action. Under Illinois law, an insurer that breaches its duty to
defend is estopped from raising policy defenses to coverage.
Employers Ins. of Wausau v. Ehlco Liquidating Trust,
708 N.E.2d 1122, 1133 (Ill. 1999). In general, an insurer that takes the
position that a complaint is not covered under a policy that
includes a duty to defend may not simply refuse to defend the
insured, but rather must either (1) defend the suit under a
reservation of rights or (2) seek a declaratory judgment that
there is no coverage. Id. at 1134-35. If the insurer fails to
take either of these steps and is later found to have wrongfully
denied coverage, the insurer is estopped from raising policy
defenses to coverage. Id. at 1135. Significantly, the estoppel
doctrine applies only when an insurer has breached its duty to
defend, and a court must thus analyze whether the insurer had the
duty to defend and, if so, whether the duty was breached. Id.
Commonwealth asserts that "[i]n order for the harsh estoppel
penalty to be applied to an insurer as a consequence of its
improper failure to defend its insured, the insured must first
seek the insurer's assistance. . . ." Commonwealth Insurance
Company's Opposition to Titan Tire Corporation's Motion for
Summary Judgment (d/e 47), p. 21. Illinois, however, has expressly rejected a tender requirement in estoppel
cases. Cincinnati Companies v. West American Ins. Co.,
701 N.E.2d 499 (Ill. 1998). Instead, the Illinois Supreme Court has
held that "where the insured has not knowingly decided against an
insurer's involvement, the insurer's duty to defend is triggered
by actual notice of the underlying suit, regardless of the level
of the insured's sophistication." Id. at 505. The Illinois
Supreme Court noted that in order to have actual notice, "the
insurer must know both that a cause of action has been filed and
that the complaint falls within or potentially within the scope
of the coverage of one of its policies." Id. The issue of
whether an insurer had actual notice of a suit is a factual one.
Ehlco, 708 N.E.2d at 1131. Moreover, even if a duty to defend
arises, an insured is relieved of its duty to defend "[i]f the
insured indicates that it does not want the insurer's assistance,
or is unresponsive or uncooperative." Cincinnati Companies,
701 N.E.2d at 504; see also Ehlco, 708 N.E.2d at 1135
("Application of the estoppel doctrine is not appropriate if the
insurer had no duty to defend, or if the insurer's duty to defend
was not properly triggered. These circumstances include where the
insurer was given no opportunity to defend. . . ."). In the present case, numerous factual issues remain with
respect to Commonwealth's duty to defend. Viewing the evidence in
the light most favorable to Commonwealth, genuine issues of fact
exist as to (1) whether Titan knowingly decided against
Commonwealth's involvement, (2) at what point Commonwealth knew
that the New complaint fell within or potentially within the
scope of the policies, and (3) whether Titan's actions relieved
Commonwealth of any duty to defend. Thus, Titan is not entitled
to summary judgment under an estoppel theory.
The Court, therefore, turns to an analysis of Titan's
performance under the policies' cooperation requirements.
Commonwealth bears the burden of establishing a breach of Titan's
cooperation obligations. See M.F.A. Mut. Ins. Co. v. Cheek,
363 N.E.2d 809, 811 (Ill. 1977). Commonwealth contends that (1)
Titan breached its duty to cooperate with Commonwealth, (2)
Titan's refusal to cooperate substantially prejudiced
Commonwealth, (3) Commonwealth exercised a reasonable degree of
diligence to obtain Titan's cooperation, (4) Titan's refusal to
cooperate was willful, and (5) Titan's refusal to cooperate
extinguished Commonwealth's duty to indemnify and defend Titan in
the New case. Titan asserts that Commonwealth cannot meet its burden of proof on the issues of
breach, prejudice, diligence, or willfulness.
Turning to the question of breach, the Court finds that no
genuine issue of material fact exists on this issue. The
undisputed facts show that Titan did not forward to Commonwealth
"every demand, notice, summons or other process received" as
required under the policy. Titan participated in extensive
settlement negotiations both prior to and following the New
trial, and Titan did not forward any of the demands to
Commonwealth. Therefore, Titan breached its obligations under the
plain language of the policy. Commonwealth is entitled to summary
judgment on this element. However, as set forth below, genuine
issues of fact exist as to prejudice, diligence, and willfulness.
