The Band's Visit National Tour LLC v. Hartford Fire Insurance Company. ( 2023 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
THE BAND’S VISIT NATIONAL )
TOUR LLC; BANDSTAND TOUR )
LLC; BMGNET TOURING LLC; )
BRONX TOURING LLC; CATS ON )
TOUR LLC; CHOCOLATE )
TOURING LLC; ESCAPE ON )
TOUR LLC; HOSANNA TOUR LLC; )
LMS TOURING LLC; MY FAIR )
LADY ON TOUR; OOTI TOURING )
LLC; SAI TOURING LLC; )
SBSP TOURING LLC; )
TCP TOURING LLC; and )
WAITRESS TOURING LLC, )
)
Plaintiffs, )
)
v. ) C.A. No. N22C-03-048
) PRW CCLD
)
HARTFORD FIRE INSURANCE )
COMPANY, )
)
Defendant. )
Submitted: October 15, 2023
Decided: November 29, 2023
Issued: December 11, 2023*
OPINION AND ORDER
Upon Defendant Hartford Fire Insurance Company’s Motion for Summary Judgment,
GRANTED.
David J. Baldwin, Esquire, Peter C. McGivney, Esquire, and Zachary J. Schnapp,
Esquire, BERGER HARRIS LLP, Wilmington, Delaware; Peter A. Halprin, Esquire
(argued), and Tae Andrews, Esquire, PASICH LLP, New York, New York; Kirk
Pasich, Esquire, PASICH LLP, Los Angeles, California, Attorneys for Plaintiffs The
Band’s Visit., et al.
Tracy A. Burleigh, Esquire, and Sarah B. Cole, Esquire, MARSHALL DENNEHEY
WARNER COLEMAN & GOGGIN, P.C., Wilmington, Delaware; Sarah D. Gordon,
Esquire (argued), Elizabeth A. Cassady, Esquire, Johanna Dennehy, Esquire, Elise
Haverman, Esquire, and Ansley Seay, Esquire, STEPTOE & JOHNSON LLP,
Washington, D.C., Attorneys for Defendant Hartford Fire Insurance Company.
WALLACE, J.
When the COVID-19 pandemic first struck in March 2020, all types of
businesses abruptly shuttered. When they tried to recoup just some portion of their
mounting financial losses, many of those claims were denied by their insurance
carriers. Since then, some have sued their insurers looking for coverage they believe
is owed. This is one such lawsuit.
The Plaintiffs here are fifteen touring stage productions that were forced to
suspend their performances in March 2020 and remain dormant for a substantial time
thereafter. The Defendant is the insurance company from which those tours
purchased coverage. The tours filed insurance claims for COVID-19-related losses
that were denied, in whole or large part, by their insurer. So, the tours have brought
here a suit with seven separate causes of action contesting those denials; their insurer
now moves for full summary judgment thereon.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. THE PARTIES
Plaintiffs (collectively, “the Tours”) are fifteen touring theater productions.1
Fourteen of them (the “Non-Hosanna tours”) purchased a one-year “all risk”
insurance policy from Defendant Hartford Fire Insurance Company.2 NETworks
* This decision is issued after providing the parties an opportunity to request redaction of certain
confidential information—none were made—and with the Court’s own necessary corrections.
1
Complaint (“Compl.”) ¶¶ 10-24 (D.I. 1).
2
Compl. ¶ 2.
-1-
Presentations LLC (the “NETworks tours” or “NETworks”), a company located in
Maryland, manages nine of those theater productions.3 Troika Entertainment (the
“Troika tours” or “Troika”), a company also located in Maryland, manages four
others.4 Bandstand Tour LLC (“Bandstand”) and Hosanna Tour LLC (“Hosanna”)
are the last two and are managed by Work Light Productions, a company located in
New Jersey.5
Hartford is an insurance company incorporated in Connecticut.6 All fifteen
of the Tours obtained insurance from Hartford for a one-year period.7 The
NETworks tours procured their policies through an insurance broker, Maury
Donnelly & Parr Inc. (“MDP”), and Robert Middleton, MDP’s Director of the Arts
Program.8 Mr. Middleton’s role as Director of the Arts Program at MDP was
primarily to provide proposals from different insurance carriers to potential
policyholders.9 By 2020, MDP had been working with Hartford for close to two
3
Id. ¶ 7; Defendant Hartford’s Opening Brief (“Hartford’s Open. Br.”) at 5, 5 n.1 (D.I. 106);
The Tours’ Answering Brief (“Tours’ Ans. Br.”) at 1, 1 n.1 (D.I. 111).
4
Hartford’s Open. Br. at 5.
5
Compl. ¶¶ 11, 17; Hartford’s Open. Br. at 5 n.3.
6
Compl. ¶ 25.
7
E.g., Hartford’s Open. Br., Ex. 1 (“Standard Policy”); Hartford’s Open. Br., Ex. 15 (“Hosanna
Policy”).
8
Hartford’s Open. Br., Ex. 16 (“Middleton Dep.”) 21, 61 (D.I. 107).
9
Middleton Dep. 21-22.
-2-
decades under The Hartford Agency Agreement (the “Agency Agreement”).10
B. MDP AND THE HARTFORD AGENCY AGREEMENT
On March 1, 2001, Hartford and MDP entered into the Agency Agreement.11
The relevant provisions of that agreement are in the “Authority of Agent” and
“Compensation” sections.12
In the “Authority of Agent” section, Hartford authorizes MDP “on
[Hartford’s] behalf” to “[s]olicit, quote and bind insurance in your territory for those
lines of insurance and classes of business shown on the Declarations page,” to
“[d]eliver such policies as we may issue,” to “[c]ollect, receive and receipt for
premiums on such policies,” and to “[p]rovide all usual and customary services of
an insurance agent on all insurance policies you place with [Hartford].”13
The section also includes a limitations clause:
You have the authority and power to act as our agent only to the
extent expressly granted in this Agreement and no further
authority or power is implied. You are an independent contractor
and not an employee of ours for any purpose . . . . Any authority
granted hereunder to solicit, quote or bind insurance products on
our behalf is non-exclusive, unless we agree otherwise in
writing.14
10
Tours’ Ans. Br., Ex. 1 (“Agency Agreement”) (D.I. 112).
11
Id.
12
Id. §§ II, V.
13
Id. §§ II.1(a)-(d).
14
Id. § II.2.
-3-
C. THE TOURS’ INSURANCE PROCUREMENT
The tale of this insurance dispute begins in spring 2018, when the NETworks
tours began working with MDP and Mr. Middleton to procure insurance for their
2019-2020 travelling productions.15 During the procurement, Mr. Middleton
approached the NETworks tours with a new coverage form for performance
disruption.16 This new coverage form did not include the standard requirement for
“direct physical loss or damage” to property in order for such disruption to be
covered.17 Mr. Middleton also informed Sheila Gladding, the Hartford underwriter
responsible for the NETworks tours, of Networks’ interest in this new form of
coverage.18
That following winter, Mr. Middleton informed the NETworks tours that
Hartford’s plan was to add the “literally brand new” coverage form, once finished,
“automatically on renewals and new shows,” but only “by endorsement” on
“existing” shows.19 A couple months later, Mr. Middleton e-mailed Ms. Gladding:
We are getting ready to embark on the insurance coverage for
15
See Middleton Dep. 87-88; see also Tours’ Ans. Br., Ex. 3 (“Email from NETworks to
Middleton 08/13/18”). All the Tours were insured by Hartford for the 2019-2020 touring season,
but only NETworks tours’ story dates back to 2018.
16
See Tours’ Ans. Br., Ex. 10 (“Email from Middleton to NETworks Undated”).
17
See Tours’ Ans. Br., Ex. 5 (“Emails between Middleton and Gladding May 2018”); Tours’
Ans. Br., Ex. 6 (“Email from Middleton to Gladding 08/15/18”).
18
Email from Middleton to Gladding 08/15/18 (“Networks . . . is very interested in this enhanced
coverage.”).
19
Tours’ Ans. Br., Ex 11 (“Email from Middleton to NETworks 01/14/19”).
-4-
new shows and the renewal of existing ones. I need to know if
Hartford is going to be able to address this coverage in 2019. If
not, we are prepared to work with other carriers in pursuit of this
coverage feature.20
Ms. Gladding informed Mr. Middleton on May 21, 2019, that Hartford was
working on finalizing the new coverage form, but that it would not be ready until
“3rd quarter 2019.”21
With the foregoing information in tow, the NETworks tours purchased
coverage from Hartford for their 2019-2020 touring productions.22 The nine shows
were all bound for a one-year period, with policies commencing between late June
and late October.23 The signed policies did not include the yet-to-be-finalized new
coverage form.24
Next, the NETworks tours, Mr. Middleton, and Hartford embarked on an
extended back-and-forth regarding a finalized version of the new coverage form. On
September 30, 2019, Ms. Gladding informed Mr. Middleton that Hartford would
“have [a] draft form . . . for your review within the next 2 weeks.”25 Mr. Middleton
20
Tours’ Ans. Br., Ex. 12 (“Email from Middleton to Gladding 03/1/19”).
21
Tours’ Ans. Br., Ex. 15 (“Email from Gladding to Middleton 05/21/19”).
22
See, e.g., Standard Policy; see also Hartford’s Open. Br. at 11.
23
E.g., Standard Policy. Although each individual tour purchased a separate policy, all Non-
Hosanna tour policies are identical in all relevant parts. Thus, any reference to the Standard Policy
purchased by the Non-Hosanna tours will cite to the policy at Hartford’s Open. Br., Ex. 1, and be
discussed and interpreted as one single policy.
24
Id.
25
Tours’ Ans. Br., Ex. 19 (“Email from Gladding to Middleton 09/30/19”).
-5-
then told the NETworks tours that the new coverage form was “approved by
Hartford” and that MDP would have the finalized version “within two weeks” along
with “the ability to provide coverage.”26 On October 8, 2019, Ms. Gladding
informed Mr. Middleton that Hartford would “be able to amend an existing account
via endorsement.”27 Mr. Middleton relayed to NETworks that the new coverage
form “will be available 11/1. We will have the actual form by the end of next
week.”28
On December 17, 2019, Ms. Gladding sent the finalized version of the new
coverage form to Mr. Middleton.29 Soon thereafter, Mr. Middleton forwarded the
finalized version to NETworks, along with the message:
I am very excited about this proposal for Chicago Touring LLC,30
as it incorporates our first policy with the enhanced Business
Income coverage. To reiterate, this drops the requirement for
property damage to trigger the coverage, just that you are unable
to put on a performance due to something beyond your control.31
26
Tours’ Ans. Br., Ex. 23 (“Email from Middleton to NETworks 10/01/19”) (“Finally, after two
years, we have the broader business income policy approved by Hartford. This removes the
requirement for Physical damage to be present for a claim to be paid. This would mean that a
covered occurrence would be an event beyond an insured’s control, such as trucks stuck in the
snow, or the Civil Authority cancelling performances . . . . We will have the form within two weeks
and the ability to apply coverage.”).
27
Tours’ Ans. Br., Ex. 24 (“Email from Gladding to Middleton 10/08/19”).
28
Tours’ Ans. Br., Ex. 25 (“Email from Middleton to NETworks 10/8/19”).
29
See Hartford Open. Br., Ex. 28 (“Email from Gladding to Middleton 12/17/19”).
30
The template version of the Theatrical Extension that was sent to Middleton used Chicago
Touring LLC, a non-NETworks tours production, as a placeholder. See Tours’ Ans. Br., Ex. 36
(“Emails between Middleton and NETworks December 2019”); Hartford Open. Br. at 12.
31
Emails between Middleton and NETworks December 2019.
-6-
The NETworks tours responded, “[t]hanks Bob! How do we get that provision
added to our other current tours? Or has it already been added?”32 Mr. Middleton
replied, “[w]e are in the process of doing that. Should take a week.”33
Mr. Middleton, however, had not yet consulted Hartford.34 Mr. Middleton then
informed Ms. Gladding that the NETworks tours wanted to add the new coverage
form to in-force shows.35 Inexplicably, communications between all parties about
this potential change to the NETworks tours’ extant coverage then ceased until
2020.36
D. THE PANDEMIC STRIKES.
In early March 2020, the COVID-19 pandemic was unfolding and the parties’
talks about the additional coverage resumed in earnest.37 On March 2, 2020,
Mr. Middleton told NETworks that he “would be contacting Hartford right away to
get [the new coverage form] in place immediately.”38 Two days later, Mr. Middleton
informed Ms. Gladding that NETworks wanted to “move coverage . . . to the new
32
Id.
