Full opinion text
MEMORANDUM OPINION AND ORDER (1) DENYING ZURICH’S MOTION FOR SUMMARY JUDGMENT ON LATE NOTICE; (2) GRANTING IN PART AND DENYING IN PART FIREMAN’S FUND’S MOTION FOR SUMMARY JUDGMENT CONCERNING DOW’S FAILURE TO COMPLY WITH NOTICE PROVISIONS; (3) GRANTING IN PART AND DENYING IN PART TRAVELERS/AET-NA’S COUNTER-MOTION FOR SUMMARY JUDGMENT BASED ON THE LATE NOTICE PROVISIONS IN ITS POLICIES; (4) DENYING THE LONDON EXCESS INSURERS’ REQUEST IN THEIR JOINDER FOR SUMMARY JUDGMENT BASED ON THE LATE NOTICE PROVISIONS IN THEIR EXCESS POLICIES; (5) DENYING FIREMAN’S FUND’S MOTION FOR SUMMARY JUDGMENT ON VOLUNTARY PAYMENT; AND (6) DENYING DOW’S CROSS-MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF VOLUNTARY PAYMENT EDMUNDS, District Judge. This litigation arises out of an environmental insurance dispute. Dow seeks indemnification coverage under a series of comprehensive general liability (“CGL”) policies issued to it between 1944 and 1985 and indemnification coverage under excess coverage policies it began purchasing in 1955. Several of Dow’s primary insurers, Zurich, Fireman’s Fund, and Travelers/Aetna (collectively “Insurers”), have filed motions for summary judgment asserting that Dow’s notice of “occurrences,” “claims,” or “suits” was untimely as a matter of law and caused them prejudice as a matter of law thus precluding indemnification under Dow’s policies. Dow responds that Insurers are not entitled to summary judgment because: (1) they have not established that Dow’s notice was untimely as a matter of law; and (2) even if determined to be untimely, Insurers have not shown that they were prejudiced by Dow’s allegedly untimely notice as a matter of law. Fireman’s Fund has also filed a motion for summary judgment asserting that Dow is not entitled to. any indemnification for many of the claims relating to 7 of the 10 Final Sites because Dow breached the voluntary payments clause of its policies. Dow has filed a cross-motion on this issue arguing that: (1) Dow’s payments were not “voluntary;” and (2) even if determined .to be “voluntary,” Michigan law will require Insurers to show that Dow’s actions caused them material prejudice, and Insurers cannot show material prejudice. For the reasons stated below, this Court: (1) DENIES Zurich’s motion for summary judgment on late notice; (2) GRANTS IN PART and DENIES IN PART Fireman’s Fund’s motion for summary judgment concerning Dow’s failure to comply with notice conditions; (3) GRANTS IN PART and DENIES IN PART Travelers/Aetna’s counter-motion for summary judgment based on the late notice provisions in its policies; (4) DENIES the London Excess Insurers’ request in their Joinder for summary judgment based on the late notice provisions in their excess policies; (5) DENIES Fireman’s Fund’s motion for summary judgment on voluntary payment; and (6) DENIES Dow’s cross-motion for summary judgment on the issue of voluntary payment. Primary Insurers have established, as a matter of law, that Dow’s delayed notice actually prejudiced them with regard to claims involved at the Harris/Farley Street site and the Conaleo site but have not met their burden with regard to claims involved at the remaining sites. Questions of material fact regarding prejudice also preclude summary judgment on the issue of voluntary payment and the London Excess Insurers’ right to summary judgment on the issue of late notice. I. Standard for Summary Judgment Summary judgment is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R. Civ. P. 56(e). The central inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). After adequate time for discovery and upon motion, Rule 56(c) mandates summary judgment against a party who fails to establish the existence of an element essential to that party’s case and on which that party bears the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant has an initial burden of showing “the absence of a genuine issue of material fact.” Celotex, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265. Once the movant meets this burden, the non-movant must come forward with specific facts showing that there is a genuine issue for trial. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To demonstrate a genuine issue, the non-movant must present sufficient evidence upon which a jury could reasonably find for the non-movant; a “scintilla of evidence” is insufficient. Liberty Lobby, 477 U.S. at 252, 106 S.Ct. 2505. The court must believe the non-movant’s evidence and draw “all justifiable inferences” in the non-movant’s favor. