JOHN TINDER, District Judge
1. Background
The facts in this matter are undisputed. On April 16, 2001, a motor vehicle accident occurred in Vincennes, Indiana. An eighteen-wheeled semi-truck, . Abdeljalil collided with two automobiles, killing the two drivers, Heather Bird and Delores Snyder. The accident spawned litigation in the form of two lawsuits brought in Indiana state courts. One lawsuit was brought by the fiancee of Ms. Bird and one was brought by her estate. The lawsuits were filed against NYK Line and NYK Line (North America), Inc. (hereinafter collectively known as "NYK"), which owned the truck chassis and container being pulled by the tractor, Mr. Yacoub D. Abdeljalil, the truck driver, and his employer, the motor carrier P.B.I. Industries, Inc. ("PBI"). The Defendants removed the cases from state court and Defendant NYK filed cross-claims for indemnity against PBI. Plaintiffs' claims have been settled in both lawsuits and all that remains of the litigation is NYK's cross-claim for indemnity in the above captioned matter.
Both NYK and PBI were signatories to a Uniform Intermodal Interchange and Facilities Access Agreement ("Interchange Agreement") which governed the interchange of the chassis and container owned by NYK and short-termed leased to PBI. According to the Interchange Agreement, PBI was the Motor Carrier and NYK was the Equipment Owner. The relevant provisions of the Interchange Agreement provide as follows:
F. Liability, Indemnity and Insurance
. . .
4. Indemnity: MOTOR CARRIER AGREES TO DEFEND, HOLD HARMLESS AND FULLY INDEMNIFY THE INDEMNITIES, AGAINST ANY AND ALL CLAIMS, SUITS, LOSS, DAMAGE, OR LIABILITY, FOR BODILY INJURY, DEATH AND/OR PROPERTY DAMAGE (INCLUDING REASONABLE ATTORNEY FEES AND COSTS INCURRED IN THE ENFORCEMENT OF THIS AGREEMENT) ARISING OUT OF OR RELATED TO THE MOTOR CARRIER'S USE OR MAINTENANCE OF THE EQUIPMENT DURING AN INTERCHANGE PERIOD; THE PERFORMANCE OF THIS AGREEMENT; AND/OR PRESENCE ON THE FACILITY OPERATOR'S PREMISES.
5. Notice of Filed Claims:
a. Motor Carrier shall promptly notify Provider, Equipment Owner and/or Facility Operator of any claim arising, against Motor
Carrier under Section F.4, and shall also advise Provider, Equipment Owner and/or Facility Operator at the time of the legal defense undertaken regarding that claim. Failure of the Motor Carrier to timely to provide such legal defense, and the undertaking of that legal defense by Provider, Equipment Owner and/or Facility Operator to protect such Party's respective interests, shall result in the Motor Carrier's bearing such reasonable attorney fees and costs incurred by the Provider, Equipment Owner and/or Facility Operator in providing such legal defense.
b. Provider, Equipment Owner and/or Facility Operator shall promptly notify Motor Carrier of any claim arising under Section F.4, which Provider, Equipment Owner and/or Facility Operator receives. Provider, Equipment Owner and/or Facility Operator shall not undertake any legal defense of or incur any legal expenses pertaining to the claims submitted to the Motor Carrier, unless, Motor Carrier fails to timely do so as provided in Section 5.a.
The Interchange Agreement also required the Motor Carrier to provide $1,000,000 commercial liability and commercial automobile insurance coverage to fulfill its legal liabilities under the agreement.
The family of Ms. Bird hired attorneys whose investigator contacted both NYK's counsel and PBI in April 2001. PBI and its insurer, Hanover Insurance Company ("Hanover") appointed representatives who investigated the accident beginning in April 2001, though it is unclear whether NYK was aware of the investigation being conducted on behalf of PBI. On May 1, 2001, legal counsel for NYK sent a letter to PBI which included a brief description of the accident and the circumstances of the chassis and container interchange. The letter described the fact that the Interchange Agreement applied to the relationship between NYK and PBI and then went on to tender the defense of what the letter describes as "the anticipated claims" to PBI. More specifically in that regard, the letter states as follows:
According to information presently known, two cars were crushed beneath the big rig driven by Abdeljalil. The drivers of the two cars, Delores Snyder and Heather Bird reportedly both died at the accident scene. Although no lawsuit has been filed yet, an investigator acting on behalf of the deceased parties has been gathering information. We anticipate that actions on behalf of the decedents will be filed, and we now tender those anticipated claims to PBI.