33
Hartford’s Open. Br., Ex. 30 (“Email from Middleton to NETworks 12/19/19”).
34
See id.; Tours’ Ans. Br., Ex. 37 (“Email from Middleton to Gladding 12/19/19”).
35
Email from Middleton to Gladding 12/19/19. “In-force” means shows that have already started
touring and are already insured.
36
See Hartford’s Open. Br., Ex. 34 (“Emails between Middleton and Gladding March 2020”);
Hartford’s Open. Br. at 15.
37
Emails between Middleton and Gladding March 2020.
38
Hartford’s Open. Br., Ex. 18 (“NETworks Exec. Dep.”) 127.
-7-
form this quarter.”39 Ms. Gladding responded, “I will facilitate that for you. Please
go ahead and send me any information you have, and I will get started on this.”40
On March 6, MDP emailed Ms. Gladding requesting a quoted price for adding
the new coverage form to each of the NETworks tours’ policies, effective March 15,
2020.41 Soon thereafter, NETworks reached out to Mr. Middleton for clarification
as to whether the requested policy changes would be effective on March 15, 2020.42
Middleton responded, without consulting with or hearing back from Hartford,
“[y]es, by 3/15.”43
On March 12, 2020, Ms. Gladding rejected Mr. Middleton’s requests: “With
the continued uncertainty surrounding the impacts and effects related to the
coronavirus, we have been asked to hold off on broadening coverage by adding the
[new coverage form].”44 On March 20, Ms. Gladding confirmed to MDP that, “[f]or
in-force business, The Hartford does not intend to extend coverage for any potential
Coronavirus exposure” by adding the new coverage form.45
39
Emails between Middleton and Gladding March 2020.
40
Id.
41
Hartford’s Open. Br., Ex. 35 (“Emails from MDP to Gladding 03/06/20”).
42
Hartford’s Open. Br., Ex. 36 (“Emails between Middleton and NETworks March 2020”).
43
Emails between Middleton and NETworks March 2020.
44
Hartford’s Open. Br., Ex. 40 (“Email from Gladding to Middleton 03/12/20”).
45
Hartford’s Open. Br., Ex. 47 (“Email from Gladding to Middleton 03/20/20”).
-8-
E. THE DIFFERENT POLICIES
There are two insurance policy types relevant to this summary judgment
motion: The Non-Hosanna tours’ Commercial Inland Marine Business Insurance
Policy (the “Standard Policy”), and Hosanna’s policy with the new Theatrical
Property Policy Extension (the “Theatrical Extension”) coverage form.46
In March 2020, the Non-Hosanna tours were insured under the Standard
Policy.47 The pertinent sections of the Standard Policy are the “Loss of Use” and
the “Dependent Property” coverage forms, as well as definitions from the
“Entertainment Equipment Choice” coverage form and accompanying Schedule.
The “Loss of Use” coverage form states that Hartford “will pay for the actual
loss of Business Income you sustain during the ‘period of restoration’ due to the
necessary ‘suspension’ of your operations. The ‘suspension’ must be caused by
direct physical loss to ‘Covered Property’ . . . by a Covered Cause of Loss . . .”48
The relevant sections of the “Dependent Property” coverage form are the
“Coverage” and “Civil Authority” sections.49 Per the “Coverage” section, Hartford
“will pay up to the Limit of Insurance described in the SCHEDULE for the actual
loss of Business Income you sustain . . . due to direct physical loss to Dependent
46
Standard Policy; Hosanna Policy.
47
Standard Policy.
48
Id. (Loss of Use Coverage) § A.1.
49
Id. (Dependent Property Coverage) §§ A.1, A.2.
-9-
Property caused by or resulting from a Covered Cause of Loss.”50 The “Civil
Authority” section provides that Hartford “will pay for the actual loss of Business
Income you sustain caused by an action of a civil authority that prohibits access to a
Dependent property, due to a direct physical loss or damage to property in the
immediate area of the Dependent Property, caused by or resulting from a Covered
Cause of Loss.”51
“Dependent Property” is defined in the Standard Policy as “theaters, concert
halls, opera houses and other locations owned and operated by others at which you
perform your shows and productions."52 “Covered Cause of Loss” is defined as
“direct physical ‘loss’ to Covered Property from an external cause that occurs by
chance,” and “loss” is defined as “accidental loss or damage.”53
The Standard Policy also includes a “Changes” provision: “This policy’s
terms can be amended or waived only by endorsement issued by us and made a part
of this policy.”54
Hosanna’s policy differs from the rest of the Tours’, as it includes the
50
Id. § A.1.
51
Id. § A.2.
52
Id. § A.1.c.
53
Id. (Entertainment Equipment Coverage) §§ A.3, F.1.
54
Id. (Common Policy Provisions) § B.
-10-
Theatrical Extension with no “direct physical loss or damage” requirement.55
Hosanna’s Theatrical Extension coverage was agreed upon in February 2020 and
effected in March 2020.56 The Theatrical Extension provides coverage for “the
actual loss of Business Income you sustain due to the necessary, interruption,
postponement or cancellation of a production due to a ‘covered occurrence’.”57 A
“covered occurrence” is defined as “any unexpected circumstances beyond your
control except as listed in the Exclusions.”58 Hosanna’s policy provides a $1.4
million Business Income coverage limit “per occurrence.”59
F. HARTFORD REFUSES THE NON-HOSANNA TOURS’ COVID-19 CLAIMS AND
PAYS HOSANNA UNDER THE THEATRICAL EXTENSION.
All of the Tours suspended their travelling productions in March 2020 due to
the COVID-19 pandemic.60 Each Non-Hosanna tour each submitted a claim to
Hartford for coverage under its Standard Policy.61 Hartford’s claim handlers
solicited information from the Non-Hosanna tours about their losses through a
55
Hosanna Policy.
56
Hartford’s Open. Br., Ex. 32 (“Email from Gladding to Middleton 02/05/20”).
57
Hosanna Policy (Theatrical Extension) § B.1.a.
58
Id. § B.9.a.
59
Id. § Schedule.
60
See NETworks Exec. Dep. 191: see also Hartford’s Open. Br., Ex. 19 (“Troika Exec. Dep.”);
Hartford’s Open. Br., Ex. 20 (“Hosanna Exec. Dep.”); Hartford’s Open. Br., Ex. 53 (“Band’s Visit
Claim”); Hartford’s Open. Br., Ex. 54 (“Escape on Tour Claim”); Hartford’s Reply Brief in
Support of its Motion for Summary Judgment (“Hartford’s Repl. Br.”) at 12 (D.I. 125); Tours’
Ans. Br. at 21.
61
E.g., Band’s Visit Claim.
-11-
questionnaire, held follow-up calls with Mr. Middleton or the Non-Hosanna tours’
employees, and ultimately denied each of the Non-Hosanna tours’ claims.62
Hosanna, like the Non-Hosanna tours, also had to suspend its tour in March
2020 due to the COVID-19 pandemic and the resulting government-imposed
shutdown orders.63 Hosanna submitted a claim for lost business income to Hartford
under its Theatrical Extension coverage.64 In response, Hartford determined that
Hosanna’s losses arose because of cancelled performances due to a “covered
occurrence.”65 Hartford solicited information from Hosanna about its losses through
a questionnaire, held follow-up calls, and paid Hosanna $1.4 million on July 22,
2020, for Lost Business Income and Extra Expense.66 Two months later, Hosanna
submitted a second claim, contending that each cancelled engagement arose from a
separate occurrence.67 Hartford followed the same procedure as before and denied
that second claim in November 2020.68
62
E.g., id.; Escape on Tour Claim; see also Hartford Repl. Br. at 11-12.
63
Hartford’s Open. Br., Ex. 55 (“Hosanna Claim”).
64
Hosanna Policy.
65
Hosanna Claim.
66
Hartford’s Open. Br., Ex. 56 (“Hosanna Claim Payment”).
67
Hartford’s Open. Br., Ex. 51 (“Email from Middleton to Hosanna”); Hartford’s Open. Br., Ex.
57 (“Hosanna Second Claim”).
68
Hartford’s Open. Br., Ex. 52 (“Hosanna Second Claim Denial”).
-12-
G. THE TOURS BRING SUIT SEEKING COVERAGE.
On March 4, 2022, the Tours initiated this action against Hartford. 69 The
Tours have asserted seven causes of action:
Breach of contract for the denial of the Non-Hosanna tours’
claims (Count I);70 Breach of the duty of implied faith and fair
dealing for the denial of the Non-Hosanna tours’ claims (Count
II);71 Declaratory relief confirming the Tours’ contentions in
Counts I and II (Count III);72 Fraud by Hartford regarding the
addition of the Theatrical Extension (Count IV);73 Declaratory
relief regarding the addition of the Theatrical Extension to
NETworks tours’ existing policies (Count V);74 Breach of
contract for the denial of Hosanna’s second claim (Count VI),75
and; Breach of the implied duty of good faith and fair dealing for
the denial of Hosanna’s second claim (Count VII).76
Hartford answered and discovery ensued.77 Hartford now moves for summary
judgment on all the Tours’ causes of action.78
69
See Compl.
70
Id. ¶¶ 151-159.
71
Id. ¶¶ 160-170.
72
Id. ¶¶ 171-178.
73
Id. ¶¶ 179-198.
74
Id. ¶¶ 199-205.
75
Id. ¶¶ 206-209.
76
Id. ¶¶ 210-220.
77
Hartford’s Answer (D.I. 9); see Hartford’s Open. Br. at 22.
78
See generally Hartford’s Open. Br.
-13-
II. PARTIES’ CONTENTIONS
Hartford insists that it is entitled to summary judgment on all seven counts of
the Tours’ complaint.79 As a threshold matter, Hartford contends that Maryland law
should apply to all claims by NETworks and Troika because of their contacts with
Maryland, and that New Jersey law should apply to Bandstand and Hosanna’s claims
due to their New Jersey contacts.80
A. NON-HOSANNA TOURS’ CLAIMS OF BREACH OF CONTRACT AND IMPLIED
COVENANT OF GOOD FAITH AND FAIR DEALING
Hartford first moves for summary judgment on the breach-of-contract claims
found in Counts I and III.81 At bottom, Hartford argues that the Non-Hosanna tours
are not entitled to coverage under the Standard Policy for their losses due to the
COVID-19 pandemic and its effects.82
Hartford relies heavily on the recent decision of the Supreme Court of
Maryland’s in Tapestry, Inc. v. Factory Mutual Ins. Co., contending that under
Maryland law the language “direct physical loss” in an insurance policy means there
must be “tangible, concrete, and material harm” to trigger coverage.83 When
applying New Jersey law, Hartford cites to multiple New Jersey cases that have
79
See id.
80
Id. at 24-33.
81
Id. at 33-39.
82
Id.
83
243 A.3d 1044, 1056 (Md. 2022); Hartford’s Open. Br. at 33-36.
-14-
interpreted “direct physical loss” as requiring “demonstrable damage” to the
physical structure of subject property.84
Hartford further contends that any impact of COVID-19 cannot constitute
“direct physical loss” as it is used in the policies because “direct physical loss”
requires actual physical damage under either Maryland or New Jersey law.85
Hartford also notes that none of the Non-Hosanna tours provided evidence that any
tours were suspended due to the actual presence of the virus, arguing instead that the
suspensions were in response to the pandemic as a whole.86 Even if it were proven
that COVID-19 was present at any of the venues, Hartford maintains that the
presence of virus on surfaces and in the air does not involve the requisite physicality
that Maryland or New Jersey courts have required.87 As such, Hartford contends
that the Non-Hosanna tours’ claims for cancellation coverage under the Standard
Policy—and the correlated claims for declaratory relief—can now be conclusively
rejected.88
The Non-Hosanna tours oppose Hartford’s motion on Counts I and III.89 Both
84
Id. at 36-39.
85
Id.
86
Id. at 35.
87
Id. at 35-36, 38-39.
88
Id. at 36, 38-39.
89
Tours’ Ans. Br. at 54-58.