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505. The inquiry is whether the evidence presented is such that a jury applying the relevant evidentiary standard could “reasonably find for either the plaintiff or the defendant.” Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505. II. Analysis A. Insurers’ “Late Notice” Motions for Summaiy Judgment Primary Insurers Zurich (3/28/49-3/28/50), Fireman’s Fund (11/19/56-4/1/76), and Travelers/Aetna (Travelers 1950-1956; Aetna 1976-1983,1983-1985) seek to avoid indemnification coverage for many of the claims at the Final Sites on the ground that Dow’s notice was untimely as a matter of law and caused them prejudice as a matter of law. Zurich’s motion addresses only the Cliffs-Dow site. Fireman’s Fund’s motion addresses each Final Site except the Brookhurst, Wyoming site. Travelers/Aetna’s motion addresses all ten Final Sites. Century has joined Travelers/Aetna’s motion and several reply briefs and has filed a separate reply. Century’s primary policies (1944H949) are implicated solely at the Cliffs-Dow site. Some Excess Insurers have filed Joinders. Fireman’s Fund’s motion has been joined by Interstate Fire & Casualty, Centennial Insurance Co., and Continental Casualty Co. Travelers/Aetna’s motion is joined by the AIG Defendants (American Home Assurance Co., Insurance Co. of the State of Pennsylvania, and Union Fire Ins. Co.), Century’s “Certain Defendants” (identified in Century’s 9/25/97 cross-motion for summary judgment), and the London Excess Insurers (identified in their Joinder) with respect to the Conalco and PPI Sites only. 1. Relevant Policy Language At issue here are the notice provisions for “occurrences” and “claims” or “suits” contained in the CGL primary and excess policies issued to Dow. There are some important language differences in the notice provisions contained in the primary as opposed to excess policies as well as some language differences in the 1983-1985 Aetna primary policies as opposed to the earlier Aetna primary policies. These differences are addressed below. Fireman’s Fund issued six CGL policies to Dow which were in effect from November 19, 1956 through April 1, 1976. As to “occurrences”, the early policies require notice “as soon as practicable” “upon the happening of an occurrence or an accident.” See FF Notice Br., Ex. 2. The policies in effect from 1964 through 1976 require notice of an occurrence or accident as soon as practicable “after such occurrence or accident has been reported to [Dow]’s insurance or legal department.” See FF Notice Br., Ex. 1. (Emphasis added). As to “claims” or “suits,” the policies uniformly provide that: “[i]f claim is made or suit is brought against the insured, the insured shall immediately forward to the Company or any of its authorized agents every demand, notice, summons or other process received by the insured or the insured’s representatives.” See FF Notice Br., Ex. 2. There is only one Zurich policy at issue here; a CGL policy issued to Dow which was in effect from March 28, 1949 to March 28, 1950. It similarly requires notice of an occurrence as soon as practicable and requires Dow to immediately forward to Zurich “every demand, notice, summons or other process” if “claim is made or suit is brought” against Dow. See Zurich Br., Ex. 3. Travelers’ CGL policies, covering the period from March 28, 1950 through November 19, 1956, likewise require notice of an occurrence as soon as practicable and require Dow to immediately forward any claim or suit brought against Dow. See Trav. Notice Br., Ex. 2. Aetna’s CGL policies issued to Dow covering the period from April 1, 1976 through April 1, 1983 contain language similar to that in Fireman’s Fund’s policies covering the period from 1964 through 1976; i.e., they require notice of an occurrence “as soon as practicable, after such occurrence or accident has been reported to the insured’s corporate insurance or legal department at its office in Midland, Michigan." See Trav. Notice Br., Ex. 1. (Emphasis added). Aetna’s 1976-1983 policies also require that Dow “immediately forward” to it “every demand, notice, summons or other process received” by Dow if a “claim is made or suit is brought” against Dow. Id. Aetna’s policies covering the period from April 1, 1983 through April 1, 1985 also contain an endorsement which modifies the above language as to notice of an occurrence as follows: Whenever the Manager of Liability Insurance in the Corporate Insurance Department, located at the General Office of the Dow Chemical Company at Midland, Michigan, 