The opinion
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 21-61958-SINGHAL/VALLE
ANNETTE DAVIS,
Plaintiff,
v.
GREAT NORTHERN INSURANCE
COMPANY and FEDERAL INSURANCE
COMPANY,
Defendants.
___________________________________/
OPINION AND ORDER
THIS CAUSE is before the Court upon Defendants’ (“Defendants” or “Chubb” or
“Chubb Insurers”) Motion for Summary Judgment, filed on November 29, 2022 (the
“Motion”) (DE [203]). Defendants filed an accompanying Statement of Undisputed
Material Facts (“DSOF”) (DE [202]). Plaintiff (“Plaintiff” or “Davis”) filed a Response on
December 14, 2022 (DE [237]) and earlier an Opposing Statement of Material Facts on
December 9, 2022 (“PSOF”) (DE [221]).1 Defendants filed a Reply (DE [243]) and Reply
Statement of Material Facts (“RDSOF”) (DE [244]) on December 20, 2022. The Motion is
now ripe for this Court’s consideration.
I. BACKGROUND
This lawsuit involves an insurance coverage dispute stemming from injuries
Plaintiff allegedly suffered from exposure to toxic mold in her home. Plaintiff owned and
resided in The Tides at Bridgeside Square Condominium (the “Tides”). See JSOF ¶ 1.
Akam On-Site, Inc. (“Akam”) was the property manager for the Tides. See JSOF ¶ 2.
1 Each numbered paragraph, or portion therein, in the DSOF that is undisputed by the PSOF will be
management services in connection with annual maintenance work on a water-cooling
tower at the Tides (hereinafter the “Underlying Action”). See Am. Compl. ¶¶ 10–25 (DE
[23]). The botched maintenance work is alleged to have allowed water to infiltrate the
condominium, creating a rampant mold infestation, which is alleged to have caused
Plaintiff’s injuries. Id.
Under Akam’s property management contract, Tides designated Akam as a
“named insured” in its liability policies. See (DE [202-4], at 10). At issue in this lawsuit are
two separate sets of liability policies of Tides. The first set, issued by AmTrust
International Underwriters (“AmTrust”), insured Tides under a primary commercial
general liability policy. See (DE [23-1]). The AmTrust policies contain an “Organic
Pathogen Exclusion,” which excludes bodily injury, “which would not have occurred . . .
but for . . . exposure to . . . any . . . ‘[o]rganic pathogen,’” which includes “any type of mold
. . . .” See (DE [23-1], at 76–77). The second set, issued by the Chubb Insurers, insured
Tides under primary insurance policies issued by Defendant Great Northern Insurance
Company and excess and umbrella policies issued by Defendant Federal Insurance
Company. See Am. Compl. ¶¶ 1, 35 (DE [23]); see also (DE [202-8]). Based on the Chubb
policies’ “other insurance” provisions, the Chubb policies were afforded excess priority to
the primary AmTrust policies. See (DE [202-35]).
In a letter to Tides dated May 31, 2018, Amtrust stated that it “ha[d] agreed to
provide [Tides] a defense against the claims asserted in the [Underlying Action] subject
to certain rights reserved in this letter” and had “already arranged for such defense.” See
(DE [202-7], at 2). The letter referenced the organic pathogen exclusion noting that it
might apply to the action “if bodily injury and/or property damage occurred due to the
result of the plaintiff’s allegations because [the] policy does not provide coverage for or
indemnification of bodily injury or property damage resultant from mold.” Id. at 7. The
letter did not indicate its policy was excess over any other policy. See generally (DE [202-
7]).
Amtrust retained the Conroy Simberg law firm to defend Akam in the Underlying
Action. See (DE [202-5], at 38:9-12, 48–49, 61:11-23). Conroy Simberg “provided an
unfettered defense to the [Tides] and [Akam] with respect to the claims . . . raised in [the
Underlying Action].” Id. at 57–58, 82–83, 113:15-25. This defense included retaining five
experts and providing a “full, complete defense” against all allegations against Akam. Id.
AmTrust fully funded Akam’s defense by paying all of Conroy Simberg’s fees, costs, and
expenses. See JSOF ¶ 29. AmTrust never wrote to Akam that the AmTrust policy was
excess to Akam’s own insurance policies, and AmTrust never asked Chubb to share
defense costs. See (DE [202-5], at 114).