-15-
the Maryland- and New Jersey-based Non-Hosanna tours contend that there remains
a genuine issue for trial as to whether COVID-19 itself counts as “direct physical
loss or damage” under either state’s laws.90 Specifically, these tours argue that “[a]
direct physical loss often involves some physical alteration to the covered property,”
and that “several courts have ruled that alterations at the ‘microscopic’ or
‘molecular’ level may constitute physical loss under a property insurance policy.”91
Further, the Non-Hosanna tours maintain that discovery has revealed scientific
evidence that COVID-19 is a “physical substance,” pointing to expert depositions
and planned testimony about how the virus spreads through “fomite transmission”
and via airspaces.92 The Maryland- and New Jersey-based tours also argue that there
is a substantial statistical likelihood that COVID-19 was present at the venues where
the Tours would perform, but primarily attribute their income losses to the general
presence of the virus in the atmosphere and in the world.93
Hartford contends that, as to Count II, it is entitled to summary judgment on
the Non-Hosanna tours’ claims of breach of the implied covenant of good faith and
fair dealing.94 Hartford says there can be no bad faith in the absence of coverage in
90
Id. at 58-62.
91
Id. at 54-55.
92
Id. at 58-59.
93
Id. at 61-62.
94
Hartford’s Open. Br. at 43-45.
-16-
the first instance; too, it points to the routine and ordinary manner in which the
claims were handled and ultimately denied.95
The Non-Hosanna tours counter that Hartford acted in bad faith when it denied
their claims under the Standard Policy, so summary judgment cannot be rendered on
Count II.96 In the Non-Hosanna tours’ view, Hartford failed to properly investigate
the claims and instead issued “boilerplate denials” when coverage of their
COVID-19-related claims was indeed due.97
B. HOSANNA’S BREACH-OF-CONTRACT AND GOOD FAITH CLAIMS
Hartford contends that it is entitled to summary judgment on Hosanna’s
breach-of-contract claim (Count VI).98 In short, Hartford maintains that the only
reasonable interpretation of Hosanna’s Theatrical Extension is that the tour
cancellation due to COVID-19 constituted one singular “covered occurrence.”99
Additionally, Hartford argues that Hosanna’s shutdown was due to the pandemic as
a whole, not the individual closure orders that occasioned it.100 Hosanna opposes
Hartford’s motion, arguing that each cancelled engagement was a separate
95
Id.; Hartford’s Repl. Br. at 12-13.
96
Tours’ Ans. Br. at 62-66.
97
Id. at 2, 65.
98
Hartford’s Open. Br. at 39-43.
99
Id.
100
Id.
-17-
“occurrence” under the policy.101 Hosanna relies on Jujamcyn Theaters LLC v. Fed.
Ins. Co.—where a federal district court in New York found a nearly identical policy
to be ambiguous—to posit that “covered occurrence” is subject to more than one
reasonable interpretation.102
Relatedly, Hartford contends it is also entitled to summary judgment on
Hosanna’s bad faith claim (Count VII). Hartford argues that its denial of Hosanna’s
second claim was proper, ordinary, and reasonable.103 In opposition, Hosanna
protests that Hosanna acted unreasonably.104
C. NETWORKS TOURS’ FRAUD CLAIM
Hartford further moves for summary judgment on the NETworks tours’ fraud
claim found in Count IV.105 Here, Hartford makes three main arguments: (1) No
one at Hartford made any false statements directed to the NETworks tours regarding
the addition of the Theatrical Extension; (2) Hartford cannot be held vicariously
liable for Mr. Middleton’s statements, and; (3) even if Hartford could be vicariously
liable for Mr. Middleton’s statements, there is no basis for liability because
101
Tours’ Ans. Br. at 66-67.
102
2023 WL 2366789, at *6-7 (S.D.N.Y. Mar. 6, 2023); id. at 51-52.
103
Hartford’s Open. Br. at 43-45.
104
Tours’ Ans. Br. at 66-68.
105
Hartford’s Open. Br. at 61-66.
-18-
Mr. Middleton did not perpetuate an actionable fraud.106
In opposing Hartford’s attack on its fraud claim, the NETworks tours suggest
first that a genuine issue of material fact remains whether a principal-agent
relationship existed between Hartford and MDP, as evidenced by the written Agency
Agreement.107 Second, the NETworks tours argue that there is sufficient evidence
of Mr. Middleton’s fraudulent misrepresentations to present to a jury, contending
that Mr. Middleton made false statements about the addition of the Theatrical
Extension to the Standard Policy.108 The NETworks tours maintain that Hartford is
vicariously liable for MDP and Mr. Middleton’s purported fraudulent
misrepresentations regarding the Theatrical Extension.109
D. DECLARATORY JUDGMENT CLAIM REGARDING MODIFICATION OF THE
STANDARD POLICY
Finally, Hartford says it is entitled to summary judgment on the Tours’ prayer
for declaratory judgment demanding the addition of the Theatrical Extension to the
Standard Policy (Count V).110 Hartford identifies the policy’s endorsement
requirement as forestalling any finding that the Standard Policy was or could be
106
Id. at 61.
107
Tours’ Ans. Br. at 24-40.
108
Id. at 31-40.
109
Id. at 24-40.
110
Hartford’s Open. Br. at 45-60.
-19-
deemed modified to include the Theatrical Extension.111 Put simply, because such
an endorsement was never issued, the Standard Policy cannot be deemed
modified.112 And, adds Hartford, even if Mr. Middleton had the authority to bind
Hartford and issue such an endorsement, he never did so.113
III. APPLICABLE LEGAL STANDARDS
“Summary judgment is appropriate where the record demonstrates 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.’”114 The standards the Court employs to determine
whether summary judgment is due are well-known. The Court: “(i) construes the
record in the light most favorable to the non-moving party; (ii) detects, but does not
decide, genuine issues of material fact; and (iii) denies the motion if a material fact
is in dispute.”115 A fact is material if it “might affect the outcome of the suit under
governing law.”116
111
Id. at 45-50.
112
Id.
113
Id. at 50-61.
114
Parexel Int’l (IRL) Ltd. v. Xynomic Pharms., Inc., 2020 WL 5202083, at *4 (Del. Super. Ct.
Sept. 1, 2020) (quoting Del. Super. Ct. Civ. R. 56(c)).
115
US Dominion, Inc. v. Fox News Network, LLC, 2023 WL 2730567, at *17 (Del. Super. Ct.
Mar. 31, 2023 (quoting CVR Ref., LP v. XL Specialty Ins. Co., 2021 WL 5492671, at *8 (Del.
Super. Ct. Nov. 23, 2021)) (cleaned up).
116
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment.”). See also In re Asbestos Litigation, 2006 WL 3492370, at *3 (Del. Super.
-20-
During summary judgment proceedings, the movant bears the initial burden
of demonstrating that the undisputed facts support that party’s claims or defenses.117
Only if the motion is properly supported, does the burden then shift to the opponent
to demonstrate that there are material issues of fact for the resolution by the ultimate
fact-finder.118 Of course, the “issue of fact must be genuine.”119 And one opposing
summary judgment “must do more than simply show that there is some metaphysical
doubt as to material facts.”120
To be sure, the Court must—in the same instant—be both willing and cautious
during its summary judgment examination.121 But in the end, if it “finds that no
genuine issues of material fact exist, and the moving party has demonstrated [its]
entitlement to judgment as a matter of law, then summary judgment is
appropriate.”122
Ct. Nov. 28, 2006); Farmers Bank of Willards v. Becker, 2011 WL 3925428, at *3 (Del. Super.
Ct. Aug. 19, 2011).
117
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979) (citing Ebersole v. Lowengrub, 180 A.2d
467, 470 (Del. 1962)).
118
Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995).
119
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (cleaned
up).
120
Id.121
See McCabe v. Wilson, 1986 WL 8008, at *2 (Del. Super. Ct. June 26, 1986) (observing first
that it is “true that although difficult questions of law may exist, that in and of itself is not a ground
for denying summary judgment inasmuch as refusing to grant the motion does not obviate the
Court’s obligation to make a difficult decision” but then cautioning that “summary judgment, with
ever-lurking issues of fact, is a treacherous shortcut”).121
122
Brooke v. Elihu-Evans, 1996 WL 659491, at *2 (Del. Aug. 23, 1996) (citing Oliver B. Cannon
& Sons, Inc. v. Dorr-Oliver, Inc., 312 A.2d 322 (Del. Super. Ct. 1973)); see also Jeffries v. Kent
-21-
IV. DISCUSSION
A. HARTFORD IS ENTITLED TO SUMMARY JUDGMENT ON NETWORKS AND
TROIKA’S BREACH-OF-CONTRACT AND GOOD FAITH CLAIMS.
1. Maryland law applies to NETworks and Troika’s claims.
As the forum state, Delaware applies its own choice-of-law rules.123 Courts
in Delaware follow the Second Restatement’s “most significant relationship”
analysis when considering choice of law in contract disputes.124
There are three potential steps to be taken in Delaware’s “most significant
relationship” analysis:
(i) determining if the parties made an effective choice of law
through their contract; (ii) if not, determining if there is an actual
conflict between the laws of the different states each party urges
should apply; and (iii) if so, analyzing which state has the most
significant relationship.125
These Hartford policies do not specify which state’s law applies to disputes
arising thereunder.126 So, the Court must determine whether there is an actual
Cnty. Vocational Tech. Sch. Dist. Bd. of Educ., 743 A.2d 675, 677 (Del. Super. Ct. 1999)
(“However, a matter should be disposed of by summary judgment whenever an issue of law is
involved and a trial is unnecessary.” (citing Mitchell v. Wolcott, 83 A.2d 759, 761 (Del. 1951)).
123
See Sinnott v. Thompson, 32 A.3d 351, 354 (Del. 2011). More broadly, all questions of
procedure in this dispute will be addressed under Delaware law. See Weinstein v. Luxeyard, Inc.,
2022 WL 130973, at *3 (Del. Super. Ct. Jan. 14, 2022) (“. . . the general principle that the
procedural law of the forum state governs . . .”).
124
Certain Underwriters at Lloyds, London v. Chemtura Corp., 160 A.3d 457, 464 (Del. 2017).
125
Id.126
See Standard Policy.
-22-
conflict between the jurisdiction’s laws each party urges should apply.127 If the
parties urge the application of the same state laws though, further inquiry on any
potential conflict becomes unnecessary; the choice of law may be deemed
established by “implied consent.”128
Hartford urges that Maryland law applies to NETworks and Troika tours’
claims.129 NETworks and Troika agree.130 This is sufficient to establish that
Maryland law governs all claims by the NETworks and Troika tours.131
2. Under Maryland law, “direct physical loss” unambiguously means
tangible, concrete, and material harm.
The interpretation of an insurance policy is a question of law for the court.132
Maryland follows the “objective theory of contract interpretation.”133 If language in
an insurance policy is ambiguous when interpreted according to the objective theory
of contract interpretation, Maryland courts “construe that language ‘liberally in favor
127
Certain Underwriters at Lloyds, London, 160 A.3d at 464.
128
See Golden Pacific Bancorp v. F.D.I.C., 273 F.3d 509, 514, 514 n.4 (2d Cir. 2001) (finding
that choice of law was established by implied consent through the briefs of both parties, since both
parties assumed New York substantive law governed the issues) (citation omitted).
129
Hartford’s Open. Br. at 24-32.
130
Tours’ Ans. Br. at 24.
131
See Golden Pacific Bancorp, 273 F.3d at 514 n.4.
132
See Clancy v. King, 954 A.2d 1092, 1101 (Md. 2008) (describing the interpretation of a
contract as a question of law).
133
Plank v. Cherneski, 231 A.3d 436, 476 (Md. 2020) (citations omitted).
-23-
of the insured and against the insurer as drafter of the instrument.’”134 A contract “is
ambiguous if, ‘when viewed from [a] reasonable person perspective, that language
is susceptible to more than one meaning.’”135 When interpreting insurance policies
in particular, Maryland courts “examine the instrument as a whole, focusing on the
character, purpose, and circumstances surrounding the execution of the contract.”136
The Supreme Court of Maryland in Tapestry, Inc. v. Factory Mutual Ins. Co.
interpreted the phrase “physical loss or damage” in an insurance policy as requiring
“tangible, concrete, and material harm.”137 In Tapestry, the plaintiff retailer operated
15 stores in Maryland and over 1,400 worldwide.138 That retailer was insured by the
defendant company under two policies139 covering “property . . . against all risks of
physical loss or damage, except as hereinafter excluded.”140 The Maryland high
134
Connors v. Gov’t Emps. Ins. Co., 113 A.3d 595, 605 (Md. 2015) (quoting Megonnell v. United
Servs. Auto. Ass’n, 796 A.2d 758, 772 (Md. 2002)).
135
Ocean Petroleum, Co., Inc. v. Yanek, 5 A.3d 683, 690-91 (Md. 2010) (citing United Servs.
Auto. Assoc. v. Riley, 899 A.2d 819, 833 (Md. 2006)).
