FIREMAN'S FUND INSURANCE COMPANY, ONE BEACON INSURANCE COMPANY, NATIONAL LIABILITY AND FIRE INSURANCE COMPANY, QBE MARINE & ENERGY SYNDICATE 1036, Plaintiffs -- Counterclaim-Defendants -- Appellants,
GREAT AMERICAN INSURANCE COMPANY OF NEW YORK, Defendant -- Crossclaim-Defendant -- Counter-Claimant -- Appellee, MAX SPECIALTY INSURANCE COMPANY, Defendant -- Crossclaim-Defendant -- Counter-Claimant -- Appellee,
SIGNAL INTERNATIONAL, LLC, Defendant -- Crossclaim-Defendant -- Cross-Claimant.
June 24, 2015.
Appeals from the United States District Court for the
Southern District of New York. No. 10-cv-1653 -- J. Paul
Oetken, Judge. Fireman's Fund Insurance Company ("
Fireman's Fund" ) and Signal International, LLC
(" Signal" ) appealed from judgments of the United
States District Court for the Southern District of New York
Oetken, J.), granting summary judgment to Great American
Insurance Company of New York (" Great American" )
and Max Specialty Insurance Company (" MSI" ).
Fireman's Fund, Great American, and MSI underwrote
insurance policies that included coverage for a dry dock that
Signal owned. After the dry dock sank, Signal and
Fireman's Fund sought contribution for losses and cleanup
costs from Great American and MSI. Fireman's Fund
initiated this action to resolve disputes regarding coverage.
The district court held that the Great American and MSI
policies were void because (1) Great American's pollution
insurance policy was a marine insurance contract subject to
the doctrine of uberrimae fidei, and Signal's failure to
disclose that the dry dock had deteriorated and that repairs
recommended over several years had not been made violated its
duty of utmost good faith under that doctrine, and (2) Signal
materially misrepresented the dry dock's condition when
it applied for coverage from MSI. We AFFIRM.
A.V. NICOLETTI (Robert A. Novak, William M. Fennell, on the
brief), Nicoletti Hornig & Sweeney, New York, NY, for
R. ZACHARKOW (Stephen J. Galati, Christian T. Johnson, on the
brief), Mattioni, Ltd., Philadelphia, PA, for
Defendant-Appellee Great American Insurance Company of New
D. STRAUS, Traub Lieberman Straus & Shrewsberry LLP,
Hawthorne, NY, for Defendant-Appellee Max Specialty Insurance
CABRANES, POOLER, and DRONEY, Circuit Judges.
Circuit Judge :
are Fireman's Fund Insurance Company, One Beacon
Insurance Company, National Liability and Fire Insurance
Company, and QBE Marine & Energy Syndicate 1036 (collectively
" Fireman's Fund" ), insurance companies that
provided marine general liability and marine excess liability
policies to Defendant--Appellant Signal International, LLC
(" Signal" ). Fireman's Fund and Signal
appealed from a judgment of the United States District Court
for the Southern District of New York (Oetken, J. ),
granting summary judgment to Defendants-Appellees Great
American Insurance Company of New York (" Great
American" ) and Max Specialty Insurance Company ("
Fund, Great American, and MSI issued insurance policies that
provided various coverages for a dry dock in Port Arthur,
Texas owned by Signal. After the dry dock sank in 2009,
Signal and Fireman's Fund sought contributions from Great
American and MSI for the loss of the dry dock and resulting
environmental cleanup costs. The district court ruled in
adjudicating a number of summary judgment motions that the
Great American and MSI policies were void in light of
Signal's failure to disclose when it applied for those
policies that the dry dock had significantly deteriorated and
that repairs recommended by a number of consultants and
engineers over several years had not been made.
submission of this appeal, MSI and Signal reached a
settlement and obtained a dismissal of the case between them.