Akam first reported the incident to Chubb in July 2018, more than four months after
Plaintiff initiated the Underlying Action. See (DE [202-9]). At that time, AmTrust was
already fully defending Akam. See JSOF ¶ 33; (DE [202-10], at 17:12-22, 53:15–54:5,
56:20–57:14, 119:19–120:12, 123:2-24); (DE [202-5], at 73:3-8). On October 9, 2018,
Chubb issued its first Reservation of Rights letter to Akam (the “10/9/2018 ROR”). See
(DE [202-11]). This letter acknowledged that AmTrust was providing Akam a defense and
stated the Chubb primary policy was in excess to the AmTrust policy issued to Tides that
named Akam as an additional insured. Id. at 2, 4, 20. The letter explicitly stated that it
was “not a denial of coverage” and that Chubb reserved all its rights under the policies,
“which [Akam] acknowledges and accepts pursuant to this reservation of rights.” Id. at 22.
ROR”). See (DE [202-12]). That letter reiterated that AmTrust was defending Akam in the
Underlying Action under a general liability policy issued to the Tides, under which Akam
was an insured. Id. at 2. This letter additionally reiterated that Chubb was excess of
AmTrust’s primary policy, under which Akam was being defended, due to the Chubb
policies’ Other Insurance provision. Id. at 6, 21, 23. The letter concluded by explicitly
stating it was “not a denial of coverage” and that Chubb “reserve[d] all [its] rights, which
[Akam] acknowledges and accepts pursuant to this reservation of rights.” Id. at 26. Akam
did not reject, dispute, or otherwise object to anything contained in either the 10/9/2018
ROR or 2/8/2019 ROR in 2018, 2019 or 2020. See JSOF 41. And at no point did Chubb
expressly disclaim coverage to Akam. See JSOF ¶ 42; (DE [202-11]; DE [202-12]; DE
[202-10], at 222:7–223:2, 223:13-22).
Conroy Simberg, in the course of its defense of Akam, prepared multiple case
evaluations which it provided to AmTrust and Chubb. See JSOF ¶ 44. In January 2019,
Conroy Simberg prepared a 35-page “Pre-Mediation Report,” which it sent to AmTrust
and Chubb. See JSOF ¶ 46; (DE [202-14]). The Pre-Mediation Report concluded Davis
had only a 20% to 30% chance of obtaining a favorable liability verdict and would face
even more difficulty proving causation of damages. See (DE [202-14], at 35). The Pre-
Mediation Report estimated the settlement value of the Underlying Action at $150,000 –
$200,000, which was based on future defense attorneys’ fees and costs through trial. Id.
In March 2020, Conroy Simberg prepared a 59-page “Pre-Trial Report,” which it provided
to AmTrust and Chubb. See JSOF ¶ 50; (DE [202-15]). This report reiterated the
conclusion Plaintiff only had a 20% to 30% chance of obtaining a favorable liability verdict
and would face difficulty proving causation of damages. See (DE [202-15], at 59). The
defense attorney fees and costs through trial. Id. During the Underlying Action, Plaintiff
served a proposal for settlement to Akam for $3.75 million. See (DE [202-36], at 3).
Plaintiff subsequently made a joint demand to Akam and the Tides for $2.975 million. See
(DE [202-15], at 58).
In September 2020, the parties in the Underlying Action attended a second
mediation, see (DE [202-5], at 98:3-15), and Akam retained attorney Stephen Marino of
the law firm Ver Ploeg & Marino, P.A. (“VPM”) as personal counsel, see JSOF 60. After
mediation proved unsuccessful, on December 10, 2020, Chubb sent a letter to Akam
advising Akam that Chubb had “decided to exercise its right to participate in the defense
and retained [attorney] Pete L. DeMahy of DeMahy Labrador Drake & Cabeza [(“DLD
Lawyers”)] as additional counsel representing [Akam] in the [Underlying Action].” (DE
[202-18]). On December 16, 2020, Marino responded to Chubb’s letter asking Chubb to
“promptly and clearly articulate the terms under which Chubb is now offering to defend
[Akam], so that an informed decision to accept or reject the defense can be made.” (DE
[202-19]). On December 22, 2020, Chubb responded writing that Chubb had “been
handling this matter for Akam under a complete reservation of rights, which was
accepted,” and that “Chubb recently retained Pete DeMahy and [his law firm] DLD
Lawyers to act as co-trial counsel for Akam.” (DE [202-20]). On February 5, 2021, Marino
advised Chubb that Akam was rejecting Chubb’s qualified defense. See (DE [202-21]).