48640, has information from which the insured may reasonably conclude that an occurrence covered hereunder involves injuries or damages which, in event that the insured should be held liable, is likely to involve this policy, notice shall be sent to either the Aetna Casualty & Surety Company or Marsh & McLen-nan, (One Woodward Avenue, Detroit, Michigan 48226) as soon as practicable, provided, however, that failure to give notice of any occurrence which at the time of its happening did not appear to involve this policy but which at a later date, would appear to give rise to claims hereunder, shall not prejudice such claim. (Emphasis added). Id. Dow’s excess policies generally provide that notice is not required unless it appears that the excess policies are likely to be implicated. The London Excess Insurers’ policies in effect from 1956 through 1958 provide that Dow is to give notice when it has “knowledge of any occurrence likely to give rise to a claim hereunder.” See London Excess Insurers Joinder, Ex. H. The language contained in the London Excess Insurers’ policies in effect from 1958 through 1979 is substantially similar to that contained in the Aetna 1983-1985 CGL primary policies; i.e., Dow is to give notice when it “has information from which the Assured may reasonably conclude that an occurrence covered hereunder involves injuries or damages which, in the event that the Assured should be held liable, is likely to involve this Policy.” Id. (Emphasis added). Additional London excess policies in effect from 1975 through 1986 also have substantially similar notice provisions. Id. The vast majority of the London excess policies; i.e., those in effect from 1958 through 1986, contain a saving provision which duplicates that found in the Aetna 1983-1985 primary policies and provides that “failure to give notice of any occurrence which at the time of its happening did not appear to involve this policy but which, at a later date, would appear to .give rise to claims hereunder, shall not prejudice such claims.” Id. (Emphasis added). 2. The Insurers’ Late Notice Defense In their motions for summary judgment, Insurers argue that Dow’s notice to them of occurrences, claims and suits was untimely, and thus Dow breached a condition precedent to coverage. Insurers further argue that Michigan law presumes prejudice under circumstances such as these where there are long delays before notice is provided; and, even if prejudice is not presumed, Insurers have established that Dow’s untimely notice resulted in actual prejudice thus precluding indemnification under Dow’s policies. Travelers/Aetna and Century further argue that notice to one of the primary insurers is not sufficient to obviate untimely notice and its resulting prejudice as to another. Dow responds that Insurers have not met their summary judgment burden by showing, as a matter of law, that Dow’s notice was untimely or that its notice, if found to be untimely, caused Insurers to suffer actual prejudice to their'position. Specifically, Dow argues that: "(1) Michigan law requires only that notice be próvided within a reasonable time under the circumstances; (2) Dow’s notice to Primary Insurers Was reasonable as to the third-party suits at issue because it timely notified at least one of its primary insurers; (3) Dow’s notice to Primary Insúr-ers was reasonable as to the governmental agency actions because substantial uncertainties existed regarding the nature of Dow’s potential underlying liability and whether such liability was covered by its insurance policies and Dow gave notice as soon as it determined the uncertainties had disappeared; (4) Dow’s notice to Excess Insurers was timely because it was given once it appeared that coverage was likely to be implicated; (5) even if Dow’s notice was untimely, Michigan law will not presume prejudice; and (6) Insurers have not demonstrated that they were actually prejudiced by Dow’s untimely notice. 