The opinion of the court was delivered by: Judge Vanaskie
Plaintiff Brethren Mutual Insurance Company ("Brethren Mutual") filed this declaratory judgment action against Defendants Angela and Nelson Velez ("the Velezes"), Blue Mountain Lake Club and Blue Mountain Lake Utilities Association ("Blue Mountain Lake"), and Ashley Savinon, seeking a declaration that it is not obligated to provide indemnity coverage and to defend the Velezes in an underlying state court action.*fn1 Presently before the Court is Brethren Mutual's Motion for Summary Judgment. (Dkt. Entry 22.) Because Brethren Mutual has failed to tender sufficient evidence demonstrating that the Velezes' late notice of the occurrence of the underlying accident and subsequent state court action resulted in actual prejudice, Plaintiff's Motion for Summary Judgment will be denied.
In May of 2002, a limb from a dead tree located on the Velezes' property in the Blue Mountain Lake Community fell on Ms. Savinon. (Pl.'s Statement of Material Facts ("SMF"), Dkt. Entry 24, ¶ 9.) The tree limb struck her in the forehead, causing her to sustain a laceration of her head. Ms. Savinon was five years old at the time and required plastic surgery to redress the lacerations and scarring that resulted from the accident. (Pl.'s Ex. A, Dkt. Entry 1-3, at 3.)
On February 1, 2003, Ms. Savinon filed a state court action against Blue Mountain Lake, the homeowners association operating the Blue Mountain Lake planned community. (Pl.'s SMF, at ¶¶ 3 & 5.) The Velezes were later served a Joinder Complaint on May 27, 2003, bringing them into the action.*fn2 (Defs.' Answer to Pl.'s Statement of Material Facts ("SMF"), Dkt. Entry 27, ¶ 5; Pl.'s Ex. A, at 3.)
At the time of Ms. Savinon's accident, the Velezes maintained a homeowners insurance policy with Brethren Mutual. (Pl.'s Ex. A, Dkt. Entry 1-3, at 2; Pl.'s SMF, at ¶ 19.) The insurance policy, in pertinent part, provides:
In the case of an accident or "occurrence," the "insured" will perform the following duties that apply. You will help us by seeing that these duties are performed:
a. Give written notice to us or our agent as soon as is practical, which sets forth:
(1) The identity of the policy and "insured";
(2) Reasonably available information on the time, place and circumstances of the accident or "occurrence"; and
(3) Name and addresses of any claimants and witnesses; b. Promptly forward to us every notice, demand, summons or other process relating to the accident or "occurrence"; c. At our request, help us:
(2) To enforce any right of contribution or indemnity against any person or organization who may ...