. . .
Thus, it is indisputable that, under the terms of the UIIA [Interchange Agreement], PBI is obligated to provide a defense to NYK and to reimburse NYK for its attorney fees and costs incurred in the captioned matter. It is also equally clear that the indemnity terms of the UIIA were in force at the time of the accident because the equipment was in the possession of PBI at the time of the accident. Accordingly, NYK hereby tenders defense of and liability with respect to the referenced matter to PBI. Pursuant to PBI's contractual indemnity obligations to NYK, demand is made upon PBI to pay the attorney fees and costs incurred on behalf of NYK with respect to the captioned matter.
Please respond to this letter promptly.
In addition to this letter, on May 1, 2001, NYK counsel sent a similar letter to PBI's insurer, Hanover. On May 15, 2001, NYK sent a second letter tendering the defense of any claim made on behalf of the owner of the contents which were destroyed in the accident. In addition to the letter sent to PBI on that date, a similar letter was sent to its cargo insurer, Seneca Insurance. In June 2001 counsel for NYK sent an additional tender letter to the insurer of Abdeljalil, Empire Fire Marine Insurance Company. Only Seneca Insurance, PBI's cargo insurer, responded to any of these letters. Neither NYK or its counsel received a response to the letters sent to PBI and Hanover tendering the "anticipated claims".
Subsequent to being contacted by the investigator who hired by the attorney for one of the deceased, NYK retained legal counsel and incurred various fees and expenses associated with investigating the accident, securing evidence and retaining an expert. Not until February 2002 was NYK served with the Complaint and summons on behalf of the two Plaintiffs in this consolidated action. After receiving service of the two Complaints on February 26, 2002, counsel for NYK notified both PBI and Hanover of the receipt of the Complaint and summons by letters dated March 6, 2002. On March 18, 2002, NYK filed an Answer to each of the Complaints and also filed Cross-claims against PBI for indemnity. On March 20, 2002, the cases were removed to federal court. On April 17, 2002, counsel for NYK was contacted by legal counsel who had appeared for PBI and advised that he had been instructed by Hanover to appear for NYK as well and defend the claims on behalf of all defendants. A letter confirming this acceptance of NYK's tender was sent on April 19, 2002.
Though PBI states in its reply brief that NYK unilaterally incurred "extensive" costs both before communicating with PBI in May of 2001 as well as after that communication, it has not argued that the fees and costs being sought, as detailed in the declarations of Sam Delich submitted by NYK, are unreasonable. It argues only that they were inappropriately incurred either prior to notification of a claim or after an unfounded refusal to accept a defense provided by counsel acting for both PBI and NYK.
However, counsel for NYK believed that there was a conflict inherent in counsel for PBI representing NYK in the litigation. By letter dated May 13, 2002, counsel for NYK advised that NYK would not accept PBI's attorney as its litigation counsel, more specifically stating as follows:
Under the circumstances, we view the concerned accident with the multiple deaths as presenting damages exposures in excess of P.B. Industries, Inc.'s $1,000,000 policy limits; as such, the same attorney cannot represent P.B. Industries, Inc. and the NYK entities due to the inherent conflict, given the NYK entities' indemnity rights against P.B. Industries, Inc. to date for attorney fees and costs and in the future for fees and costs and any resulting liabilities to the various plaintiffs and Ms. Snyder's family, once they have filed suit.
. . .
Should P.B. Industries, Inc. have significant excess insurance with a solvent insurer, with an A-rating or better, then a common representation of P.B. Industries, Inc. and NYK entities, with a waiver of conflicts can be considered. Please advise if P.B. Industries, Inc. does have excess insurance.
NYK never received a response to its letter regarding the issues of excess coverage and common representation. It did receive notification in November 2002 that Counsel for PBI had successfully pursued settlement negotiations on behalf of PBI and NYK and reached settlements with both of the Plaintiffs in this consolidated action and Ms. Snyder's estate, which had yet to file suit, for an amount within the coverage limits of its insurance . At that time, Counsel for PBI also asked that NYK drop its cross-claim for indemnity. However, NYK did not drop its indemnity cross-claim as PBI refused to compensate NYK for the legal fees and expenses it incurred. Instead, PBI and NYK have each filed a summary judgment motion, asking this court to fulfill its role as final arbiter of whether or not PBI is responsible for the fees and costs incurred by NYK.