Therefore, Signal no longer appeals the grant of summary
judgment to MSI. Nonetheless, Fireman's Fund asserts that
it may still pursue appeal of the issues relating to the
policy issued to Signal by MSI based on our decision in
Maryland Cas. Co. v. W.R. Grace & Co. See
218 F.3d 204, 211 (2d Cir. 2000) ( " [T]he contract of
settlement an insurer enters into with the insured cannot
affect the rights of another insurer who is not a party to
it. Instead, whatever obligations or rights to contribution
may exist between two or more insurers of the same event flow
from equitable principles." ). Fireman's Fund was
granted summary judgment below against MSI on a contribution
claim based on MSI's policy, and we assume without
deciding that Fireman's Fund is correct that it may
pursue this appeal of the district court's decision
finding the MSI policy void, based on Fireman's
Fund's interest in the unappealed summary judgment
decision on contribution.
agree with the district court's orders. We hold that the
Great American policy was a marine insurance contract subject
to the doctrine of uberrimae fidei and that
Signal's nondisclosure violated its duty under that
doctrine, permitting Great American to void the policy. We
further hold that MSI's policy was governed by
Mississippi law; that, under that law, Signal materially
misrepresented the dry dock's condition; and that MSI was
entitled to void the policy on that basis. Accordingly, we
The Operation and Loss of the Dry Dock
is a marine construction firm involved principally in
building and repairing ocean-going structures such as
offshore drilling rigs, platforms, and barges. In 2003,
Signal purchased six facilities--two in Mississippi and four
in Texas--for use in its business of repairing, upgrading,
and converting offshore drilling rigs. One of the Texas
facilities was a dockyard in Port Arthur, Texas. In acquiring
that facility, Signal assumed an existing lease of a dry dock
(" the dry dock" ) located along the Sabine-Neches
Waterway near the Gulf of Mexico. The dry dock was built in
1944 at the direction of the United States Navy to repair
Navy ships. In early 2005, Signal accepted an offer from the
lessor to purchase the dry dock, which Signal had been using
in its operations since it assumed the lease.
its lease and ownership of the dry dock, Signal received a
number of reports on the dry dock's deteriorated
condition. These included the following:
o The Heger Reports: The dry dock engineering firm Heger Dry
Dock, Inc. (" Heger" ) of Holliston, Massachusetts,
periodically inspected the dry dock between 2002 and 2009. In
2002, Freide Goldman Offshore--the operator of the dry dock
before Signal--asked Heger to inspect the dry dock in order
to provide an estimate of its fair market
value. In a December 2002 appraisal, Heger
described " the dry dock [as being] . . . in fair to
good condition, with the exception of the pontoon deck . . .,
which [was] in poor condition and should be replaced, and
section H, which showed markedly more corrosion internally .
. . ."  J.A. 4215. Heger estimated that the
dry dock would have " 10 years of remaining useful life
if the pontoon deck [was] completely repaired," but the
costs of making these " extensive repairs" in the
United States rendered the dry dock's value " below
zero."  J.A. 4215, 4216. In a series of
subsequent reports from 2007 through 2009 commissioned by
Signal to assist it in prolonging the existing life of the
dry dock, Heger found that the dry dock had continued to
deteriorate and that long-term repairs had not been made.
Instead, Signal had simply patched damaged areas with "
doublers."  J.A. 688. Heger provided
recommendations for extensive repairs that would be required
for the dry dock to continue to operate safely. However,
Heger repeatedly advised that " the expected life
extension for the dock . . . [would] only be a few
years" and therefore " the cost, time and effort to
perform this work [was] not economically justifiable."
J.A. 689. Heger also provided Signal with plans for
converting the dry dock to a seven-pontoon configuration (by
removing Pontoon H) but warned that " the dry dock
structure . . . should be satisfactorily restored before
using the dock or proceeding with any modifications."
o The ABS Audits: Auditor ABS Consulting (" ABS" )
of Houston, Texas, a maritime risk management firm, was
designated by the Port of Port Arthur to review and report on
Signal's maintenance and repair programs at the dry dock.