3. Michigan Law Requires An Insurer to Establish that Notice was Untimely and that It Suffered Actual Prejudice to Its Position as a Result of the Delayed Notice a. Typical Primary Policy Notice Provisions Require Notice Within a Reasonable Time Michigan law recognizes that the notice provisions in an insurance policy are designed to “allow the insurer to make a timely investigation ... in order to evaluate claims and to defend against fraudulent, invalid, or excessive claims.” Wendel v. Swanberg, 384 Mich. 468, 477, 185 N.W.2d 348 (1971). Michigan law construes policy language requiring the insured to give notice “immediately” or “as soon as practicable” as requiring notice “within a reasonable time.” Burgess v. American Fidelity Fire Ins. Co., 107 Mich.App. 625, 628, 310 N.W.2d 23, 25 (1981); Kennedy v. Dashner, 319 Mich. 491, 493-94, 30 N.W.2d 46, 47 (1947). Accordingly, notice is timely under Dow’s typical primary CGL policies if it is, provided within “a reasonable time, dependent upon the facts and circumstances of the case.” Motor State Ins. Co. v. Benton, 35 Mich.App. 287, 290, 192 N.W.2d 385, 387 (1971) (quoting Kennedy, 319 Mich. at 494, 30 N.W.2d at 47). See also Kravat v. Indemnity Ins. Co. of N. Amer., 152 F.2d 336, 338 (6th Cir.1945) (applying Michigan law). b. Notice Provisions Under the Excess Policies Require A Different Interpretation As the court observed in Employers’ Liability Assurance Corp., Ltd. v. Hoechst Celanese Corp, “[wjith multiple sites, multiple insurers, and multiple policies providing various layers of excess insurance for varying periods of time,” it is important to recognize that “the terms of the notice clauses of the excess policies need to be sharply distinguished from the notice provisions of primary policies.” 43 Mass.App.Ct. 465, 684 N.E.2d 600, 605 (1997). In this case, we also need to distinguish the notice language contained in Aetna’s 1983-1985 primary policies from the provisions contained in the earlier Aetna policies. In contrast to the typical notice provision of a primary CGL policy, many of the notice provisions in Dow’s excess policies require the insurer to show that the insured “had information or had formed an opinion at a particular time that a claim would implicate” the policy and “then failed to notify the insurer for an unreasonable period thereafter.” Id. at 606. The “rubbery language” of these provisions is designed to give “the insured some leeway or discretion in forming a judgment about when ... protection is implicated.” Id. This intent is elucidated in the “saving proviso” also contained in these notice clauses; i.e., “failure to give notice of any occurrence which at the time of its happening did not appear to involve this policy but which, at a later date, would appear to give rise to claims hereunder, shall not prejudice such claim.” Id. This language precludes Insurers from using hindsight to support a late notice defense. As the Hoechst court further observed, in the context of excess policies: this looseness responds to the realities of the situations that most often confront the policyholders in these environmental eases. Take remediation. The nature and causes of environmental threats may not be instantly apparent. The contemplated costs of cleanup may vary as findings are progressively made and technical analysis proceeds. The unexpected regularly obtrudes. The attitudes and requirements of regulatory agencies are not constant and the changes and variations must affect the, estimates. Id. Dow’s excess policies generally provide that notice is not required unless it appears that the excess policies are likely to be implicated. The vast majority of the London excess policies; i.e., those in effect from 1958 through 1986, have notice clauses with “rubbery language” and saving provisions substantially similar to that discussed in Hoechst. Accordingly, to succeed on their late notice motions, Excess Insurers with policies containing this language must establish, without the benefit of hindsight, that Dow was required to provide notice and did not do so within a reasonable time. The same applies as to Aetna’s 1983-1985 primary policies. c. The Reasonableness of Dow’s Notice Decisions is Not the Proper Inquiry When Determining Timely Notice Under Dow’s Typical Primary CGL Insurance Policies The Court is not persuaded by Dow’s argument that the reasonableness of its notice decisions is the proper inquiry when determining whether Dow provided timely notice to Insurers. Dow takes Michigan’s “timely notice is notice that is provided within a reasonable time” principle and redirects the reasonableness question. Rather than focusing on when the insured had notice of an occurrence, claim or suit; when the insured notified the insurer; and asking whether the insurer was prejudiced by any delay in providing notice, Dow urges the Court to focus instead on the reasonableness of the insured’s notice decisions. Dow argues that its notice decisions regarding third party suits were reasonable because it reasonably concluded that it could select which of its primary insurers it would notify and reasonably concluded that