Estates have not produced any affidavits or deposition testimony supporting their assertion that Merchants Mutual's delay in asserting its policy defenses prejudiced the Artises. This lack of evidence alone is enough to defeat the Estates' Motion.
Notwithstanding the lack of evidence to support their Motion for Summary Judgment, the Estates argue that the Artises suffered sufficient prejudice to warrant an estoppel. They argue that the Artises acted in detrimental reliance on Merchants' December 6, 1989, letter which warned the Artises that Merchants would not be liable for any settlement negotiated by their son-in-law, William Smith. The letter also ordered them to cease the settlement negotiations. The Estates argue that the Artises relied on this letter and Merchants' representation of coverage by restraining William Smith from settling the Estates' claims and by relinquishing total management of the defense of the Estates' wrongful death actions to Merchants Mutual.
The Estates' claim that the Artises were prejudiced rings hollow in light of the fact that after Merchants withdrew from the case, the Artises resumed negotiations with the Estates and, on the advice of their son-in-law William Smith, reached an agreement on January 4, 1993, in which the Estates entered into a consent decree whereby a judgment for $ 1.6 million
was entered against the Artises and in favor of the Estates. This was a non-recourse settlement; the Estates agreed not to move against the Artises' personal assets, home, or life savings in exchange for the Artises assigning their rights against Merchants Mutual to the Estates. This settlement was approved by the court on January 5, 1993.
The record shows that the Artises' assets remain protected, and that they were provided with a complete and competent defense by the Margolis law firm before Merchants Mutual ordered the firm to withdraw. The Estates have failed to demonstrate that the Artises suffered any prejudice, and thus Merchants cannot be estopped from denying coverage. Accordingly, the Defendant Estates Cross-Motion for Summary Judgment is denied.
AND NOW, this 21st day of November, 1995, upon consideration of plaintiff, Merchants Mutual Insurance Company's Motion for Summary Judgment, and the Response of Intervenors, Julia Jones, et al. thereto, and upon consideration of the Cross-Motion for Summary Judgment filed by Intervenors, Julia Jones, et al., and Merchants Mutual's Response thereto, it is hereby ORDERED as follows:
1. Merchants Mutual's Motion for Summary Judgment is GRANTED ; and
2. The Cross-Motion for Summary Judgment of Intervenors, Julia Jones, et al., is DENIED.
BY THE COURT:
Joseph L. McGlynn, Jr., J.