In 2003, ABS observed " the rapidly increasing rate of
overall deterioration" of the dry dock, which was "
largely due to the drydock's age . . ., and . . . lack of
adequate maintenance and/or repair." J.A. 4166. ABS
noted that, although it had notified the dry dock's
owners and operators in January 2000 of the " advanced
state of . . . deterioration," they had " made no
apparent efforts" to implement ABS's recommended
repairs. J.A. 4168. Instead, " more than a hundred
doubler plates ha[d] been welded over severely wasted/holed .
. . platings." J.A. 4167. Six months later, ABS reported
that Pontoon H was " leaking severely," and
Pontoons E and G were " leaking significantly" as
well. J.A. 4161. ABS concluded that " it appeared that
unsafe drydock operations were being conducted" and
recommended that " additional drydockings [not be
conducted] until substantial hull repairs [were] made to
'H' pontoon and the repairs [were] verified."
J.A. 4162 (emphases omitted).
o Internal Staff Study: In April 2003, Signal conducted an
internal " staff study" to determine whether to
purchase the leased dry dock from the Port Commission of Port
Arthur. The study found that, " without major renewal
costs," the dry dock's remaining useful life was
" only 3 to 5 years." J.A. 4188. The study
concluded that it would cost $21.88 million to extend the
life of the dry dock's pontoons " for maybe 10 to 15
years." J.A. 4186-87. The study ultimately advised
against purchasing the dry dock in light of its "
relatively short remaining useful life and extreme costs of
renewal/life extension." J.A. 4188.
o The DLS Surveys: The marine appraiser, surveyor, and
consulting firm Dufour, Laskay & Strouse, Inc. ("
DLS" ) of Houston, Louisiana, and Florida was hired to
inspect and appraise Signal's Texas and Mississippi
facilities " for the purpose of asset allocation and
financial review" by GE Commercial Finance, Signal's
financing company. J.A. 526. Between 2005 and 2007, DLS
observed that the dry dock " had significant water in
most compartments . . . [that] require[d] pumping and
trimming every four hours," which was " indicative
of some wastage holes in the bottom." J.A. 551, 4437;
see also J.A. 5314. Each year, DLS noted that "
[t]he deck plating . . . ha[d] significant doubler plates
where plating ha[d] either wasted or separated from internal
framing" and that " there was . . . a 12-long tear
in the plating extending along a transverse frame" that
" reportedly . . . w[ould] be fitted with a proper
doubler in the near future." J.A. 551, 4437, 5314. In
2007, DLS concluded that the dry dock was in " fair to
good condition" but recommended that its pontoons be
dry-docked and repaired " [a]s soon as practical within
the succeeding eighteen months . . . to render [it] in good
stable operating condition and provide a life
extension." J.A. 4437.
o The 2009 Heller Property Risk Assessment Report: Stephen
Heller & Associates Inc. (" Heller" ) of Houston--a
loss prevention consulting firm--was hired by Signal in 2008
to conduct a risk review of Signal's Mississippi and
Texas facilities in order to " assist [insurance]
underwriters in evaluating the exposures, operations, and
loss prevention" for those facilities. J.A. 2267. In a
January 2009 report, Heller rated the Mississippi and Texas
facilities " [o]verall" as " Above
Average," meaning that they met " [a]cceptable
standards including some industry best practices." J.A.
2270. Heller found that " [t]he maximum foreseeable loss
(MFL) or worst case scenario for these facilities [included]
a sinking or structural collapse of [the] dry dock at . . .
Port Arthur." J.A. 2269. The maximum foreseeable loss
was described as " one of extremely low probability and
frequency based on previous industry experience." J.A.
never replaced the dry dock's pontoons or pontoon decks.
Instead, Signal continued to use inserts and doublers to
patch holes in the decks.