2. Analysis
PBI filed its summary judgment motion first. It argues that it should not be held responsible for the fees and costs incurred by NYK prior to NYK sending PBI the letter of March 6, 2002 notifying PBI that the lawsuits had been filed. PBI opines that the May 1, 2001 letters did not notify it of or tender to it "claims". Rather, it argues, the letters reported "potential" or "anticipated" claims. According to PBI, the Interchange Agreement clearly prohibits NYK from incurring legal expenses prior to notification of a claim. PBI says that notification did not come until March of 2002 when it was forwarded copies of the lawsuits filed in state court.
In addition, PBI argues that after it received the March 2002 notice, it promptly and appropriately accepted the tender of defense by authorizing its local counsel to defend the lawsuits on behalf of NYK as well as PBI. Because NYK had no legitimate basis to refuse this arrangement, PBI maintains that none of the costs and expenses incurred by NYK after it sent its March 2002 notification of lawsuits to PBI should be recovered either.
NYK argues that the May 1, 2001 letters constitute an appropriate notification to PBI of the invocation of its indemnity obligations as anticipated by the Interchange Agreement. It maintains that the Interchange Agreement does not preclude NYK's effective tender of its defense prior to plaintiff's assertion of a "claim" or filing of a lawsuit. The receipt by NYK of a letter from an investigator seeking information and NYK's insurance policy is sufficient for it to assume that this double fatality accident is going to generate a "claim" for which it is entitled to a defense both under the Interchange Agreement from PBI and as an additional insured of Hanover. According to NYK, PBI and Hanover's failure to respond in any manner to NYK's May 1, 2001 letters (or its subsequent letter on cargo losses) prevents it from crying foul now with respect to NYK's efforts to formulate a defense to any claims against it arising out of the accident.
Finally, NYK argues that the fact that the accident resulted in two deaths made it reasonable for NYK to conclude that total claims could well exceed the $1,000,000 policy limits of the insurance PBI was responsible for providing, and that in light of the significant costs it had already incurred in defending itself, NYK clearly could not be made to accept a defense premised on representation by an attorney who also represented the very party it was claiming indemnity from. Therefore, NYK posits that it appropriately kept its own legal counsel to see to its defense.
To assist the court in wading through these arguments, NYK is kind enough to point out that the Interchange Agreement contains a provision which provides that its interpretation be governed by Maryland law. PBI does not take exception. However, other than the decision mentioned in a footnote related to whether or not NYK is entitled to recover that portion of the legal fees that are associated with the pursuit of its own cross claim, neither party bothered to provide the court with any authority from Maryland in close to sixty pages of briefing. Nor do they inform the court that a competent search of Maryland law has been conducted without substantive result. Instead, the court is left to determine on its own if the Maryland courts have offered any analysis that may be helpful in sorting through the issues presented. As it turns out, the highest court in Maryland has rendered a decision which not only has significant value when applying it to the circumstances here, but the decision also sets Maryland apart from the vast majority of states in determining when the duty to defend attaches. See, Sherwood Brands, Inc. v. Hartford Accident and Indemnity Co., 698 A.2d 1078 (Md. 1997). Regardless, prior to examining the Maryland court's analysis, this court must address certain preliminary issues.
First, although the Interchange Agreement is not an insurance contract or policy, per se, it is an agreement pursuant to which PBI agreed to indemnify NYK, defend NYK and procure insurance which would include NYK as an additional insured for claims, suits, losses, damages or liabilities for bodily injury or death arising out of PBI's use of the chassis or container owned by NYK. These obligations and the terms of art invoked therein are typically part of an insurance contract with an insurance company. Accordingly, the scope of the various obligations has been examined and interpreted by courts and agencies as a part of a body of "insurance law". Therefore, reference to decisions involving these same obligations as they arise in insurance policies is appropriate, as the clear intent of Section F of the Interchange Agreement is to sort through the insurance related obligations of the signatories. Indeed, Section F is titled "Liability, Indemnity and Insurance" and as provider of the indemnity, short of passing that obligation off to an insurance company, PBI is for all practical purposes an insurer and NYK the insured.
Hanover is not a party to this litigation. Its policy of insurance is not a part of the record. So, though it would seem logical that as an additional insured NYK might have a direct claim against Hanover for these same costs of defense and might have even more appropriate policy language to rely on regarding notice of "occurrences" or "accidents" as opposed to "claims", NYK gains no advantage or inference here as a result of its notifying Hanover in addition to PBI.