136
Bailer v. Erie Ins. Exchange, 687 A.2d 1375, 1378 (Md. 1997); see also Plank, 231 A.3d at
476-77 (“in interpreting a contract provision, we look to the entire language of the agreement, not
merely a portion thereof.” (quoting Nova Rsch., Inc. v. Penske Truck Leasing Co., 952 A.2d 275,
283 (Md. 2008))).
137
286 A.3d 1044, 1055 (Md. 2022).
138
Id. at 1049.
139
The two policies in Tapestry provide “property damage” coverage and “time element”
coverage. Business interruption or business income loss coverage is sometimes referred to as time
element coverage, as it is here. Only the time element coverage analysis is relevant for this
analysis. Time element or business income loss coverage protects against the consequence of the
loss, not the damage to the property itself. See id.140
Id.-24-
court determined that the phrase “physical loss or damage” is not ambiguous, and
thus its interpretation was grounded on the phrase’s ordinary meaning.141 The
Tapestry court then gleaned from dictionary definitions that “physical loss or
damage” must involve “tangible, concrete, and material harm to the property or
a deprivation of possession of the property.”142
Here, the Standard Policy includes two coverage provisions of note: Loss of
Use Coverage and Dependent Property Coverage. Loss of Use Coverage includes
“the actual loss of Business Income you sustain during the ‘period of restoration’
due to the necessary ‘suspension’ of your operations . . . caused by direct physical
loss to ‘Covered Property’ . . . by a Covered Cause of Loss . . .” 143 Dependent
Property Coverage includes payment “for the actual loss of Business Income you
sustain . . . due to direct physical loss to Dependent Property caused by or resulting
from a Covered Cause of Loss.”144 “Covered Cause of Loss” is defined as “direct
physical ‘loss’ to Covered Property from an external cause that occurs by chance,”
and “loss” is defined as “accidental loss or damage.”145 When incorporating internal
definitions, “direct physical loss” equates to “direct physical loss or damage.”
141
Id. at 1054-56.
142
Id. at 1056 (emphasis added) (citations omitted).
143
Standard Policy (Loss of Use Coverage) § A.1.
144
Id. (Dependent Property Coverage) § A.1.
145
Id. (Entertainment Equipment Coverage) §§ A.3, F.1.
-25-
The Standard Policy’s phrase “direct physical loss” is unambiguous: The
property in question must be lost or damaged. There is a physicality component,
and such physicality must be directed toward the property. Moreover, the property
loss or damage must be that which “caused” the insured’s loss of business income
due to necessary suspension or interruption of operations. Even when construing
the terms liberally and in favor of the insured, the Court finds no reason to stray from
the ordinary meaning of the at-issue coverage terms just as Tapestry set out.
The NETworks and Troika tours insist the Court should give weight to
Hartford’s omission of a “virus exclusion” from the Standard Policy—despite
Hartford’s prior knowledge of the dangers of viruses.146 The same was said in
Tapestry,147 and the same consideration thereof abides. As the Tapestry court noted,
“[u]ltimately, we are interpreting the [p]olicies . . . issued. We do not think the
availability on the insurance market of a broader virus exclusion undermines the
unambiguous language employed in the [p]olicies.”148 Just so here.
Accordingly, “direct physical loss” as it is used in the Business Income
Coverage, Dependent Property, and Civil Authority provisions of the Standard
Policy is interpreted to require “tangible, concrete, and material harm” to property
146
Compl. ¶ 142; Tours’ Ans. Br. at 2, 54, 66.
147
Tapestry, 286 A.3d at 1058-59.
148
Id.
-26-
be the cause of business income loss under Maryland law.
3. COVID-19 did not cause tangible, concrete, and material harm to the
NETworks and Troika tours’ (or dependent) property.
As established, “direct physical loss” requires “tangible, concrete, and
material harm” to property under Maryland law.149 When applying this definition,
the Tapestry court held that “tangible, concrete, and material harm to property . . .
unambiguously requires a loss of property, not the loss of use of property.”150 The
court elaborated, “[a]lthough the complete destruction or ruin of property can,
indeed, constitute a loss of that property, by permanently depriving the owner of any
value in it, the temporary loss of functional use of the same thing is different.”151
COVID-19 did not cause tangible, concrete, and material harm to the
NETworks and Troika tours’ property (or dependent property). First, the general
presence of COVID-19 and the ensuing global pandemic did (and still does) not
constitute direct physical loss as meant in the Standard Policy. Such “presence” is
too attenuated to qualify as tangible or concrete, and too abstract to be found
material.
Second, government closure orders because of that presence fall under the
category of mere loss of functionality or use. Just as the loss of functionality did not
149
Id. at 1056 (citations omitted).
150
Id. (quoting Terry Black’s Barbecue v. State Auto. Mut. Ins. Co., 22 F.4th 450, 456 (5th Cir.
2022)) (emphasis in original).
151
Id.-27-
constitute “physical loss or damage” in Tapestry,152 neither the suspension of the
touring theater productions nor the cancellation of engagements by venues constitute
“direct physical loss” envisaged upon a reasonable read of the Standard Policy.
Third, even if COVID-19 was present at the venues, the evidence presented
does not support a claim that the Maryland-based tours’ property was so damaged
as to be the actual necessary cause of business interruption. If COVID-19 does in
any way physically damage the air, these tours haven’t explained how that physical
“damage” effected the Covered Property in the Standard Policy in the manner
anticipated to trigger the specific defined coverage. If COVID-19 does physically
alter surfaces during contamination, these tours have shown neither the permanence
of said alteration nor the physical alteration of the structures themselves. Thus, these
contentions are insufficient to establish a genuine issue for trial under Maryland law.
Contrary to the NETworks and Troika’s contentions,153 the Supreme Court of
Maryland reviewed extensive scientific evidence explaining how SARS-CoV-2, the
virus that causes COVID-19, physically alters both the air and surfaces it touches.
Specifically, the court in Tapestry responded to nearly identical arguments regarding
the physicality of COVID-19, including that: those coronavirus particles “altered”
objects like doorknobs and purses into “vectors or disease”; when such coronavirus-
152
Id. at 1059-61.
153
See supra Part II(A).
-28-
infected particles settle on a surface, that surface becomes a ‘fomite’ and may remain
infectious for days, and; coronavirus particles enter the air in droplet or aerosol form
and physically alter the composition of the air.154 Even when assuming the truth of
these facts, the Tapestry court found that “the combination of a virus’s proximity to
property and resulting risk to human health does not constitute ‘physical loss or
damage’ to the property.”155 So too here.
Furthermore, expert testimony of a substantial statistical likelihood that
COVID-19 was present at the venues where the Tours would perform156 is
inconsequential. Such testimony neither establishes that COVID-19 was in fact
present at the venues, nor renders its effects tangible, concrete, or material.
Put simply, there is a claim-dooming disconnect between any theoretical
change to physical structures of and within the theatres and the actual reason that
these productions were shut down.
When viewing the facts in the light most favorable to NETworks and Troika,
the evidence presented creates no genuine issue of material fact as to whether
COVID-19 caused “direct physical loss” under Maryland law. Accordingly,
summary judgment on the NETworks and Troika tours’ claim in Count I and
154
Tapestry, 286 A.3d at 1059-61.
155
Id. at 1061.
156
Tours’ Ans. Br., Ex. 53 (“Expert Wit. Dep.”)
-29-
associated declaratory relief in Count III is GRANTED.
4. Hartford did not act in bad faith toward NETworks and Troika.
NETworks and Troika also allege that Hartford breached the implied covenant
of good faith and fair dealing.157 No independent cause of action at law exists in
Maryland for breach of the implied covenant of good faith and fair dealing.158 “A
breach of the implied duty of good faith and fair dealing is better viewed as an
element of another cause of action at law, e.g., breach of contract, than as a stand-
alone cause of action for money damages[.]”159 Bad faith “is not simply bad
judgment or negligence, but implies a dishonest purpose or some moral obliquity
and a conscious doing of wrong.”160 Maryland courts hold that in the insurance
context, a determination of whether an insurer reached a decision in good faith
generally requires “an evaluation of the insurer’s efforts to obtain information
related to the loss, accurately and honestly assess this information, and support its
conclusion with evidence obtained or reasonably available.”161
Here, Hartford did not act in bad faith under Maryland law. Hartford acted
157
Compl. ¶¶ 160-170.
158
Mount Vernon Props., LLC v. Branch Banking & Trust Co., 907 A.2d 373, 381 (Md. Ct. Spec.
App. 2006).
159
Id. at 381-82.
160
Rite Aid Corp. v. Hagley, 824 A.2d 107, 116 (Md. 2003) (quoting Catterton v. Coale, 579 A.2d
781, 783 (Md. Ct. Spec. App. 1990)).
161
All Class Const., LLC v. Mut. Ben. Ins. Co., 3 F. Supp. 3d 409, 417 (D. Md. 2014) (applying
Maryland law).
-30-
reasonably in denying NETworks and Troika’s claims. The Court has already
determined that the general impact of COVID-19 and the global pandemic do not
constitute “direct physical loss” under Maryland law. Therefore, NETworks and
Troika can’t sustain a claim of breach of the implied covenant of good faith and fair
dealing against Hartford solely for denying payment under the Standard Policy;
the denial was reasonable.
What’s more, Hartford followed ordinary claims-processing procedure when
denying coverage. There is no evidence of the requisite “moral obliquity” or
“conscious doing of wrong” to maintain a bad faith claim.162 Instead, the record
demonstrates that Hartford processed the claims, investigated them through
reasonable means, and denied them in a prompt, routine manner.163 The ordinary
denial of an insurance claim does not amount to bad faith.
Both because the underlying coverage claim fails for the reasons already
explained and there is no evidence supporting a charge of bad faith, summary
judgment on NETworks and Troika’s Count II must be GRANTED.
162
See Rite Aid Corp., 824 A.2d at 116.
163
See Band’s Visit Claim; Escape on Tour Claim.
-31-
B. HARTFORD IS ENTITLED TO SUMMARY JUDGMENT ON BANDSTAND’S
BREACH-OF-CONTRACT AND GOOD FAITH CLAIMS.
1. New Jersey law applies to Bandstand’s claims.
Hartford urges that New Jersey law applies to Bandstand’s claims. Bandstand
agrees. So, the Court applies New Jersey law here.164
2. Under New Jersey law, “direct physical loss” unambiguously requires
demonstrative damage.
In New Jersey, the interpretation of an insurance policy is a question of law.165
New Jersey courts first examine the plain language of the insurance policy and, if
the terms are clear, give them “their plain, ordinary meaning.”166 Further, if there is
no ambiguity in a policy’s terms, those terms are enforced “as written.”167 If its
terms are ambiguous, courts will ordinarily “construe [the] insurance contract
ambiguities in favor of the insured via the doctrine of contra proferentem.”168
Generally, “the basic notion [is] that the premium paid by the insured does not buy
coverage for all . . . damage but only for that type of damage provided for in the
164
See Golden Pacific Bancorp, 273 F.3d at 514 n.4.
165
E.g., Selective Ins. Co. of Am. v. Hudson E. Pain Mgmt. Osteopathic Med., 46 A.3d 1272, 1276
(N.J. 2012) (“An insurance policy is a form of contract, and the interpretation of contract language
is a question of law.”) (citations omitted).
166
Pizzullo v. New Jersey Mfrs. Ins. Co., 952 A.2d 1077, 1088 (N.J. 2008) (quoting Zacarias v.
Allstate Ins. Co., 775 A.2d 1262, 1264 (N.J. 2001)).
167
Zacarias, 775 A.2d at 1266.
168
Oxford Realty Grp. Cedar v. Travelers Excess & Surplus Lines Co., 160 A.3d 1263, 1270-71
(N.J. 2017) (citing Progressive Cas. Ins. Co. v. Hurley, 765 A.2d 195, 202 (N.J. 2001)).
-32-
policy.”169
New Jersey courts have interpreted the meaning of “direct physical loss” as
used in insurance policies170 and have “adopted a broad notion of the term
physical.”171 When “physical” is paired with another word, such as in “physical
injury,” New Jersey courts have found that the resulting term means a “detrimental
alteration[]” or “damage or harm to the physical condition of a thing.”172
With this, the phrase “direct physical loss” as it is used in Bandstand’s
Standard Policy isn’t ambiguous. The ordinary parlance and widely accepted
definitions of the phrase’s terms govern here: “direct physical loss” as it is used in
the Standard Policy requires some level of demonstrable damage or harm to the
physical condition of the subject property. An average policyholder like Bandstand
would well-understand that coverage would be extended only if the insured’s
property suffered a detrimental physical alteration or physical loss of some kind173
169
Weedo v. Stone-E-Brick, Inc., 405 A.2d 788, 790 (N.J. 1979).