that primary insurer would then seek contribution from the other insurers if it so desired. Dow further argues that its notice decisions regarding governmental agency environmental actions were reasonable because it gave notice to Insurers once it determined that the legal uncertainties and coverage questions, which existed when these actions first arose, were sufficiently settled and coverage was available. Dow also argues that its notice decisions as to these governmental agency actions were reasonable because Insurers’ routine and repeated coverage denials; i.e., asserting PRP letters were not “suits” for “damages”, led Dow to reasonably conclude that notice to Insurers would be futile prior to the time it finally did provide notice. This Court rejects Dow’s approach to the timely notice issue. Dow has not persuaded this Court that the Michigan Supreme Court would interpret the typical notice language provided in its primary CGL policies in the manner Dow proposes. Dow points to no policy language or case law that supports its argument. that notice provided to one primary insurer suffices as notice to all other insurers and precludes those other insurers from successfully asserting a late notice defense to their duty to indemnify. Dow cites no Michigan case law which interprets the relevant notice language as permitting the insured to unilaterally decide whether and when coverage is available and to unilaterally decide which of its insurers it will notify simply because those decisions may be “reasonable” under the circumstances. Under Dow’s approach, an insurer would be obligated to provide indemnification coverage no matter how long it took the insured to decide the law was sufficiently settled and coverage was available and no matter how much prejudice this delay actually caused the insurer. To adopt Dow’s approach, the Court would be forced to ignore the interests the notice provisions were designed to protect. This is something it cannot do. The prejudice requirement was created to prevent forfeitures while also honoring the protections the notice provisions provide to insurers. Dow’s reliance on decisions from states that do not require the insurer to show that it has been prejudiced by the insured’s late notice to avoid indemnification, is misplaced. See Avondale v. Travelers Indemnity, 774 F.Supp. 1416, 1429 (S.D.N.Y.1991); Ins. Co. of N. Amer. v. Waldroup, 462 F.Supp. 161, 162 (M.D.Ga.1978). The decisions Dow cites demonstrate that, in states where there is no prejudice requirement to protect against forfeiture, an insured’s reasonable and justifiable belief of non-coverage serves as a “mitigating circumstance” which will excuse delayed notice. See Avondale, 774 F.Supp. at 1431. Michigan law, which excuses late notice when the insurer fails to show that the late notice actually prejudiced its position, does not also excuse late notice based solely on the insured’s unilateral belief that coverage was unavailable. To construe the primary CGL notice clauses it in the manner Dow proposes; i.e., to include the broader, more flexible language typically found in Dow’s excess policies or that found in Dow’s 1983-1985 Aetna primary CGL policies, would require the Court to effectively rewrite the notice provisions. „This too is something the Court cannot do under Michigan law. This is not to say that Dow must provide notice of events that it did not know were “occurrences” at the time they occurred. Likewise, Dow is not precluded from showing how different policy language; i.e., that contained in Dow’s 1983— 1985 Aetna primary CGL policies and Dow’s excess insurance policies, may require the Court to consider the reasonableness of Dow’s conclusion that its policies were or were not implicated and Dow’s related decisions concerning whether and when it should provide notice to its insurers. d. Prejudice Requirement It is a well-established principle of Michigan law that untimely notice will not excuse an insurer’s obligation to indemnify unless it can prove it was actually and materially prejudiced by the insured’s delay. Wendel, 384 Mich. at 478-79, 185 N.W.2d at 353; Weller v. Cummins, 330 Mich. 286, 47 N.W.2d 612 (1951); Kleit v. Saad, 153 Mich.App. 52, 395 N.W.2d 8 (1985); Burgess, 107 Mich.App. at 628-29, 310 N.W.2d at 24-25. As the Wendel Court observed, Michigan law, which disfavors forfeitures, recognizes that “prejudice to the insurer is a material element- in determining whether notice is reasonably given (citation omitted) and the burden is on the insurer to demonstrate such