On February 12, 2021, Chubb wrote to Akam stating Akam improperly attempted to reject
Chubb’s Reservation of Rights because Akam had acknowledged and accepted Chubb’s
reservation of rights over two years ago on February 8, 2019. See (DE [202-22]).
Additionally, Chubb advised Akam that its interference with Chubb’s attempt to associate
15, 2021, Marino wrote to Chubb that Chubb had wrongfully refused to defend or
acknowledge its indemnity obligation for the past two years and had belatedly offered a
qualified defense, which Chubb was entitled to and did reject. See PSOF ¶ 72.
At the September 2020 mediation in the Underlying Action, Mediator Jeffrey
Streitfeld, introduced the idea of a Coblentz agreement. Id. ¶ 73; JSOF ¶ 74. Because
Akam did not immediately express interest in the Coblentz agreement during the weeks
following the September 2020 mediation, Plaintiff filed a second lawsuit against Akam,
the Tides, and Chubb in November 2020. See (DE [202-29]). According to Tides’ counsel,
Leonard, the Tides was interested in a Coblentz agreement partially because “any
negligence that Akam had relevant to the safety of the building would nonetheless trigger
and fall at the feet of [the Tides],” but the Tides lacked indemnity coverage for bodily injury
based on the “pollution” or “pathogen exclusion” in the AmTrust policy. See (DE [202-27],
at 97:13–98:17, 114:23–115:9). The Tides could not entertain any settlement from Davis
unless Akam was also included because of the “cross-indemnity provisions under the
Management Contract.” JSOF ¶ 77.
Plaintiff, Akam, and Tides subsequently entered into a settlement of the Underlying
Lawsuit (the “Coblentz Agreement”) (DE [48-2]). The Coblentz Agreement included a
payment in the sum of $250,000 to be made to Plaintiff, which included $100,000 to be
paid directly from Akam and $150,000 to be paid by AmTrust on Akam’s behalf. Id. at 7.
Curiously, AmTrust was not a party to the Coblentz Agreement. Id. at 1. Second, the
Coblentz Agreement assigned to Plaintiff all of Akam’s claims against the Chubb Insurers
arising out of their alleged denial of coverage for, and alleged refusal to defend Akam
against, Plaintiff’s negligence claims in the Underlying Lawsuit. Id. at 7. Third, the
specified that “Davis’ right to seek satisfaction of the Consent Judgment [was] solely
against [the Chubb Insurers] and the [Chubb Policies].” Id. at 8. Defendants now move
for summary judgment on various grounds.
II. LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment “is
appropriate only if ‘the movant shows that there is no genuine [dispute] as to any material
fact and the movant is entitled to judgment as a matter of law.’” Tolan v. Cotton, 572 U.S.
650, 656–57 (2014) (per curiam) (quoting Fed. R. Civ. P. 56(a));2 see also Alabama v.
North Carolina, 560 U.S. 330, 344 (2010). “By its very terms, this standard provides that
the mere existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is that there
be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247–48 (1986). An issue is “genuine” if a reasonable trier of fact, viewing all of the record
evidence, could rationally find in favor of the nonmoving party in light of his burden of
proof. Harrison v. Culliver, 746 F.3d 1288, 1298 (11th Cir. 2014). And a fact is “material”
if, “under the applicable substantive law, it might affect the outcome of the case.” Hickson
Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259–60 (11th Cir. 2004). “[W]here the
material facts are undisputed and do not support a reasonable inference in favor of the
non-movant, summary judgment may properly be granted as a matter of law.” DA Realty
Holdings, LLC v. Tenn. Land Consultants, 631 F. App’x 817, 820 (11th Cir. 2015).