2009, Signal decided to implement the seven-pontoon
configuration by removing Pontoon H. On August 20, 2009, it
attempted to remove that pontoon, but during that procedure
the entire dry dock sank.
after the sinking, Signal notified the Texas General Land
Office (" GLO" ), which regulates pollution
affecting Texas shoreline waters, about what had occurred. In
September 2009, the GLO advised Signal to " initiate
immediate action to recover the . . . dry dock from Texas
coastal waters."  J.A. 3516. In June 2010, Signal hired
Weeks Marine, Inc., to manage removal of the sunken dry dock
and cleanup of the site. Removal and cleanup efforts were not
completed until March 2012 and resulted in $12,395,026 in
The Insurance Policies Covering the Dry Dock
had obtained five insurance policies that insured against
risks related to the dry dock at the time of its sinking: (1)
a marine general liability policy issued by Fireman's
Fund; (2) a marine excess liability policy issued by
Fireman's Fund; (3) a pollution policy issued by Great
American (the " Pollution Policy" ); (4) a primary
property insurance policy (the " PPI Policy" )
issued by Westchester Surplus Lines Insurance Company ("
Westchester" ); and (5) an excess property insurance
policy issued by MSI, which provided coverage in excess of
the PPI Policy (the " EPI Policy" ). Only the Great
American Pollution Policy and the MSI EPI Policy are at issue
American first underwrote the Pollution Policy in 2004 and
renewed it annually through 2009. To obtain the renewal of
the policy for 2009, Signal completed and submitted Great
American's standard " Vessel Pollution Liability
Application" along with a " Schedule of
Vessels," which included the dry dock and approximately
twenty-five tugboats and barges owned by Signal. The
Pollution Policy insured Signal against losses of up to $5
million for each property in the Schedule resulting from
pollution discharges into navigable waters. The policy
specifically insured against claims under the " Oil
Pollution Act of 1990, . . . 33 U.S.C. [§ ] 2701 et
seq. " (" OPA" ), the "
Comprehensive Environmental Response, Compensation[,] and
Liability Act, 42 U.S.C. [§ ] 9601, et seq.
" (" CERCLA" ), and the " Federal Water
Pollution Control Act Amendments of 1972, 33 U.S.C. [§ ]
1321, et seq. " (" FWPCA" ), and the
costs of " on-water removal of materials of a non-OPA
and non-CERCLA nature which has been mandated by an
authorized public authority and [was] the result of a defined
single, sudden and accidental event." J.A. 737. An
endorsement to the policy also extended coverage to "
all Vessels while under repair, alteration, construction,
conversion or rebuilding" within 100 miles of the Port
Arthur dockyard. J.A. 738.
underwrote the EPI Policy in January 2009. To apply for the
policy, Signal submitted its " 2009-2010 Property
Insurance Submission." This document included a "
Statement of Values" that described the dry dock's
value as $13.6 million and the 2009 Heller Report, but it did
not include other information--such as the Heger reports, the
ABS audits, or the DLS surveys--suggesting that the dry dock
was in need of repair. The EPI Policy insured against loss of
or damage to properties listed in the Statement of Values, as
well as business interruption costs and " [e]xtra
[e]xpense[s]" associated with the loss of those
properties. The policy provided $15 million coverage for
losses in excess of the underlying PPI Policy, which covered
losses up to $10 million.
Post-Loss Insurance Claims
January 2010, Westchester paid Signal its total coverage
amount of $10 million pursuant to the PPI Policy for losses
related to the dry dock. MSI paid Signal $3.6 million of its
total coverage amount of $15 million under the EPI Policy
based on the $13.6 million value of the dry dock, as
represented in the Statement of Values. Great American
refused to make any payments under its Pollution Policy.
meetings between Signal and its insurers in early 2010, MSI
and Great American argued that their policies did not cover
the costs of removing the dry dock from the Sabine-Neches
Waterway and cleaning up the site. Fireman's Fund agreed
to fund Signal's removal and cleanup efforts but reserved
its right to seek reimbursement later from MSI and Great
March 2, 2010, Fireman's Fund commenced this action
against Signal, Great American, and MSI, seeking a
declaration as to the obligations of Signal and its insurers
for losses associated with the sinking of the dry dock. MSI
asserted cross-claims against Signal for the $3.6 million it
had paid, and also sought to void the EPI Policy on the
ground of misrepresentation after discovery revealed the
various reports on the dry dock's poor condition that
Signal had not provided to MSI when applying for the policy.