prejudice.” Wendel, 384 Mich. at 478, 185 N.W.2d at 353. Accordingly, to succeed on their late notice defense and to avoid indemnification, Insurers must establish that: (1) Dow breached the notice provisions by not providing notice within a reasonable time; and (2) Dow’s breach caused the Insurers to suffer actual prejudice. The above general principles were recently reaffirmed by the Michigan Supreme Court. In Koski v. Allstate Ins. Co., 456 Mich. 439, 572 N.W.2d 636 (1998), the Court determined that untimely notice of a lawsuit, despite timely notice of the claim giving rise to the suit, barred coverage where the insurer showed that it was actually prejudiced by the delayed notice of the lawsuit. Initially, the Michigan Supreme Court observed that, although the notice provisions were conditions precedent, “it is a well-established principle that an insurer who seeks to cut off responsibility on the ground that its insured did not comply with a contract provision requiring notice immediately or within a reasonable time must establish actual prejudice to its position.” 572 N.W.2d at 639 (citing Weller v. Cummins, Wendel v. Swanberg, and Windt, Insurance Claims & Disputes (3d ed), § 3.05, p. 123) (emphasis added). The Court further observed that “[o]ne of the purposes of the provision requiring notice ... is to give the insurance company knowledge ... so that it can make a timely investigation in order to protect its interests .... It follows that if the insurance company received adequate and timely information of the accident or the institution of an action for the recovery of damages it is not prejudiced, regardless of the source of its information.” Id. (quoting Weller, 330 Mich. at 293, 47 N.W.2d 612) (emphasis added). The Koski Court then held that the insurer had established that its position had been prejudiced by the insured’s delay in notifying it about the suit until three months after entry of the default judgment because: (1) the delay precluded the insurer from contesting liability or damages, and (2) precluded the insurer from challenging entry of the default judgment. The Court observed that, as to (1) above, the insurer “never received any information before the default that plaintiff had been sued,” and there was nothing in the record indicating the insurer would have refused to defend the suit under a reservation of rights despite the insurer’s initial denial of the claim. Koski, 572 N.W.2d at 640. As to (2) above, the Court observed that, because the crucial 21-day period under Michigan law had lapsed before notice was provided, the insurer would have to establish extraordinary circumstances to set aside the default, and those extraordinary circumstances did not exist in Koski. Id. Koski teaches that an insured’s notice of an occurrence or a claim does not excuse a subsequent failure to timely notify the insurer of a suit that arises out of that same occurrence or claim. It likewise teaches that an insured cannot presume that a denial of a claim can be used to support a presumption that the insurer will also deny coverage for a subsequent lawsuit. More importantly, Ko-ski reaffirms the principle that Michigan law will not cut off the insurer’s responsibility to provide coverage under a policy unless it establishes “actual prejudice to its position.” Id., 572 N.W.2d at 639. (1) Michigan Law Does Not Presume Prejudice Based Solely on the Length of Delay in Providing Notice Contrary to the Insurers’ argument here, Michigan law does not presume the insurer has been prejudiced simply by observing the length of the delay in providing notice. Careful examination of Michigan precedent reveals that the courts have invariably found actual prejudice before allowing the insurer to avoid its duty to indemnify. This principle was recently illustrated in Ko-ski where the Court required the insurer to establish actual prejudice to its position despite the insured’s three year delay in providing it with notice of the suit for which it was seeking coverage. Insurers’ reliance on language to the contrary in West Bay Exploration v. AIG Specialty Agencies, 915 F.2d 1030, 1037 (6th Cir.1990) is misplaced. West Bay quotes language from the Michigan Supreme Court’s decision in Wehner where it surveyed decisions from other jurisdictions and quoted language from a California decision, Purefoy v. Pacific Automobile Indemnity Exchange, 5 Cal.2d 81, 53 P.2d 155 (1935). Despite quoting language from Purefoy about presuming prejudice in some late notice situations, the Wehner Court did not presume