The Court must construe the evidence in the light most favorable to the nonmoving
party and draw all reasonable inferences in that party’s favor. SEC v. Monterosso, 756
2 The 2010 Amendment to Rule 56(a) substituted the phrase “genuine dispute” for the former “‘genuine
issue’ of any material fact.”
“the nonmoving party must offer more than a mere scintilla of evidence for its position;
indeed, the nonmoving party must make a showing sufficient to permit the jury to
reasonably find on its behalf.” Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1050 (11th
Cir. 2015). “[T]his, however, does not mean that we are constrained to accept all the
nonmovant’s factual characterizations and legal arguments.” Beal v. Paramount Pictures
Corp., 20 F.3d 454, 459 (11th Cir. 1994).
III. CHOICE OF LAW
A federal court exercising diversity jurisdiction applies the “choice of law” rules of
the forum state. Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). A choice of
law analysis is only necessary if the outcome would be different based on one state’s
laws over the other. A “false conflict” exists if “the laws of different states are (1) the same,
(2) different but would produce the same outcome under the facts of the case, or (3) when
the policies of one state would be furthered by the application of its laws while the policy
of the other state would not be advanced by the application of its laws.” Tune v. Philip
Morris, Inc., 766 So. 2d 350, 352 (Fla. 2d DCA 2000) (citations omitted). Because Florida
law is no different than New York law on the issues presented in this action, the parties
agree this Court must apply Florida law. See Motion, at 2; Response, at 4. Plaintiff notes
New York law differs on (i) when an insurer must provide a disclaimer of liability to be
valid, and (ii) whether an insured need not establish actual liability to the party with whom
it has settled to recover under a Coblentz agreement. See Response, at 4. For the
purposes of this Order, the Court accepts Plaintiff’s position on those two issues.
IV. DISCUSSION
Defendants move for summary judgment on several grounds. First, Defendants
because Defendants never disclaimed coverage, Defendants’ duty to defend was never
activated, and Akam interfered with Defendants’ right to associate in defense counsel.
See Motion, at 3–11. Second, Defendants contend the Coblentz agreement is
unenforceable because it is not reasonable and was not negotiated in good faith. Id. at
12–18. Third, Defendants argue the Coblentz agreement is unenforceable because it
does not allocate between covered and uncovered damages. Id. at 19–20.
Plaintiff responds arguing Defendants’ policies are primary, not excess, because
they are the only policies that could cover Akam for Plaintiff’s mold-related damages due
to the exclusions in Amtrust’s policies. See Response, at 5–8. Second, Plaintiff asserts
Defendants tacitly denied coverage in the February 14, 2019 letter. Id. at 8–9. Third,
Plaintiff contends Defendants failed to comply with New York law’s requirement regarding
providing written notice of disclaimer of coverage as soon as reasonably possible. Id. at
9–11. Fourth, Plaintiff argues Akam’s April 15, 2021 rejection of Chubb’s offer to defend
was proper and Akam was entitled to take control of its defense and enter into the
Coblentz agreement. Id. at 11–14. Fifth, Plaintiff asserts the consent judgment is
enforceable because Akam’s potential liability at the time of the agreement was clear and
culminated in a reasonable amount after good faith negotiations. Id. at 14–20.
A. Burden of Proof
“Where an injured party wishes to recover under a Coblentz agreement, the injured
party must bring an action against the insurer and prove [1] coverage, [2] wrongful refusal
to defend, and [3] that the settlement was reasonable and made in good faith.” Chomat
v. N. Ins. Co. of N.Y., 919 So. 2d 535, 537 (Fla. 3d DCA 2006) (cleaned up and citations
omitted); see also Sinni v. Scottsdale Ins. Co., 676 F. Supp. 2d 1319, 1324 (M.D. Fla.
factual record, could reasonably find Plaintiff satisfied each of the three elements.
B. Wrongful Refusal to Defend
“It is well-established that an insurer does not breach the duty to defend by offering
to defend subject to a reservation of rights.” Travelers Indem. Co. of Conn. v. Att’y’s Title
Ins. Fund, Inc. 194 F. Supp. 3d 1224, 1229 (M.D. Fla. 2016) (citing Mid-Continent Cas.