170
See, e.g., Phibro Animal Health Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 142 A.3d
761, 771-72 (N.J. Super. Ct. App. Div. 2016); Customized Distrib. Servs. v. Zurich Ins. Co.,
862 A.2d 560, 564-65 (N.J. Super. Ct. App. Div. 2004), cert. denied, 871 A.2d 91 (N.J. 2005).
171
Phibro Animal Health Corp., 142 A.3d at 771 (internal quotations omitted).
172
See id. at 771-72 (citations omitted); see also Port Auth. of New York & New Jersey v. Affiliated
FM Ins. Co., 311 F.3d 226, 235 (3d Cir. 2002) (predicting what would become the law of New
Jersey in an action against property insurers to recover costs of asbestos abatement, the Third
Circuit observed that “[i]n ordinary parlance and widely accepted definition, physical damage to
property means ‘a distinct, demonstrable, and physical alteration’ of its structure.”) (quoting 10
Couch on Insurance § 148:46 (3d ed. 1998)).
173
See Mac Prop. Grp. LLC & The Cake Boutique LLC v. Selective Fire & Cas. Ins. Co., 278
A.3d 272, 284 (N.J. Super. Ct. App. Div.), cert. denied sub nom. MAC Prop. Grp. LLC v. Selective
-33-
and that damage, in turn, caused loss of business income.
3. COVID-19 did not cause demonstrable damage to Bandstand’s (or
dependent) property.
As established, “direct physical loss” requires demonstrable damage or harm
to the physical condition of the insured’s property under New Jersey law. 174 In
applying this standard, New Jersey courts have required some sort of alteration to
the property’s physical structure.175 For example, in Mac Prop. Grp. LLC & The
Cake Boutique LLC v. Selective Fire & Cas. Ins. Co., the plaintiffs were denied
recovery under their property insurance policies for business income losses as a
result of COVID-19 closures and restrictions.176 Those plaintiffs’ insurance policies
obligated the insurers to “pay for direct physical loss of or damage to Covered
Property,” as well as for business loss “caused by direct physical loss of or damage”
Fire & Cas. Ins. Co., 284 A.3d 440 (N.J.), and cert. denied sub nom. MAC Prop. Grp. LLC v.
Selective Fire & Cas. Ins. Co., 284 A.3d 443 (N.J. 2022).
174
See Id.; Phibro Animal Health Corp, 142 A.3d at 771; Port Auth. of New York & New Jersey,
311 F.3d at 235.
175
See Rockleigh Country Club LLC v. Hartford Ins. Group et al., 2022 WL 2204374, at *4-5
(N.J. Super. Ct. App. Div. June 21, 2022) (affirming dismissal because a country club’s pandemic-
related losses were not direct physical loss or direct physical damage); TMN LLC et al. v. Ohio
Sec. Ins. Co., 2023 WL 1830456, at *2 (N.J. Super. Ct. App. Div. Feb. 9, 2023) (upholding
dismissal of ice shops’ claim for COVID-19 related losses because of the failure to show sustained
property damage rendering the shops inoperable); Pure Hair Salon LLC v. Hiscox Ins. Co. Inc.,
2023 WL 2439546, at *4 (N.J. Super. Ct. App. Div. Mar. 10, 2023) (finding that, even if no virus
exclusion existed, hair salon could not show that it sustained any direct physical loss of or damage
to its facility due to COVID-19); Appearance Workshop Inc. v. Mercer Ins. Co. of New Jersey
Inc., 2023 WL 382305, at *2 (N.J. Super. Ct. App. Div. Jan. 25, 2023) (denying businesses’ claims
for pandemic-related loss coverage because no showing of direct physical loss or damage was
made).
176
Mac Prop. Grp. LLC, 278 A.3d at 278-80.
-34-
to plaintiffs’ covered premises.177 In upholding the coverage denial, the appellate
court found that “there was no damage to plaintiffs’ equipment or property . . . that
caused their premises to lose their physical capacity to operate, and there was no
physical alteration that made their premises dangerous to enter” resulting in
COVID-19 closures.178 The court further elaborated: “None of the plaintiffs’
premises required any repairs due to damage, nor needed to be relocated and then
reopened” due to COVID-19.179
Here too, there is nigh-on no evidence of demonstrable damage to
Bandstand’s (or dependent) properties. And mere pandemic-related loss of use,
access, or functionality is not enough for “direct physical loss or damage.”
The proffered scientific evidence of COVID-19’s physicality, even when
viewed in the light most favorable to Bandstand, reveals no demonstrable damage
to the physical condition of any of the venues at which Bandstand was scheduled to
perform. Like NETworks and Troika’s failure to show that COVID-19 and its
effects constitute direct, tangible, and concrete harm under Maryland law, Bandstand
fails in its burden to show COVID-19 caused demonstrable damage to its property.180
177
Id. at 282-83.
178
Id. at 284-85.
179
Id. at 285.
180
See analysis in Part IV(A)(3), supra. This is so even considering Bandstand’s postulation that
the appeal pending before the Supreme Court of New Jersey in AC Ocean Walk, LLC v. Am. Guar.
& Liab. Ins. Co. might signal that New Jersey has no true definitive ruling on whether COVID-19
causes “direct physical loss or damage.” see 288 A.3d 447 (N.J. 2023) (granting petition for
-35-
When looking for guidance beyond Maryland and New Jersey, it’s
informative that any number of sister state courts have upheld denials of insured’s
coverage claims brought under policies with identical or near-identical terms. In
each instance, these courts have found denial of coverage for COVID-19 losses
proper when the questioned policy included a physicality requirement.181 Indeed,
certification of judgment in 2022 WL 2254864 (N.J. Super. Ct. App. Div. June 23, 2022)); Tours’
Ans. Br. at 56-57.
181
See, e.g., Connecticut Dermatology Grp., PC v. Twin City Fire Ins. Co., 288 A.3d 187, 202-
03 (Conn. 2023) (“[COVID-19] is not the type of physical contaminant that creates the risk of a
direct physical loss because, once a contaminated surface is cleaned or simply left alone for a few
days, it no longer poses any physical threat to occupants.”); Cajun Conti LLC v. Certain
Underwriters at Lloyd’s, London, 359 So. 3d 922, 926-27 (La. 2023) (reinstating summary
judgment dismissal because “the plain, ordinary and generally prevailing meaning of direct
physical loss of or damage to property requires the insured’s property sustain a physical, meaning
tangible or corporeal, loss or damage” and COVID-19 did not cause such loss or damage) (internal
citations omitted); Verveine Corp. v. Strathmore Ins. Co., 184 N.E.3d 1266, 1275-78 (Mass. 2022)
(“Evanescent presence of a harmful airborne substance that will quickly dissipate on its own, or
surface-level contamination that can be removed by simple cleaning, does not physically alter or
affect property.”); Starr Surplus Lines Ins. Co. v. Eighth Judicial Dist. Ct. in and for County of
Clark, 535 P.3d 254, 266-67 (Nev. 2023) (dismissing insured’s claim on summary judgment
despite scientific evidence that COVID-19 “is a physical particle” and of its “fomite-based
transmission,” because the evidence “does not demonstrate that the virus is harmful to the
property” (emphasis in original)); Schleicher and Stebbins Hotels, LLC v. Starr Surplus Lines Ins.
Co., 302 A.3d 67, 77-81 (N.H. 2023) (reversing trial court’s denial of summary judgment because
COVID-19 does not change property in a distinct and demonstrable way, and the absence of a
virus exclusion cannot be used to contradict the contract); Hill & Stout, PLLC v. Mutual of
Enumclaw Ins. Co., 515 P.3d 525, 532 (Wash. 2022) (“[T]he claim for loss of intended use and
loss of business income [during the COVID-19 pandemic] is not a physical loss of property.”);
Inns-by-the-Sea v. California Mut. Ins. Co., 286 Cal. Rptr. 3d 576, 591-95 (Cal. Ct. App. 2021)
(finding that mere loss of the ability to use physical premises does not constitute direct physical
loss of property, and that the absence of an exclusion cannot be used to create an ambiguity in an
otherwise unambiguous insuring clause); Commodore Inc. v. Certain Underwriters at Lloyd’s,
London, 342 So. 3d 697, 702 (Fla. Dist. Ct. App. 2022) (denying coverage for a Miami café’s
financial losses after COVID-19 forced it to halt in-person dining service because the ordinary
meaning of physical carries a tangible aspect); MTDB Corp. v. Am. Auto Ins. Co., 2022 WL
18012348, at *5 (Ill. App. Ct. Dec. 30, 2022) (dismissing claim for pandemic-related losses
because the likely presence of COVID-19 was insufficient proof that the virus caused physical loss
or damage); Isaac’s At Spring Ridge LLP v. MMG Ins. Co., 2023 WL 4074057, at *4 (Pa. Super.
-36-
there has been near unanimity in both state and federal courts182 that COVID-19
losses are not physical damage/loss in nature. As for our federal siblings, they have
found too that claimed business losses occasioned by COVID-19 government
shutdown orders were not due to “physical loss or damage.”183 Same here.
Ct. June 20, 2023) (affirming lower court’s dismissal of restaurant’s claim for coverage of losses
due to COVID-19 because the policy required physical loss or damage).
182
See Carilion Clinic v. Am. Guarantee & Liab. Ins. Co., 583 F. Supp. 3d 715, 722-25 (W.D.
Va. 2022) (summarizing federal appellate court decisions, each concluding that property insurance
policies providing coverage for direct physical loss of or damage to property do not cover property
damage and business interruption losses stemming from COVID-19); Promotional Headwear Int’l
v. Cincinnati Ins. Co., 504 F. Supp. 3d 1191, 1200 (D. Kan. 2020) (“[T]he overwhelming majority
of cases to consider business income claims stemming from COVID-19 with similar policy
language hold that direct physical loss or damage to property requires some showing of actual or
tangible harm to or intrusion on the property itself.”). See also, e.g., Olmsted Med. Ctr. V. Cont’l
Cas. Co., 65 F.4th 1005, 1010 (8th Cir. 2023)) (“[A]lthough [COVID-19] may have a physical
element, it does not have a physical effect on real or personal property.”) (internal quotations and
citations omitted); Farmington Village Dental Associates, LLC v. Cincinnati Ins. Co., 2022 WL
2062280, at *1 (2d Cir. June 8, 2022) (“allegations that [COVID-19] causes physical loss or
physical damage to [] property by way of its transmissibility through physical particles in the air
and on surfaces fail to allege how the presence of those virus-transmitting particles tangibly alter
or impact the property” (emphasis in original)); Menominee Indian Tribe of Wisconsin v. Lexington
Ins. Co., 556 F. Supp. 3d 1084, 1101 (N.D. Cal. 2021), (“the presence of a virus, which can be
eliminated through cleaning and disinfecting, would not constitute a physical event that caused the
loss”) (internal citations omitted), appeal dismissed, 2022 WL 19697110 (9th Cir. Oct. 7, 2022);
Kim-Chee LLC v. Philadelphia Indem. Ins. Co., 535 F. Supp. 3d 152, 158-160 (W.D.N.Y. 2021)
(adopting the reasoning of other New York courts that COVID-19 does not cause direct physical
loss or damage because it does not alter the characteristics of the covered property and is rendered
harmless by the passage of a few days), aff’d, 2022 WL 258569 (2d Cir. Jan. 28, 2022);Ceres
Enterprises, LLC v. Travelers Ins. Co., 520 F. Supp. 3d 949, 961-62 (N.D. Ohio 2021) (finding
that the mere physical presence of the virus on property does not constitute physical loss under the
applicable policy or Ohio law).
183
E.g., Estes v. Cincinnati Ins. Co., 23 F.4th 695, 700 (6th Cir. 2022) (“The average person would
not say that [insured] suffered a physical loss of its dental offices when describing the harms that
befell it in this case. COVID-19 did not destroy its dental offices, and the government shutdown
orders did not dispossess it of them for a single day. [Insured] bought a property insurance policy,
not a profit insurance policy.”) (cleaned up); Santo’s Italian Café, LLC v. Acuity Ins. Co., 15 F.4th
398, 401 (6th Cir. 2021) (“Whether one sticks with the terms themselves (a direct physical loss of
property) or a thesaurus-rich paraphrase of them (an immediate tangible deprivation of property),
the conclusion is the same. The policy does not cover this loss resulting from the suspension of
-37-
Bandstand has not presented a genuine issue for trial under New Jersey law,
so summary judgment on its claim in Count I and for associated declaratory relief in
Count III is GRANTED to Hartford.