Second, PBI's failure to respond to NYK's tender of defense letter of May 1, 2001 can only be interpreted as a denial of the tender. There is no question that the letter sought to have PBI, agree to step in and defend NYK against these "anticipated claims" from the estates of the decedents. When informed by the insured party of the circumstances involved, silence in response is equal to a denial of the request being made. See, Marathon Ashland Pipe Line LLC v. Maryland Casualty Co., 243 F.3d 1232, 1246-47 (10th Cir. 2001); United States Fidelity and Guaranty Co. v. National Paving and Contracting Co., 178 A.2d 872, 875 (Md. 1962). Whether or not PBI had a sound basis for that denial, such as whether or not it was obliged to defend short of a "matured claim", is another question. However, it can not be said that PBI's silence was anything other than a denial.
Turning back to the Sherwood Brands case, which sets Maryland apart from most jurisdictions, the Court of Appeals of Maryland has determined that the duty to defend arises upon the happening of the insured event, not upon notification of the insured event. Sherwood Brands, 698 A.2d at 1085. The court recognizes that the vast majority of jurisdictions and commentators have opined that the duty to defend can not attach until the party with the duty is informed of the event for which indemnity or a defense may be required. Id. at 1084. However, the Court of Appeals of Maryland finds this to be inconsistent with the manner in which Maryland treats the obligation of an insured to notify and what it believes to be the general rule that the "right to defend" attaches as soon as the insured event occurs. Id. at 1083-84. More specifically the court states:
Where the duty of notification is regarded as a condition precedent to the insurer's duty to defend, a holding that the duty to defend does not arise until the notice is given is logical; it rests on the very nature of a condition precedent. Where, as in Maryland, however, the duty to notify is merely a covenant that, absent a showing of prejudice, does not excuse the insurer from complying with its duty to defend, the logic of such a holding becomes significantly attenuated, for it creates a time gap between the insurer's right to control the defense and its duty to provide one that has no legal underpinning.
Id. at 1084. It then goes on to conclude that the duty to defend arises when an insured claim is filed or insured occurrence happens, but that such a duty is not breached until the insurer is apprised of the claim or occurrence and, without legal justification, fails to undertake the defense.
Id. at 1085.
The next question is how such a conclusion affects the insurer's responsibility with regard to pre-notice costs incurred by the insured. The Sherwood Brands decision addresses this issue as well. Recognizing that the insured's covenant not to incur litigation or defense expenses without the consent of the insurer, compliments the covenant of the insured to notify the insurer, the court still concludes that if the occurrence at issue falls within the indemnity coverage the insurer will be responsible for pre-notice expenses, because it would be in no worse position than it would have been had the notice been provided earlier and the defense assumed at that point. Id. at 1085-86. This, of course, assumes that the expenses incurred were reasonable and necessary, a point which is not challenged by PBI in this litigation.
Following the analysis of the Sherwood Brands decision can lead to no conclusion other than that PBI is responsible for all of NYK's expenses prior to the acceptance of the tender. However, this court recognizes that despite the similarity of positions between PBI and an insurance company, there is generally a great deal more detail included within an insurance policy, with respect to the covenants, rights and obligations assumed, than there was in the Interchange Agreement. Accordingly, though this court believes that based on Sherwood Brands, Maryland's highest court would find an obligation on the part of PBI to pay for the pre-notice expenses incurred by NYK, regardless of when notice was given, this court also believes that even without the Sherwood Brands decision, NYK's letter of May 1, 2001 was sufficient to trigger PBI's duty to defend and, hence, pay for the costs associated therewith.
In analyzing NYK's May 1, 2001 tender letter, PBI takes great pain in attempting to distinguish "claims" from "anticipated claims". According to PBI, a claim is a demand for money or property or some specific remedy, which is not what was described in the letter. Therefore, it argues, at the time NYK provided its initial notice of "anticipated claims" PBI's duty to defend was not yet triggered. The court is less than impressed with this analysis for two reasons. First, in PBI's own initial brief, it spends a few pages discussing and citing authority for the general proposition that when a party to a contract assumes an obligation to do certain things, such as defend and indemnify another party, the law implies a corresponding obligation on the part of the other party to allow him all reasonable opportunity to perform that obligation. (PBI Br. in Supp. of Summ. J. at 5-8). There can be no question that what NYK did in promptly notifying PBI of the double death accident and inquiry engaged in by an investigator for counsel for one of the decedent's estate, was to attempt to give PBI every reasonable opportunity to investigate and perform its obligation under the contract. PBI ignored that request, without so much as an acknowledgment back to NYK of the incident or PBI's potential obligation.