Signal cross-claimed against MSI for cleanup and removal
costs and additional damages. Great American filed claims
against Signal and Fireman's Fund, seeking a declaration
that the Pollution Policy was void under the maritime
doctrine of uberrimae fidei, which imposes a duty of
utmost good faith on the insured, or alternatively under
the policy's " Misrepresentation"
October 15, 2010, Signal assigned to Fireman's Fund its
rights under the Great American Pollution Policy, and
Fireman's Fund continued to pursue coverage against Great
American. Both Signal and Fireman's Fund maintained their
claims against MSI; Signal opposed MSI's efforts to
obtain from Signal the $3.6 million it had already paid, and
both Signal and Fireman's Fund sought additional payments
from MSI under its EPI Policy.
appeal arises out of eight motions that were filed after the
close of discovery. Fireman's Fund, Signal, Great
American, and MSI moved or cross-moved on the coverage issues
for the Pollution Policy and EPI Policy.
March 25, 2013, the district court granted partial summary
judgment, holding that under the EPI Policy, MSI was required
to contribute to the payments that Fireman's Fund had
made to Signal. Fireman's Fund Ins. Co. v. Great Am.
Ins. Co. of New York, No. 10 Civ. 1653 (JPO), 2013 WL
1195277, at *8-9 (S.D.N.Y. Mar. 25, 2013). However, on March
31, 2014, the district court ruled--also on summary
judgment--that the Great American Pollution Policy and the
MSI EPI Policy were void ab initio because of
Signal's failure to disclose the dry dock's
deteriorated state. See Fireman's Fund Ins.
Co. v. Great Am. Ins. Co. of New York, 10 F.Supp.3d 460,
466 (S.D.N.Y. 2014). The court concluded that the Great
American Pollution Policy was a marine insurance contract
subject to the doctrine of uberrimae fidei and that
Signal had breached its duty of utmost good faith to Great
American by withholding material information about the dry
dock's condition when it applied for coverage.
See id. 476-93. The district court also
held that the EPI Policy was void under Mississippi law
because Signal had materially misrepresented the dry
dock's condition in its 2009-2010 Property Insurance
Submission. Id. at 494-503. The court therefore
denied Fireman's Fund's and Signal's motions for
summary judgment and partial summary judgment, granted
MSI's and Great American's motions for summary
judgment declaring the policies void, and denied the
remaining motions, including MSI's motion for
reconsideration of the March 25, 2013 decision on
contribution. Id. at 493 & n.19, 503-04 & n.25.
Fireman's Fund and Signal appealed.
submission of this appeal, MSI and Signal reached a
settlement and obtained dismissal of the case between them.
We still must address the validity of the EPI policy,
however, because, notwithstanding the recent settlement
between Fireman's Fund and Signal, the EPI policy is
still the basis for Fireman's Fund's claim for
contribution against MSI.
Great American's Pollution Policy
Fund argues that Great American's Pollution Policy is not
subject to the doctrine of uberrimae fidei. It
further argues that, even if the doctrine applies, Signal did
not breach its duty to Great American because it provided all
information that Great American requested about the dry dock
on its insurance application.
Admiralty Jurisdiction and the Doctrine of Uberrimae
American argues--and the district court concluded--that the
Pollution Policy is void under the maritime doctrine of
uberrimae fidei. For the doctrine to apply,
Fireman's Fund's suit against Great American "
must . . . be sustainable under the [court's] admiralty
jurisdiction." Norfolk S. Ry. Co. v. Kirby, 543
U.S. 14, 23, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004) (emphasis
omitted). This is because federal courts' "
authority to make decisional law for the interpretation of
maritime contracts stems from the Constitution's grant of
admiralty jurisdiction to federal courts." Id.