4. Hartford did not act in bad faith toward Bandstand.
Hartford is also entitled to summary judgment on Bandstand’s claim of bad
faith. Under New Jersey law, an insurance company owes a duty of good faith to its
insured in processing a first-party claim. Indeed, under New Jersey law, there is an
implied covenant of good faith and fair dealing in every contract.184 Bad faith is not
explicitly defined in New Jersey, but courts have emphasized that “principles of
equity, fair dealing and good faith” govern the contractual relationship between
insured and insurer.185 Here, Hartford did not act in bad faith toward Bandstand.
First, Hartford acted reasonably in denying Bandstand’s claim. Bandstand’s
business operations during the COVID-19 pandemic.”) (cleaned up); Bradley Hotel Corp. v. Aspen
Specialty Ins. Co., 19 F.4th 1002, 1007-08 (7th Cir. 2021) (finding that government closure orders
caused a mere loss of use of property without any physical alteration, not direct physical loss or
damage); Oral Surgeons, P.C. v. Cincinnati Ins. Co., 2 F.4th 1141, 1145 (8th Cir. 2021)
(determining that losses due to government-imposed restrictions related to COVID-19 do not
constitute direct physical loss or damage to property); Mudpie, Inc. v. Travelers Cas. Ins. Co. of
Am., 15 F.4th 885, 889, 894 (9th Cir. 2021) (affirming district court’s dismissal because the insured
“fail[ed] to allege any intervening physical force beyond the government closure orders” that
caused direct physical loss of or damage to insured’s property); Michael Cetta, Inc. v. Admiral
Indem. Co., 506 F. Supp. 3d 168, 179 (S.D.N.Y. 2020) (concluding that loss of use of premises
due to a governmental closure order “does not trigger business income coverage premised on
physical loss to property”).
184
Onderdonk v. Presbyterian Homes of New Jersey, 425 A.2d 1057, 1062 (N.J. 1981); Bak–A–
Lum Corp. of Am. v. Alcoa Bldg. Prods., Inc., 351 A.2d 349, 352 (N.J. 1976); Palisades Properties,
Inc. v. Brunetti, 207 A.2d 522, 531 (N.J. 1965).
185
Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 323 A.2d 495, 504 (N.J. 1974).
-38-
Standard Policy required “direct physical loss,” which New Jersey law defines as
requiring demonstrable damage to the insured’s property.186 COVID-19 and its
effects did not cause “demonstrable damage” to Bandstand’s (or dependent)
property. So, Hartford’s denial was reasonable.
Second, just as with the denial of NETworks and Troika’s claims, the record
shows that Hartford followed standard procedure in its handling of Bandstand’s
claim.187 There’s no evidentiary support for any suggestion that Hartford violated
principles of equity, fair dealing and good faith under New Jersey law when denying
Bandstand’s requested coverage.
Summary judgment on Bandstand’s claim of breach of the implied covenant
of good faith and fair dealing in Count II is GRANTED.
C. HARTFORD IS ENTITLED TO SUMMARY JUDGMENT ON HOSANNA’S
BREACH-OF-CONTRACT AND GOOD FAITH CLAIMS.
1. Hosanna’s claims are governed by New Jersey law.
Hartford urges that New Jersey law applies for Hosanna’s claims, and
Hosanna agrees. Because both parties agree, the Court turns to New Jersey law.188
2. The Theatrical Extension in Hosanna’s policy is unambiguous.
New Jersey law governs the interpretation of Hosanna’s Theatrical
186
See supra Part IV(B)(2)-(3).
187
See Band’s Visit Claim.
188
See Golden Pacific Bancorp, 273 F.3d at 514 n.4.
-39-
Extension.189 Unlike the Non-Hosanna tours’ Standard Policy, Hosanna’s policy
includes the Theatrical Extension which has no “physical loss or damage”
requirement.190 So, the Hosanna policy covers “the actual loss of Business Income
you sustain due to the necessary[] interruption, postponement or cancellation of a
production due to a ‘covered occurrence.’”191 It also provides a $1.4 million
Business Income limit “per occurrence.”192
3. The “Covered Occurrence” was the pandemic as a whole, not
individual jurisdictions’ or venues’ closures.
The key terms of the Hosanna Policy’s Theatrical Extension are unambiguous.
A “covered occurrence” is indeed defined in the policy as “any unexpected
circumstances beyond your control except as listed in the Exclusions.” 193 And the
listed exclusions include specific circumstances that are not “covered occurrences,”
including strikes, weather conditions, and loss of financial support.194 But one
cannot start there.
The Theatrical Extension coverage provision states that coverage will be
extended for loss sustained “due to the necessary, interruption, postponement or
189
For the governing New Jersey rules on contract interpretation, see supra Part IV(B)(2).
190
See Hosanna Policy.
191
Id. (Theatrical Extension) § B.1.a.
192
Id. § Schedule.
193
Id. § B.9.a.
194
Id. § B.4.
-40-
cancellation of a production due to a ‘covered occurrence.’”195 When viewed in its
contractual context,196 it is “the” event of necessary interruption, postponement or
cancellation of a production that’s covered.197 And it matters not the duration of the
production’s shutdown—i.e. that it is days, weeks, or months, spanning multiple
performances and venues—just its root cause and continuation from that single
“covered occurrence.” This makes sense when giving a natural read to the contract
as a whole.198 The Theatrical Extension plainly and unambiguously insures Hosanna
for each interruption that begins and endures because of a covered occurrence; it
does not break that single interruption (even if prolonged) down by performance or
195
Id. § B.1.a. (punctuation errors in original) (emphasis added).
196
See Prather v. Am. Motor. Ins. Co., 67 A.2d 135, 138 (N.J. 1949) (applying the “elemental rule
of construction” that a contract will be “read and considered as a whole.”).
197
“The” is a word of limitation that particularizes the subject it precedes, as opposed to the
indefinite or generalizing force of ‘a’ or ‘an.’” Black’s Law Dictionary 1477 (6th ed. 1990) (“In
construing statute, definite article ‘the’ particularizes the subject which it precedes and is word of
limitation as opposed to indefinite or generalizing force ‘a’ or ‘an’”); Brooks v. Zabka, 450 P.2d
653, 655 (Colo. 1969) (describing principle as “a rule of law well established”); Stephan v.
Pennsylvania General Insurance Co., 621 A.2d 258, 261 (Conn. 1993) (applying same principle
to construction of insurance policy); see Pike Creek Recreational Servs., LLC v. New Castle Cnty.,
238 A.3d 208, 213-14 (Del. Super. Ct. 2020) (explaining that “Delaware applies equivalent
interpretive rules in the statutory and contractual contexts”). Here, the “the” does important work.
See Weinberg v. Waystar, Inc., 249 A.3d 1039, 1044 (Del. 2023) (providing an important reminder
that resolution of a contract dispute sometimes “lies in the correct interpretation of . . . one of the
most common words in the English language”—the word “and” in that case—and “[o]ne should
not be fooled by the size and ubiquity of the word” at issue, because even the use or specific
placement of a “seemingly simple word in legal drafting” is critical).
198
See Chicago Bridge & Iron Co. N.V. v. Westinghouse Electric Co. LLC, 166 A.3d 912, 913-
14 (Del. 2017) (“In giving sensible life to a real-world contract, courts must read the specific
provisions of the contract in light of the entire contract.”).
-41-
venue.199
Not so, says Hosanna. In its view, each individual government closure
constitutes a “covered occurrence” under the Hosanna Policy. As such, Hosanna
believes that the $1.4 million policy limit should be applied on a per-show or per-
venue basis, not to the production cancellation in its entirety. This postulation fails
both factually and as a matter of contract interpretation.
First, the facts bear out that the “interruption, postponement or cancellation”
of Hosanna’s “production” was caused by the pandemic as a whole, not individual
closures. New Jersey courts use the majority-rule “cause test” to determine number
of occurrences under a liability insurance policy.200 That is of utility here. Under
the cause test, the Court asks if there was but one proximate, uninterrupted, and
continuing cause that resulted in all the claimed injuries and damage.201 New Jersey
199
In opposition, Hosanna cites to the Southern District of New York’s decision in Jujamcyn
Theaters LLC v. Fed. Ins. Co. as support for its argument that the term “covered occurrence” is
ambiguous. 2023 WL 2366789 (S.D.N.Y. Mar. 6, 2023); Tours’ Ans. Br. at 51-52. In Jujamcyn,
however, the ambiguity stemmed not from the term “occurrence,” but from the term “loss,” which
was defined differently. Id. at *2. Additionally, the Jujamcyn decision was made at the pleadings
stage and the Jujamcyn court did not then resolve the issue on the pleadings because it would be
inappropriate to do so. Id. at *7. In contrast, this matter is now on summary judgment and the
interpretation of the entirety of the policy’s operative terms is a matter of law that the Court must
resolve. EQR-LPC Urb. Renewal N. Pier, LLC v. City of Jersey City, 173 A.3d 243, 249 (N.J.
Super. Ct. App. Div. 2016) (“Contractual interpretation is a legal matter ordinarily suitable for
resolution on summary judgment.”) (citations omitted), aff’d, 173 A.3d 184 (N.J. 2017).
200
Doria v. Ins. Co. of N. Am., 509 A.2d 220, 223-24 (N.J. Super. Ct. App. Div. 1986).
201
See id.; see also Westinghouse Elec. Corp. v. Am. Home Assurance Co., 2004 WL 1878764, at
*27 (N.J. Super. Ct. App. Div. July 8, 2004) (stating the general rule but applying Pennsylvania
law).
-42-
courts have elaborated that if injuries “are so closely linked in time and space as to
be deemed by the average person as a single event, there is but one occurrence.”202
Comparatively, “if enough time has elapsed between the injuries or damages to the
various items involved or if the latter are widely separated in space, the courts have
been inclined to allow separate claims even though they sprang from the same
cause.”203
Without doubt, Hosanna’s production was suspended due to the pandemic as
a single event. When the COVID-19 pandemic struck, the entertainment industry
shut down. As part of that industry, Hosanna suspended its touring production in
March 2020. While government closure orders ensued, those orders cannot be
excised from the body of the pandemic as instigator. The cause of Hosanna’s
continuous production interruption wasn’t the intermittent government orders, but
the pandemic as a singular force causing proximate, uninterrupted, continuing
closure of the nation.204
202
Bomba v. State Farm Fire & Cas. Co., 879 A.2d 1252, 1255 (N.J. Super. Ct. App. Div. 2005)
(quoting Doria, 509 A.2d at 221).
203
Doria, 509 A.2d at 224 (citations omitted).
204
When applying this cause test, decisions in other jurisdictions with analogous facts are helpful.
In Owens-Illinois, Inc v Aetna Casualty & Surety Co, the action concerned claims brought against
the policyholder by plaintiffs exposed to its asbestos-containing products. 597 F. Supp. 1515, 1517
(D.D.C. 1984). The federal district court there held that “the underlying circumstance that gave
rise to the claims for damages was [the policyholder’s] manufacture and sale of a hazardous
asbestos containing product.” Id. at 1527. That circumstance constituted a single occurrence. Id.And in Appalachian Ins. Co. v. Liberty Mut. Ins. Co., a company’s discriminatory employment
policies were found to be a singular occurrence for purposes of policy coverage in a class action
sex discrimination lawsuit. 676 F.2d 56, 58-63 (3d Cir. 1982). The Third Circuit explained that
-43-
Second, the term “covered occurrence” cannot be reasonably interpreted to
include specific government closure orders when reading the entire policy. “A basic
principle of contract interpretation is to read the document as a whole in a fair and
common-sense manner.”205 Indeed, the Court “will, if possible, give effect to all
parts of the instrument, and an interpretation which gives a reasonable meaning to
all its provisions will be preferred to one which leaves a portion of the writing useless
or inexplicable.”206
In the Civil Authority provision of Hosanna’s policy, coverage is extended to
“actions of civil authority” that are “caused by or result from a ‘covered
occurrence.’”207 Were the term “covered occurrence” interpreted to include actions
of civil authority such as closure orders, then those orders would be both the covered
occurrence and the cause of the covered occurrence per the terms of the Civil
Authority coverage provision. The Court cannot reasonably interpret the policy this
way.