Second, paragraph F.4. of the Interchange Agreement does not limit PBI's obligation to defend to the category of "claims". It states that the motor carrier will defend "against any and all claims, suits, loss, damage or liability, for bodily injury, death and/or property damage" arising out of the Motor Carrier's use of the equipment owned by NYK. This broad list of what PBI was agreeing to defend against, suggests that NYK's receipt of notice that an attorney had been retained and an investigator was looking into NYK's involvement would foretell the likelihood of a claim and certainly fall under the category, generally, of actions taken on behalf of that decedent's estate which would challenge NYK's liability "for bodily injury, death and/or property damage."
There is, perhaps, another way to examine the issue as well. It would be hard for this court, or any rational fact finder, to believe that PBI or any other subscribing motor carrier would have balked at a provision in the Interchange Agreement which would have required the equipment owner to notify the motor carrier of any occurrence which could potentially invoke the indemnity obligation. Generally, such provisions are a part of insurance contracts so as to provide a benefit to the insurer of knowing as quickly as possible that there may be a lawsuit coming. And, as any competent counsel or private investigator would agree, the quicker an investigation is started, the more likely it is to obtain uncompromised results. In this instance, because the Interchange Agreement lacked such an obligation to notify PBI of an "occurrence" or "accident," PBI seeks to take advantage by arguing that, the notice of May 1, 2001 notwithstanding, it was left in a less than advantageous position because it was only notified of the existence of a "claim" after the lawsuit was received by NYK. In short, this court cannot countenance PBI's attempt to characterize NYK's notification efforts as somehow prejudicial to PBI.
PBI acknowledges that NYK had communications with counsel for one of the decedent's estate, subsequent to the May 1, 2001 letter, which involved discussions of a claim by the estate and, if notice of same had been provided to PBI, may have constituted the type of "claim" which PBI believes would have triggered its obligation to defend.
NYK's efforts to investigate and defend itself following contact from the investigator for one of the plaintiff's attorneys were not contrary to the apparent intent of the Interchange Agreement, to vest control of the defense in the motor carrier upon notification of an event that could trigger indemnity. Had PBI responded to NYK's letter with an indication that it would be investigating and responding shortly or that it would accept the tender under a reservation, perhaps PBI would have a basis to expect that NYK would not take immediate steps to investigate and prepare its defense. But it did not respond in that fashion. It did not respond at all. And, since investigation is encompassed in the duty to defend, Eric Mills Holmes, Holmes' Appleman on Insurance 2d § 136.1 (2003), and PBI does not challenge the reasonableness of the costs incurred by NYK, PBI is being asked to pick up the costs for what it ultimately was responsible for anyway. PBI is responsible for the costs incurred by NYK up to the point that PBI's local counsel contacted NYK and notified it that he would be taking over the defense of NYK.
This brings the court to the next issue. Was there an obligation on the part of PBI to provide NYK with separate legal counsel to defend the claims once it did accept the tender of defense. Since both Maryland and Indiana law provide that an insured may select its own counsel if a conflict of interest exists between an insured, NYK in this instance, and insurer, PBI in this instance, exists in connection with the defense of a lawsuit against the insured, Roussos v. Allstate Insurance Co., 655 A.2d 40, 44 (Md.App. 1995); State Farm Mutual Auto Insurance Co. v. Glasgow, 478 N.E. 2d 918, 923 (Ind.App. 1985), there is no need to address the preliminary question of whether Maryland or Indiana law should apply to a conflict situation. The question is simply whether or not there was a conflict.
Again, the fact that Hanover is not a party to the lawsuit or the Interchange Agreement may cause some initial confusion, since it apparently was the entity which actually told local counsel representing PBI to include NYK in the defense. However, Hanover was simply standing in the shoes of PBI when that offer was made and PBI had the contractual indemnity obligation at issue here.
NYK continues to maintain that there was a conflict at the time it was contacted by local counsel for PBI with an acceptance of the tender, because NYK had an indemnity claim against PBI for liability and costs and the damage potential of all claims exceeded the $1,000,000 primary policy of insurance provided by Hanover. On May 13, 2002 counsel for NYK sent a letter to PBI's local counsel describing these alleged conflicts, indicating NYK would not waive the conflicts and stating that it would consider allowing joint representation if PBI could demonstrate that it had significant excess insurance coverage with a solvent carrier. NYK received no response to that letter, but learned several months later that a settlement had been reached within the Hanover policy limits with all claimants on behalf of all defendants. However, NYK incurred its own defense costs between the May 13, 2002 letter and the final settlement reached in November of that year.