; see U.S. Const. art. III, § 2, cl. 1
(providing that the federal judicial power " shall
extend . . . to all Cases of admiralty and maritime
Jurisdiction" ). Thus, " the grant of admiralty
jurisdiction and the power to make admiralty law are mutually
dependent." Kirby, 543 U.S. at 23.
Title 28 U.S.C. § 1333(1) grants federal district courts
the power to entertain '[a]ny civil case of admiralty or
maritime jurisdiction.'" Atl. Mut. Ins. Co. v.
Balfour Maclaine Int-l Ltd., 968 F.2d 196, 199 (2d Cir.
1992). " [T]his grant includes jurisdiction 'over
all contracts which relate to the navigation, business, or
commerce of the sea.'" Id. (ellipsis
omitted) (quoting De Lovio v. Boit, 7 F.Cas. 418,
444, F.Cas. No. 3776 (C.C.D. Mass. 1815)).
[T]here are few 'clean lines between maritime and non10
maritime contracts.'" Folksamerica Reinsurance
Co. v. Clean Water of N.Y., Inc., 413 F.3d 307, 311 (2d
Cir. 2005) (quoting Kirby, 543 U.S. at 23). "
The boundaries of admiralty jurisdiction over contracts are
conceptual rather than spatial, and defined by the purpose of
the jurisdictional grant--to protect maritime commerce."
Id. (citations omitted). " [W]hether a contract
is a maritime one . . . 'depends upon the nature and
character of the contract,' and the true criterion is
whether it has 'reference to maritime service or maritime
transactions.'" Kirby, 543 U.S. at 23-24
(ellipsis omitted) (quoting N. P. S.S. Co. v. Hall Bros.
Marine Ry. & Shipbuilding Co., 249 U.S. 119, 125, 39
S.Ct. 221, 63 L.Ed. 510 (1919)). Our inquiry focuses on
" whether the principal objective of a contract is
maritime commerce." Id. at 25. "
Therefore, the contract's subject matter must be our
focal point." Folksamerica, 413 F.3d at 312.
[A]dmiralty jurisdiction will exist over an insurance
contract where the primary or principal objective of the
contract is the establishment of 'policies of marine
insurance.'" Id. at 315 (quoting Ins.
Co. v. Dunham, 78 U.S. (11 Wall.) 1, 35, 20 L.Ed. 90
(1870)). " [W]hether an insurance policy is marine
insurance depends on 'whether the insurer assumes risks
which are marine risks.'" Id. at 316
(quoting Jeffcott v. Aetna Ins. Co., 129 F.2d 582,
584 (2d Cir. 1942)). " [A]n insurance policy's
predominant purpose, as measured by the dimensions of the
contingency insured against and the risk assumed, determines
the nature of the insurance." Id. at 317
(quoting Acadia Ins. Co. v. McNeil, 116 F.3d 599,
603 (1st Cir. 1997)). Thus, " [u]ltimately, coverage
determines whether a policy is 'marine insurance,'
and coverage is a function of the terms of the insurance
contract and the nature of the business insured."
question of whether an insurance contract is subject to the
court's admiralty jurisdiction " ha[s] implications
beyond conferring federal jurisdiction." Id. at
310. In particular, " [w]hen a contract is a maritime
one, and the dispute is not inherently local, federal law
controls the contract interpretation." Kirby,
543 U.S. at 22-23.
federal law, a marine insurance contract is subject to "
the federal maritime doctrine of uberrimae fide, or
utmost good faith." Folksamerica, 413 F.3d at
310; see also Knight v. U.S. Fire Ins. Co.,
804 F.2d 9, 13 (2d Cir. 1986) (" [T]he substantive law
governing marine insurance . . . . [includes the]
well-established [principle that] under the doctrine of
uberrimae fidei. . . the parties to a marine
insurance policy must accord each other the highest degree of
good faith." ). The doctrine is a recognition that
" the [insured] is more likely to be aware of . . .
information" that " materially affects the risk
being insured," N.Y. Marine & Gen. Ins. Co. v.