With respect to the question of prejudice, to succeed in its
declaratory judgment action, Commonwealth must "demonstrate that
it was actually hampered in its defense by the violation of the
cooperation clause." M.F.A. Mut. Ins. Co., 363 N.E.2d at 813.
Both sides assert that they are entitled to summary judgment on
this element. However, viewing the evidence in the light most
favorable to Commonwealth, a material issue of fact exists on
this issue, given the settlement offers by the News that were below the ultimate judgment and the fact that Commonwealth was
not informed of the trial until after a verdict had been
rendered. Titan, therefore, is not entitled to summary judgment
as to prejudice.
Commonwealth's request for summary judgment on the issue of
prejudice is denied as well. Commonwealth bears the burden of
proving prejudice; prejudice is not to be presumed from a breach
of cooperation. See id. Viewing the evidence in the light most
favorable to Titan, Commonwealth fails to identity undisputed
facts sufficient to meet this burden. The mere fact that Titan
refused settlement offers that were below the ultimate judgment
is not dispositive on the issue of prejudice. Commonwealth
provides no evidence that it would have accepted these settlement
offers. Summary judgment on the issue of prejudice is not
The question of whether an insurer exercised a reasonable
degree of diligence in seeking the insured's cooperation is a
factual one. Mazzuca v. Eatmon, 360 N.E.2d 454, 456 (Ill.App.
1st Dist. 1977). In the present case, genuine issues of fact
preclude summary judgment on this element. As set forth above,
Commonwealth made some attempts to become involved in the New
case. The question of the sufficiency of these efforts, in light
of the communications to Commonwealth from Titan regarding the New
case, is not an appropriate one for summary judgment.
The question of whether an insured's failure to cooperate was
willful is also factual. Mazzuca, 360 N.E.2d at 456. In the
present case, Titan asserts that it was relieved of its
obligation to cooperate because (1) Commonwealth allowed Titan to
believe there was no coverage for the New claim; (2) Commonwealth
never advised Titan of any failure to provide necessary
information; and (3) Titan acted in accordance with the parties'
prior course of dealing. Each of these arguments go to the
willfulness of Titan's failure to perform its cooperation
obligations. In Illinois, an insured is generally bound to know
his policy's contents. Estate of Blakely v. Federal Kemper Life
Assur. Co., 640 N.E.2d 961, 968 (Ill.App. 2d Dist. 1994). This
general rule does not apply, however, where the insured has been
misled by some act of the insurer. Id. A factual question,
sufficient to defeat summary judgment, exists as to whether Titan
was misled by Commonwealth into believing that there was no
coverage for the New case, given the conversation between La Suer
and Brennan. Similarly, questions of fact exists as to whether
Titan was led to believe that its submissions were sufficient and
whether Titan acted in accordance with the parties' prior course of dealings. Conversely, the evidence,
when viewed in the light most favorable to Commonwealth, could
support a finding that Titan indeed acted willfully. Despite the
early correspondence from Davis inquiring as to whether the New
case would exceed the SIR, Titan never forwarded Commonwealth any
information regarding the amount of money involved in the New
case or any of the News's settlement demands. Summary judgment is
inappropriate on this element.
Therefore, as set forth above, Commonwealth Insurance Company's
Motion for Summary Judgment (d/e 33) is ALLOWED, in part, and
DENIED, in part. Commonwealth is granted partial summary judgment
on the issue of breach. Commonwealth's Motion is denied in all
other respects. Titan's Motion for Summary Judgment Pursuant to
Fed.R.Civ.P. 56 (a) & (b) (d/e 38) is DENIED.
A telephone conference is set January 23, 2006 at 2:30 p.m. to
discuss the scheduling of a final pretrial conference and bench
trial. The parties are also directed to discuss the possibility
of returning to private mediation in light of the Court's order
concerning summary judgment.
IT IS THEREFORE SO ORDERED.
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