Co. v. Am. Pride Bldg. Co., LLC, 601 F.3d 1143, 1149 (11th Cir. 2010), aff’d, 733 F. App’x
524 (11th Cir. 2018)). “[A]n insurer is obligated to defend a claim even if it is uncertain
whether coverage exists under the policy. Under these circumstances, an insurer may
reserve its right to challenge coverage under the policy without breaching its duty to
defend by providing a defense under a reservation of rights.” Am. Pride Bldg. Co., LLC,
601 F.3d at 1149 (citations omitted). “[I]f the insurer offers to defend under a reservation
of rights, the insured has the right to reject the defense and hire its own attorneys and
control the defense.” Bellsouth Telecomm., Inc. v. Church & Tower of Fla., Inc., 930 So.
2d 668, 671 (Fla. 3d DCA 2006) (citations omitted).
Here, as discussed above, Chubb issued its first Reservation of Rights letter to
Akam on October 9, 2018. See (DE [202-11]). This letter acknowledged that AmTrust was
providing Akam a defense and stated that Chubb’s primary policy was in excess to the
AmTrust policy issued to Tides that named Akam as an additional insured. Id. at 2, 4, 20.
The letter explicitly stated that it was “not a denial of coverage” and that Chubb reserved
all its rights under the policies. Id. at 22. On February 8, 2019, Chubb issued the second
Reservation of Rights letter. See (DE [202-12]). That letter reiterated that AmTrust was
defending Akam in the Underlying Action under a general liability policy issued to the
Tides, under which Akam was an insured. Id. at 2. This letter additionally reiterated that
due to the Chubb policies’ Other Insurance provision. Id. at 6, 21, 23. The letter concluded
by explicitly stating it was “not a denial of coverage” and that Chubb “reserve[d] all [its]
rights . . . .” Id. at 26. Akam did not reject, dispute, or otherwise object to anything
contained in either the 10/9/2018 ROR or 2/8/2019 ROR in 2018, 2019 or 2020. See
JSOF 41. And at no point did Chubb ever expressly disclaim coverage to Akam. See
JSOF ¶ 42; (DE [202-11]; DE [202-12]; DE [202-10], at 222:7–223:2, 223:13-22).
In December 2020, after handling the lawsuit under a reservation of rights for two
years, Defendants offered to supplement Akam’s trial team by adding a second law firm.
After the second unsuccessful mediation, Chubb advised Akam it had decided to exercise
its right to participate in the defense and retained counsel. Counsel for Akam
subsequently rejected and prevented Defendants’ retained counsel from associating in
the defense of Akam, arguing that Chubb had wrongfully refused to defend for the past
two years.
No reasonable jury could find Chubb refused to defend Akam. There is no
language cited in any correspondence indicating a refusal to defend. In fact, the two key
pieces of correspondence from Chubb expressly state they are not to be construed as
denials of coverage. Plaintiff’s argument that Chubb’s February 14, 20193 letter was a
tacit denial of coverage is entirely unsupported both in law and fact. Plaintiff essentially
argues that Chubb effectively denied coverage by pointing out that its policies were
excess to the AmTrust policies because the AmTrust policies contained an exclusion that
would make them uncollectible in the Underlying Action. Plaintiff cites no authority for this
novel argument and the Court is aware of none. And the facts of the case show, despite
3 See (DE [216-17]).
throughout the course of the Underlying Action. The factual record, as summarized supra
section I., clearly demonstrates Defendants monitored the action under a reservation of
rights because the primary insurer, AmTrust, was in fact defending the action. The Court
finds no reasonable jury could conclude Defendants disclaimed coverage. For this reason
alone, Plaintiff is unable to prove the second element to enforce a Coblentz agreement,
and Defendants are entitled to judgment as a matter of law.
C. Breach of Cooperation Provision
By accepting and not rejecting an insurer’s reservation of rights defense, an
insured must cooperate with the insurer throughout the litigation. See Am. Pride Bldg.