The fact that NYK had a claim for indemnity against PBI does not, in and of itself, create a conflict. Because PBI was providing indemnity and agreed to defend NYK as well, it was, in essence, an insurer. To find that NYK's claim for indemnity created a conflict would be the same as saying that an insured and an insurer have an immediate conflict as soon as there is the potential that the insurer will be required to indemnify the insured. No court has or would make such a determination. Any dispute with regard to whether or not PBI owed NYK for the costs it had incurred to that point was completely independent of any issue with regard to liability on the underlying claims.
Finally, NYK offers no authority for the proposition that a conflict existed because the third party's damages could have exceeded the limits of Hanover's policy and therefore NYK was entitled to separate counsel. In actuality, pursuant to the Interchange Agreement, PBI agreed to indemnify NYK without limitation. Hanover's policy limits are immaterial. There is no suggestion in the record that PBI was incapable of paying any judgment or settlement. In addition, the only allegation in the complaint that pertained to NYK was that it was the owner of the chassis and container being hauled by PBI's driver. With no allegation such as negligent maintenance or negligent entrustment against NYK as the owner, that could have put PBI and NYK at odds, there was no conflict in positions and PBI was going to be responsible for any damages if plaintiffs were successful. Johnson v. Motors Dispatch, Inc., 360 N.E.2d 224 (Ind.App. 1977). No conflict existed and NYK had no right to demand that PBI continue to pay the costs associated with NYK's San Francisco and local counsel.
3. Damages
Since the court has determined that NYK is entitled to its defense costs up to the point that its tender was accepted, the next issue that must be addressed is a determination of damages. That determination would be purely mathematical with respect to defense fees and costs as there is no challenge to the reasonableness of work done or any other content of the invoices submitted by NYK in support of its motion. However, the Interchange Agreement also provides for the recovery of reasonable attorney fees associated with enforcement of the agreement. In that regard, the court is left with the task of determining which legal tasks were performed as a part of the defense of NYK after April 17, 2002, and which were necessary in order to enforce the contract.
April 17, 2002 was the date that NYK's counsel admits that he was contacted by PBI's local counsel and told that a defense would be provided.
Rather than assume that it can parse through the various invoice entries and determine with certainty what work applied to prosecution of the cross-claim, the court elects to have NYK clarify that. PBI should also have an opportunity either to agree or challenge NYK's contention with regard to how it separates out its costs for prosecution as opposed to defense following April 17, 2002. Therefore, the court will wait to enter the amount of judgment until it reviews any supplemental submissions on the fees associated with prosecuting NYK's cross-claim or the parties stipulate as to the amount of fees at issue.
4. Conclusion
"What we have here is . . . failure to communicate." Strother Martin, Cool Hand Luke (Warner Brothers 1967). There was no reason for PBI not to respond in some fashion to the early notice and tender provided by NYK in May of 2001. A discussion at that point would have likely resulted in some type of resolution of how the defense of NYK and PBI would be handled. NYK prevails on its claim for costs and fees in essence because PBI failed to communicate. However, live by the sword, die by the sword and when PBI (or its agent) did finally respond and offer a defense, NYK did no more than send a letter, through its attorney, saying that it would not waive a perceived conflict and would continue to employ both its San Francisco and local counsels. While business courtesy would suggest that PBI could have continued the exchange in order to attempt to resolve the issue, it did not, but either did NYK and it was NYK that had its continued legal fees at risk in light of the acceptance of its tender that was communicated earlier.
For all of the reasons set forth in this entry, NYK's Motion for Summary Judgment will be GRANTED IN PART. NYK is entitled to judgment in an amount equal to its defense costs and fees through April 17, 2002 plus the costs and fees of prosecuting its cross-claim. That amount can not be determined with certainty from the submissions currently before the court. Therefore it is ordered that, within 10 days of the date of this entry, NYK is to submit to the court a list of which costs and fees from its previous submission were incurred in the prosecution of its cross-claim and which costs and fees were incurred as a part of its defense through April 17, 2002. PBI shall either stipulate to the amount identified by NYK or provide any written challenge within 10 days of its receipt of NYK's submission.
PBI's Motion for Summary Judgment will be DENIED.
As noted, the entry of judgment on these claims will not occur until the court makes a determination of the amount to be awarded NYK. In other words, the time for initiating an appeal in this matter will not start until judgment is entered.
ALL OF WHICH IS ENTERED.