Tradeline (L.L.C.), 266 F.3d 112, 123 (2d Cir. 2001) ,
and that " [o]ften the insurer lacks the practicable
means to verify the accuracy or sufficiency of facts provided
by the insured for purposes of establishing the contractual
terms," 2 Thomas J. Schoenbaum, Admiralty and
Maritime Law § 19-14, at 404-05 (5th ed. 2011). For
example, the vessel to be insured may be at some great
distance on the high seas, impossible to inspect at the time
the application for insurance is filed. See Warren
J. Marwedel & Stephanie A. Espinoza, Dagger, Shield, or
Double-Edged Sword-: The Reciprocal Nature of the Doctrine
of Uberrimae Fidei, 83 Tul. L.Rev. 1163, 1168-69 (2009).
under the doctrine, " the party seeking insurance is
required to disclose all circumstances known to it which
materially affect the risk." Folksamerica, 413
F.3d at 311 (quoting Atl. Mut. Ins. Co. v. Balfour
MacLaine Int'l Ltd. (In re Balfour MacLaine Int'l
Ltd.), 85 F.3d 68, 80 (2d Cir. 1996)); see also
Knight, 804 F.2d at 13 (" Since the [insured]
is in the best position to know of any circumstances material
to the risk, he must reveal those facts to the underwriter,
rather than wait for the underwriter to inquire." ).
" If [the insured] acquires material information after
having applied for insurance, he is required to communicate
that information to the proposed insurer" as well.
Puritan Ins. Co. v. Eagle S.S. Co. S.A., 779 F.2d
866, 870 (2d Cir. 1985). Thus, " [t]he [insured] is
bound, although no inquiry be made, to disclose every fact
within his knowledge that is material to the risk." 2
Schoenbaum, supra, § 19-14, at 405-06. "
The standard for disclosure is an objective one, that is,
whether a reasonable person in the [insured's] position
would know that the particular fact is material."
Knight, 804 F.2d at 13.
Failure by the [insured] to disclose all available
information will allow the insurer to avoid the policy,"
regardless of " whether such omission is intentional or
results from mistake, accident, forgetfulness, or
inadvertence."  2 Schoenbaum, supra, §
19-14, at 406 ; see Sun Mut. Ins. Co. v. Ocean
Ins. Co., 107 U.S. 485, 510, 1 S.Ct. 582, 27 L.Ed. 337
(1883) (" The concealment, whether intentional or
inadvertent, . . . avoids the policy . . . . In respect to
the duty of disclosing all material facts, . . . [t]he
obligation . . . is one uberrimae fidei. The duty of
communication, indeed, is independent of the intention, and
is violated by the fact of concealment even where there is no
design to deceive." ); Puritan Ins. Co., 779
F.2d at 870-71; see also Catlin (Syndicate 2003) at
Lloyd's v. San Juan Towing & Marine Servs.,
Inc., 778 F.3d 69, 83 (1st Cir. 2015) (" Under
uberrimae fidei, when the marine insured fails to
disclose to the marine insurer all circumstances
known to it and unknown to the insurer which 'materially
affect the insurer's risk,' the insurer may void the
marine insurance policy at its option." (emphasis in
original) (quoting Windsor Mount Joy Mut. Ins. Co. v.
Giragosian, 57 F.3d 50, 55 (1st Cir. 1995))). However,
" [t]he principle of uberrimae fidei does not
require the voiding of the contract unless the undisclosed
facts were material and relied upon." Puritan,
779 F.2d at 871.
The Pollution Policy is a ...