Co., LLC, 601 F.3d at 1149. But “Florida law does not allow an insurer to escape liability
each time an insured fails to cooperate.” Travelers Indem. Co. of Conn., 194 F. Supp. at
1232. “[T]o constitute a breach of the policy, the insurer must show [1] that the lack of
cooperation was material and [2] that it was substantially prejudiced in the particular case
by failure to cooperate.” Id. (citing Ramos v. Nw. Mut. Ins. Co., 336 So. 2d 71, 75 (Fla.
1976)). Courts have found Coblentz agreements unenforceable where the insured
breaches the policy’s cooperation provision. See, e.g., Travelers Indem. Co. of Conn.,
194 F. Supp. 3d at 1231–32 (finding $40 million Coblentz agreement unenforceable
where insured breached cooperation provision).
Here, the record indicates there is no question Akam breached the policy’s
cooperation provision. Akam completely blocked Chubb from associating in counsel to
supplement Akam’s trial team as trial was approaching. This group of attorneys then
proceeded to settle the matter and pass off a massive consent judgment collectible
against the insurer whose attorney they barred from participating in the settlement
failure to provide meaningful information, or any other sort of close question on the issues
of whether there is a material lack of cooperation and whether said lack of cooperation
was substantially prejudicial. This case involves an insured, not simply failing to
cooperate, but entirely preventing an insurer from providing a defense to the insured. The
Court finds no reasonable jury could conclude Akam did not violate the policy’s
cooperation provision. On this basis alone, Plaintiff is unable to satisfy her burden of proof
because Akam has materially breached the underlying insurance contract the Coblentz
agreement is built upon.
D. Reasonableness and Good Faith of Coblentz Agreement
A Coblentz agreement “settlement may not be enforced against the [insurer] if it is
[1] unreasonable in amount or [2] tainted by bad faith.” Steil v. Fla. Physicians’ Ins.
Reciprocal, 448 So. 2d 589, 592 (Fla. 2d DCA 1984). And the party seeking to enforce it
bears the initial burden to prove each of these elements. Id. This rule addresses “[t]he
real concern . . . that the settlement between the claimant and the insured may not actually
represent an arm’s length determination of the worth of the plaintiff’s claim” because the
claimant “has little or nothing to lose because he will never be obligated to pay.” Id. A
Coblentz agreement does not “authorize the insured to indiscriminately load the carrier's
wagon with bricks of damage that no reasonable person would expect as consequences
of the underlying claim.” Bond Safeguard Ins. Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh,
Pa., 2014 WL 5325728, at *9 (M.D. Fla. Oct. 20, 2014).
“A determination of reasonableness of the settlement agreement is made in view
of the degree of probability of the insured's success and the size of the possible recovery.”
Wrangen v. Pa. Lumbermans Mut. Ins. Co., 593 F. Supp. 2d 1273, 1279 (S.D. Fla. 2008)
(citing Indep. Fire Ins. Co. v. Paulekas, 633 So. 2d 1111, 1114 (Fla. 3d DCA 1994))
(cleaned up). A court will find the existence of bad faith and collusion if there is “an
agreement in which an insured agrees to accept essentially any judgment amount that
the injured party seeks in exchange for a promise to not execute against it.” Sidman v.
Travelers Cas. and Sur., 841 F.3d 1197, 1206 (11th Cir. 2016).
Here, the Coblentz settlement amount of $14.5 million is 58 times the pre-trial
report settlement range of $150,000 — $250,000. And even more astoundingly, this
amount is more than three times any demand ever made by Davis in the course of the
Underlying Action—Davis’ highest settlement demand was for $3.75 million in March
2019. With these two facts alone, the Court finds no reasonable jury could conclude this
agreement was not grossly unreasonable or tainted by bad faith. In sum, a Motion for
Summary Judgment is based on record facts presented to the Court. Simply put, if having
viewed those facts—and there being no genuine disputes—and the applicable law, the
Court would at trial grant a directed verdict and never send the case to the jury, the Motion
should be granted and summary judgment entered. This is that case.
Accordingly, for the reasons discussed above, it is hereby ORDERED AND
ADJUDGED that Defendants’ Motion for Summary Judgment (DE [203]) is GRANTED.
Final judgment will be entered separately pursuant to Federal Rule of Civil Procedure 58.
DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 11th day of
January 2023. \
Ss
UNITED STATES DISTRICT JUDGE
Copies furnished counsel via CM/ECF
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