Based on the plain and unambiguous terms of the Hosanna Policy and the
facts presented, the Court finds that Hosanna is not entitled to additional payments
“as long as the injuries stem from one proximate cause there is a single occurrence.” Id. at 61(citation omitted). Just so here.
205
Hardy ex rel. Dowdell v. Abdul-Matin, 965 A.2d 1165, 1169 (N.J. 2009) (citation omitted).
206
Maryland Cas. Co. v. Hansen–Jensen, Inc., 83 A.2d 1, 4 (N.J. Super. Ct. App. Div. 1951)
(citations omitted).
207
Hosanna Policy (Theatrical Extension) § B.3.
-44-
from Hartford. Accordingly, summary judgment for Hartford on Count VI is
GRANTED.
4. Hartford did not act in bad faith toward Hosanna.
Hartford is entitled to summary judgment on Hosanna’s bad faith claim under
New Jersey law.208 The record shows that Hartford paid Hosanna the full amount
allowed under the policy for what it rightly deemed to be a single “covered
occurrence.”209 Again, the ordinary claim-processing procedure was followed in
responding to Hosanna’s second request for coverage under its policy. In turn, the
request was properly and promptly investigated and denied.210 There is no evidence
of bad faith.
Contrary to Hosanna’s contentions, the appropriate question at this stage is
not merely whether Hartford’s denial was at the time debatable because bad faith
requires more than just a debatable claims decision.211 Moreover, Hosanna can point
to no evidence that Hartford made what it dubs a debatable decision in an
unreasonable manner. Accordingly, summary judgment on Count VII is GRANTED
to Hartford.
208
See supra Part IV(B)(4) for the governing rules on bad faith in New Jersey.
209
Hosanna Claim Payment.
210
See id.
211
Badiali v. New Jersey Mfrs. Ins. Grp., 107 A.3d 1281, 1288 (N.J. 2015) (“[M]ere failure to
settle a debatable claim does not constitute bad faith.”).
-45-
D. HARTFORD IS ENTITLED TO SUMMARY JUDGMENT ON THE TOURS’ FRAUD
CLAIM.
Maryland law governs the NETworks tours’ fraud claim (Count IV).212 Here,
the NETworks tours allege that Mr. Middleton and MDP, acting as Hartford’s
agents, perpetuated a fraud regarding the addition of the Theatrical Extension (or, in
NETworks’ view, an unjustified failure to effect its addition) to the NETworks tours’
policies. Summary judgment dismissal of this fraud claim is warranted because:
(1) Mr. Middleton and MDP were not Hartford’s agents; and (2) the record is devoid
of facts showing that Hartford perpetuated a fraud.
1. Mr. Middleton and MDP’s relationship with Hartford was not such
that it could visit fraud liability upon Hartford.
Hartford first argues that it is entitled to summary judgment on the NETworks
tours’ fraud claim because neither MDP nor Mr. Middleton are (or were) Hartford’s
agents, so Hartford cannot be held liable for any alleged misrepresentations by
them.213 Under Maryland law, an insurance “broker”214 is generally the “agent of
212
See supra Part IV(A)(1).
213
Hartford’s Open. Br. at 50-53, 62-64.
214
A “broker” is defined in Maryland Code § 1–101(i) of the Insurance Article (“Insur.”) as
follows:
(i) Broker.—“Broker” means a person that, for compensation, solicits, procures, or
negotiates insurance contracts or the renewal or continuance of insurance contracts:
(1) for insureds or prospective insureds other than the broker; and
(2) not for an insurer or agent.
MD. CODE ANN. Insur. § 1–101(i) (2020).
-46-
the insured, not the insurer.”215 As Maryland’s highest court has explained:
An insurance . . . broker[] is one who acts as a middleman
between the assured and the insurer, and who solicits insurance
from the public under no employment from any special company,
but having secured an order, either places the insurance with a
company selected by the assured, or in the absence of any
selection by him, then with a company selected by the broker.
Ordinarily, the relation between the insured and the broker is that
between principal and agent.216
Just so here—neither Mr. Middleton nor MDP were Hartford’s agents. To start,
Mr. Middleton and MDP are not employed by Hartford. Instead, MDP is an
independent company utilized by, but not tied to, multiple insurance providers.
Next, Mr. Middleton and MDP did not have the power to set the terms of any
policies on behalf of Hartford. The Agency Agreement between Hartford and MDP
grants limited authority, only exercisable with Hartford’s ultimate approval, to
“solicit, quote and bind insurance” on behalf of Hartford.217 This agreement allowed
for MDP and Mr. Middleton to serve only as a middleman. The limitations of that
arrangement are evidenced by the repeated back-and-forth emails between
Mr. Middleton and Hartford, in which Mr. Middleton had to ask for permissions and
Hartford’s position on every aspect of the policy provisions before any were
implemented. As is clear from the record, and supported by Maryland law, MDP
215
Green v. H & R Block, Inc., 735 A.2d 1039, 1054 (Md. 1999).
216
Id. (quoting American Casualty Co. v. Ricas, 22 A.2d 484, 487 (Md. 1941)).
217
Agency Agreement § II.1(a).
-47-
and Mr. Middleton weren’t Hartford’s agents upon whose statements Hartford’s
fraud liability could be built.
NETworks contends that even if MDP and Mr. Middleton were independent
insurance brokers, a sufficient principal-agent relationship existed between them and
Hartford in this instance.218 The components of a principal-agent relationship in
Maryland were described comprehensively in Green v. H&R Block.219 In Green, the
Maryland high court used three non-determinative factors to determine the existence
of an agency relationship: (1) the principal’s right of control over the agent, (2) the
agent’s duty to act primarily for the benefit of the principal, and (3) the agent’s power
to alter the legal relations of the principal.220 These three factors adapted in Green
are “neither exclusive nor conclusive considerations in determining the existence of
an agency relationship.”221 Indeed, said the Green court, “the primary determination
of whether a principal-agent relationship exists involves ascertaining the parties’
intent, as evidenced by their agreements and actions.”222
Here, the record does not support a finding that MDP and Mr. Middleton were
in a principal-agent relationship with Hartford. Mr. Middleton’s duty was to act
218
Tours’ Ans. Br. at 33-36.
219
735 A.2d 1039, 1048-49 (Md. 1999).
220
Id. at 1048.
221
Id. at 1049.
222
Id.-48-
primarily for the benefit of NETworks, not for Hartford. Both Mr. Middleton and
NETworks understood that he was acting on NETworks’ behalf to solicit and
procure insurance for upcoming shows.223 If the agent of anyone, Mr. Middleton
was the agent of NETworks. What’s more, Mr. Middleton had absolutely no power
to set or alter the terms of Hartford’s insurance policies. In short, there’s next to
nothing to support a finding of a principal-agent relationship between Mr. Middleton
and Hartford.
Maryland law is clear—insurance brokers are not agents of the insurer. Here,
MDP and Mr. Middleton were independent insurance brokers. Given that, Hartford
cannot be held vicariously liable for Mr. Middleton’s representations in assisting
NETworks to seek out and attempt to procure certain policy coverage.
2. NETworks fails to show Hartford perpetuated a fraud.
The NETworks tours contend that the back-and-forth between Ms. Gladding
(on behalf of Hartford), Mr. Middleton, and NETworks supports its charge that
Hartford fraudulently misrepresented that the Theatrical Extension would be added
to existing insurance policies for the 2019-2020 touring season. On each and every
element of their fraud claim, the NETworks tours fall short.
Under Maryland law, “[f]raud encompasses, among other things, theories of
fraudulent misrepresentation, fraudulent concealment, and fraudulent
223
Middleton Dep. 31 (“We always represent the policyholder.”); NETworks Exec. Dep. 69-71.
-49-
inducement.”224 Regardless of the particular theory, the plaintiff must establish the
elements of fraud “by clear and convincing evidence.”225 To assert a fraud claim, a
plaintiff must show:
(1) the defendant made a false representation to the plaintiff,
(2) the falsity of the representation was either known to the
defendant or the representation was made with reckless
indifference to its truth, (3) the misrepresentation was made for
the purpose of defrauding the plaintiff, (4) the plaintiff relied on
the misrepresentation and had the right to rely on it, and (5) the
plaintiff suffered compensable injury as a result of the
misrepresentation.226
To reiterate, Maryland’s clear-and-convincing burden of proof applies to each
individual element of one’s fraud claim.227
At the outset, neither Hartford nor Mr. Middleton made any false
representations to NETworks. A “false representation” is a statement, conduct, or
action that intentionally misrepresents a material fact.228 “A material fact is one on
which a reasonable person would rely in making a decision,”229 or a fact that “the
224
Sass v. Andrew, 832 A.2d 247, 261 (Md. Ct. Spec. App. 2003) (citations omitted).
225
Md. Envtl. Trust v. Gaynor, 803 A.2d 512, 516 (Md. 2002); see also First Nat’l Bank v. U.S.F.
& G. Co., 340 A.2d 275, 283 (Md. 1975) (“When fraud . . . is imputed, something more than a
mere preponderance of evidence must be produced . . . .”).
226
White v. Kennedy Krieger Inst., Inc., 110 A.3d 724, 744 (Md. Ct. Spec. App. 2015) (quoting
Hoffman v. Stamper, 867 A.2d 276, 292 (Md. 2005)).
227
Central Truck Center, Inc. v. Central GMC, Inc., 4 A.3d 515, 522-23 (Md. Ct. Spec. App.
2010) (“A plaintiff must present clear and convincing evidence of each element in its claims.”
(citing Gourdine v. Crews, 955 A.2d 769, 791 (Md. 2008))).
228
Sass, 832 A.2d at 260 (citations omitted).
229
Id. (internal quotations omitted).
-50-
maker of the misrepresentation knows . . . [the] recipient is likely to regard . . . as
important . . . .”230
There’s no evidence that Hartford itself made false representations to
NETworks. Through multiple back-and-forth emails, Hartford communicated with
Mr. Middleton about adding the Theatrical Extension to renewals and new shows.
At no point did Hartford misrepresent, intentionally or not, that the Theatrical
Extension were or would be, without further negotiation, added to Networks’
existing policies.
Even if Hartford could be held liable for Mr. Middleton’s representations, the
extensive record developed does not demonstrate that his future hopeful promises
rise to the level of present falsity. It is well-established that “fraud cannot be
predicated on statements which are merely promissory in nature, or upon expressions
as to what will happen in the future.”231 Therefore, “an action for deceit will not lie
for the unfulfillment of promises or the failure of future events to materialize as
predicted.”232 On multiple occasions, Mr. Middleton was overly enthusiastic and
unduly positive in relaying the progress on the development and availability of the
sought-after Theatrical Extension. But he was not then being presently deceitful.
230
Gross v. Sussex Inc., 630 A.2d 1156, 1161 (Md. Ct. Spec. App. 1993) (citations omitted).
231
Sass, 832 A.2d at 265 (quoting Levin v. Singer, 175 A.2d 423, 432 (Md. Ct. Spec. App. 1961)).
232
Appel v. Hupfield, 84 A.2d 94, 96 (Md. 1951).
-51-
The failure of future events to materialize as hoped and predicted does not amount
to fraud on Mr. Middleton’s part or, by extension, Hartford’s based on his
representations about the Theatrical Extension. No one could have foreseen the
COVID-19 pandemic’s sudden arrival and eventual effect; those events simply
outpaced the development and final negotiations needed for the addition of the
Theatrical Extension to NETWorks’ extant policies in March 2020.
NETworks likewise cannot meet its burden on the knowledge requirement.
The second element of fraud requires that an alleged fraudster must “know . . . that
his representation is false” or be “recklessly indifferent in the sense that he knows
that he lacks knowledge as to its truth or falsity.”233 A “reckless indifference to
truth” arises when one makes the representation even though he’s aware that he does
not know whether it is true or false. Put differently, one is recklessly indifferent to
the truth when he knows he lacks knowledge as to the truth or falsity of his
representation, but nonetheless makes that representation without caring about his
own lack of knowledge.234
Again, nowhere does NETworks identify facts demonstrating Hartford itself
knew its representations were “false.” Nor does the record show that Hartford had
a reckless indifference to the truth. In fact, it appears that Hartford was genuinely
233
Ellerin v. Fairfax Sav., F.S.B., 652 A.2d 1117, 1125 (Md. 1995).
234
11 M.L.E. Fraud and Negligent Misrepresentation § 10 (citing Hoffman v. Stamper, 867 A.2d
276, 300-01 (Md. 2005)).
-52-
working to develop a Theatrical Extension for the NETworks tours to use and
negotiating with NETworks about its future implementation. Once again here,
Mr. Middleton’s exuberant promises of imminent action on the Theatrical Extension
in this context are insufficient to demonstrate any knowledge of falsehood or
reckless indifference to truth on his part.
Nor can an intent to deceive be derived from the record. Maryland courts
require a “deliberate”235 fraudulent representation made with “an intention that
another should believe it to be true and act upon it.”236 That is, Maryland’s scienter
element requires not just a false statement but also an “evil motive or bad intent.”237
None is evident here.
Additionally, NETworks fails to show its reliance on any purported
misrepresentations. This necessary element of a fraud claim requires proof that “the
plaintiff relied on the misrepresentation and had the right to rely on it.”238 Reliance
at its core is the action or inaction of a party that results from the misrepresentation
of another.239 In determining if reliance is reasonable, a court is required to “view
235
VF Corp. v. Wrexham Aviation Corp., 715 A.2d 188, 193 (Md. 1998) (quoting Ellerin, 652
A.2d at 1124)).
236
Id. (quoting McAleer v. Horsey, 35 Md. 439, 453 (Md. 1872)).
237
Ellerin, 652 A.2d at 1124.
238
Hoffman, 867 A.2d at 292 (citations omitted).
239
Nails v. S & R, Inc., 639 A.2d 660, 669 (Md. 1994) (finding that reliance exists if “the
misrepresentation substantially induced the plaintiff to act”).
-53-
the act in its setting, which will include the implications and promptings of usage
and fair dealing.”240
But reliance on Hartford or Mr. Middleton’s representations complained-of
here can’t support the fraud claim NETworks champions. Those representations of
imminence were made only after the existing policies were entered into. The
NETworks tours bound coverage with Hartford in late March and early April 2019
for their 2019-2020 touring productions.241 At the time these policies were signed,
no Theatrical Extension even existed.242 Instead, Mr. Middleton had merely
conceptualized the idea and had shared it with Ms. Gladding.243 There is no
indication that the NETworks tours relied on any promises of later addition of the
as-yet-nonexistent Theatrical Extension when they entered into their 2019-2020
policies. As for the communications that occurred between September 2019 and
March 2020, there is no evidence that NETworks relied to their detriment on any of
the predictions made then. Nor could they—each NETworks tour was already
insured under existing policies and had yet to renew or sign new ones.
240
Giant Food v. Ice King, 536 A.2d 1182, 1186 (Md. Ct. Spec. App. 1988) (quoting Glanzer v.
Shepard, 135 N.E. 275, 276 (N.Y. 1922)).
241
See, e.g., Standard Policy; see also Hartford’s Open. Br. at 11. Those one-year policies took
effect months later—between late June and late October 2019. Id.242
See Email from Gladding to Middleton 05/21/19 (informing Middleton that the Theatrical
Extension would not be ready until “3rd quarter 2019”–i.e., in July at the earliest).
243
See id.; Emails between Middleton and Gladding May 2018.
-54-
NETworks attempts to use Mr. Middleton’s January 14, 2019 email to
NETworks stating that the Theatrical Extension would be added “automatically on
renewals and new shows” as evidence that they relied on his representations when
signing the policies for 2019-2020.244 But as that same email clarifies, “to provide
on existing shows it has to be done by endorsement.”245 The email does not purport
to show a misrepresentation on which the NETworks could have relied on to enter
into their 2019-2020 policies. Instead, it states that renewals and new shows would
include the not-yet-finalized Theatrical Extension but, absent a separate
endorsement by Hartford, the extension would not be part of policies that were in-
effect during its final development.
Finally, NETworks suffered no compensable injury. To constitute cognizable
fraud, “it must appear that the plaintiff actually suffered damage directly resulting
from the fraud.”246 Fraud without a resulting injury is not actionable.247 The
NETworks tours state that they forewent seeking out and signing other policies
containing no “direct physical loss” requirement, and therefore they suffered a
244
Email from Middleton to NETworks 01/14/19.
245
Id.246
11 M.L.E. Fraud and Negligent Misrepresentation § 14 (citing Empire Realty Co. Inc. v.
Fleisher, 305 A.2d 144, 147 (Md. 1973); Diener Enterprises, Inc. v. Miller, 371 A.2d 439, 441
(Md. Ct. Spec. App. 1977)).
247
Id. (citing Educ. Testing Serv. v. Stanley H. Kaplan, Educ. Ctr., Ltd., 965 F. Supp. 731, 740
(D. Md. 1997) (applying Maryland law)).
-55-
compensable injury based on the alleged misrepresentations. The record says
differently. The NETworks tours did not change their position on then-existing
coverage—they just didn’t get the extra coverage from Hartford they hoped for.
Summary judgment for Hartford on the fraud claim (Count IV) is
GRANTED.
E. HARTFORD IS ENTITLED TO SUMMARY JUDGMENT ON NETWORKS CLAIM
FOR DECLARATORY RELIEF SEEKING MODIFICATION OF THEIR POLICIES.
Lastly, Hartford moves for summary judgment on the NETworks tours’
request for a declaration that each show’s Standard Policy includes the Theatrical
Extension in accord with Hartford’s purported express and implied
representations.248
Delaware’s Declaratory Judgment Act empowers this Court to “declare rights,
status and other legal relations whether or not further relief is or could be
claimed.”249 But “[n]ot all disputes . . . are appropriate for [a declaration] when the
parties request it.”250 The Court “has discretion to decline declaratory judgment
jurisdiction, and will do so where a proposed declaration would not advance the
248
Compl. ¶¶ 199-205.
249
DEL. CODE ANN. tit. 10, § 6501-13 (2022). The “purpose of the Declaratory Judgment Act is
to enable the courts to adjudicate a controversy prior to the time when a remedy is traditionally
available and, thus, to advance the stage at which a matter is traditionally justiciable.” Reylek v.
Albence, 2023 WL 4633411, at *6 (Del. Super. Ct. July 19, 2023) (quoting Diebold Computer
Leasing, Inc. v. Commercial Credit Corp., 267 A.2d 586, 591–92 (Del. 1970)) (cleaned up).
250
Intermec IP Corp. v. TransCore, LP, 2021 WL 3620435, at *25 (Del. Super. Ct. Aug. 16, 2021)
(quoting Town of Cheswold v. Cent. Del. Bus. Park, 188 A.3d 810, 816 (Del. 2018)).
-56-
litigation, but rather, would waste judicial resources.”251
Prior to entertaining a declaratory judgment action, the Court must first make
a threshold determination that an “actual controversy” exists.252 An “actual
controversy” has four elements:
(1) It must be a controversy involving the rights or other legal
relations of the party seeking declaratory relief; (2) it must be a
controversy in which the claim of right or other legal interest is
asserted against one who has an interest in contesting the claim;
(3) the controversy must be between parties whose interests are
real and adverse; (4) the issue involved in the controversy must
be ripe for judicial determination.253
With respect to the second element, “[a]n actual controversy which justifies resort
to the declaratory judgment act exists where one side makes a claim of a present,
specific right and the other side makes an equally definite claim to the contrary.”254
The fourth requires that a controversy be “ripe.”255 To make a ripeness
determination, Delaware courts “weigh the reasons ‘for not rendering a hypothetical
opinion . . . against the benefits to be derived from the rendering of a declaratory
251
Id. (citations omitted).
252
Reylek, 2023 WL 4633411, at *6 (quoting XL Specialty Ins. Co. v. WMI Liquidating Tr., 93
A.3d 1208, 1216 (Del. 2014)).
253
Id. (citations omitted).
254
In re COVID-Related Restrictions on Religious Servs., 302 A.3d 464, 494 (Del. Super. Ct.
2023) (quoting Clemente v. Greyhound Corp., 155 A.2d 316, 320 (Del. Super. Ct. 1959)).
255
Id.-57-
judgment.’”256 Such a balancing necessitates “the exercise of judicial discretion
which should turn importantly upon a practical evaluation of the circumstances
present.”257 Put simply, “for a case to be ripe, the facts must be sufficiently
developed for the court to resolve the matter.”258 And “if the Court would be forced
to construct hypothetical factual situations on which it could then rule then the
ripeness requirement is not met.”259
For two reasons, the Court should not and cannot render the declaration sought
here—that is, add the Theatrical Extension (with premiums and limits the tours never
pin down) to each NETworks tours’ show’s then-extant Standard Policy.
First, no actual controversy exists surrounding the Standard Policy’s
modification or the method to effect such. The Standard Policy includes a
“Changes” provision that states that its “terms can be amended or waived only by
endorsement issued by [Hartford] and made a part of this policy.”260 Hartford points
to the “Changes” provision’s endorsement requirement as conclusive evidence that
256
Id. (quoting The O’Brien Corp. v. Hunt-Wesson, Inc., 1999 WL 126996, at *4 (Del. Ch. Feb.
25, 1999) (quoting Stroud v. Milliken Enters., Inc., 552 A.2d 476, 480 (Del. 1989)).
257
Id. (internal quotations and citations omitted).
258
Id. Of course, with the other claims at play and the resolution of those claims above, there
might also be an “overripeness” concern lurking in the background of this particular declaratory
judgment proceeding. See generally CRE Niagara Holdings, LLC v. Resorts Grp., Inc., 2023 WL
2625838, at *9-12 (Del. Super. Ct. Mar. 24, 2023) (explaining and engaging the overripeness
analysis employed by Delaware courts).
259
In re COVID-Related Restrictions, 302 A.3d at 494 (cleaned up).
260
Standard Policy (Common Policy Provisions) § B.
-58-
the Standard Policy was never modified to include the Theatrical Extension. 261
In its response, the NETworks tours appear to concede the issue. They parry that
“[t]he question is not whether the policies contained the Theatrical Extension, but
whether [Mr.] Middleton represented that Hartford would add it to them.”262
NETworks sidesteps the “Changes” provision and the endorsement requirement. So,
the NETworks tours have not established that there is an actual controversy as to
whether the Standard Policy was modified to include the Theatrical Extension. In
fact, the NETworks tours have confessed the opposite is true but hopes the Court
will inflict such modification outside the policy’s clear terms.
Second, there are far too many uncertainties for the court to provide any sort
of declaratory relief. To declare that the Theatrical Extension is a part of the
Standard Policy, the Court would need to determine for each different show, inter
alia: (1) the amount of premiums to be paid; (2) when in the life of the policy the
Theatrical Extension took force; and, (3) the per occurrence limits afforded by the
extension. As a prudential matter, the Court should not exercise its discretion to
make the nebulous declaration the tours seek when there are so many very real gaps
to fill. In declaratory judgment terms, the facts in question are not sufficiently
developed and the modification question is not ripe for judicial determination. In
261
Hartford’s Open. Br. at 45-46.
262
Tours’ Ans. Br. at 40.
-59-
more practical terms, the tours’ ask amounts to that which a Delaware court eschews
without fail—using litigation and the Court to rewrite a deal.263
Summary judgment on Count V asking for just such relief via the Declaratory
Judgment Act is GRANTED.
V. CONCLUSION
In March 2020, COVID-19 brought the world to a screeching halt. Its effects
on our modern living were unprecedented. And its disruption cost most industries—
including the entertainment industry—dearly. While some then-extant forms of
business-income disruption coverage were broad enough to cover some or all losses,
those in this case were not. A creative mix of policy language and proffered
scientific evidence does not change the fact that 14 of the 15 insurance contracts here
did not cover the losses incurred with the shuttering occasioned by COVID-19’s
grip. And the Court cannot engage its discretionary authority to declare into those
14 policies that which just never made it therein. As to the fifteenth, that policy’s
language covered that show’s interruption due to the COVID-19 shutdown from the
interruption’s start to finish, not in the segmented way that production now posits.
263
See generally Nemec v. Shrader, 991 A.2d 1120, 1126 (Del. 2010) (Delaware courts cannot
rewrite a contract to appease a party who later wishes a better deal had been struck); Nationwide
Emerging Managers, LLC v. Northpointe Hldgs., LLC, 112 A.3d 878, 881 (Del. 2015) (“Delaware
law requires that [a] contract’s express terms be honored, and prevents a party who has after-the-
fact regrets from . . . obtain[ing] in court what it could not get at the bargaining table.”) (cleaned
up).
-60-
The insurer here engaged in no misdoings when it provided the coverage the
Tours’ procured or when it made the now-contested coverage decisions.
For these reasons—as they are more fully explicated above—Hartford is
GRANTED summary judgment on each of the seven counts leveled against it.
IT IS SO ORDERED.
Paul R. Wallace, Judge
Original to Prothonotary
cc: All counsel via File & Serve
-61-