prejudice simply due to the length of delay in that case. Rather, it held that the insurer had presented sufficient evidence to make out a prima facie case of prejudice which the insured failed to rebut. Accordingly, because it was undisputed, the Court concluded that the trial court had erred in submitting the issue of prejudice to the jury. To establish it was prejudiced by the insured’s untimely notice, the insurer in Weh-ner had presented undisputed evidence that the accident giving rise to the lawsuit was not reported to the insurer until after the suit was filed; the insurer had no opportunity to inspect the damaged automobile or to investigate the accident prior to the suit being filed; and that had timely notice been provided, the insurer would have followed its usual procedure of inspecting the automobile, interviewing witnesses, investigating questions of liability and damages and, if feasible, pursuing the possibility of settlement. The insured did not provide evidence that controverted the insurer’s prejudice evidence, and thus the Michigan Supreme Court held that the issue of prejudice was not in dispute and should not have gone to the jury. To the extent CPC Int’l, Inc. v. Aerojet-General Corp., 825 F.Supp. 795, 814-15 (W.D.Mich.1993) reaches a different conclusion, this Court believes that the holding in that case regarding the ability to presume prejudice under Michigan law is incorrect. Careful examination of the West Bay and Wehner decisions, and the more recent Koski decision by the Michigan Supreme Court, does not support the position that prejudice may be presumed simply by considering the length of the delay in providing notice. Under Michigan law, the delay in providing notice is one factor to be considered when determining whether the insurer has established actual prejudice to its position. See Upjohn Co. v. Aetna Casualty and Surety Co., 768 F.Supp. 1186, 1203, n. 21 (W.D.Mich.1990) (where the court observed that “[e]ven excessive delay will not preclude coverage unless the insurer can demonstrate actual prejudice.”). Courts in other jurisdictions have observed that adopting a presumption of prejudice simply due to the length of a delay in notice “would, in effect, constitute a retreat to a mode of interpretation of insurance policies which invites technical forfeitures, and would conflict sharply with the view, previously expressed [by the state court and legislature], that forfeitures should only occur upon a showing of actual prejudice to an insurer’s interests.” Hoechst, 684 N.E.2d at 609 (internal quotes and citations omitted). Michigan law, which requires that the insurer establish actual prejudice to its position, comports with “[t]he rule that is emerging in a majority of jurisdictions;” i.e., “that late notice does not relieve the insurer of its duties under the policy unless the insurer is prejudiced as a result of the. delay in receiving notice.” Ostrager & Newman, Handbook on Insurance Coverage Disputes, § 4.02[e][2] (8th ed.1995). In sum, “[t]he function of a notice requirement is to protect the insurance company’s interests from being prejudiced. Where the insurance company’s interests have not been harmed by a late notice, even in the absence of extenuating circumstances to excuse the tardiness, the reason behind the notice condition in the policy is lacking, and it follows neither logic nor fairness to relieve the insurance company of its obligations under the policy in such a situation.” Hoechst, 684 N.E.2d at 607 (internal quotes and citations omitted). This is true whether the policyholder is sophisticated or unsophisticated. (2) The Michigan Supreme Court Would Not Distinguish Between Sophisticated and Unsophisticated Policyholders Insurers have not persuaded this Court that there is a principled reason for the Michigan Supreme Court to distinguish between sophisticated and unsophisticated policyholders thus justifying waiver of the prejudice requirement for sophisticated policyholders. As one court accurately observed, insurance companies are also sophisticated parties. Therefore, adopting the rule Insurers advance merely states a preference between two sophisticated parties; it does not state a rationale for that preference. See Federated Mut. Ins. Co. v. State Farm Mut. Aut. Ins. Co., 282 Ill.App.3d 716, 725, 218 Ill.Dec. 143, 668 N.E.2d 627, 632-33 (1996). (3) Prejudice Defined In West Bay, the court observed that “[prejudice wiU be found where the delay ‘materially’ impairs an insurer’s ability to contest its liability to an insured or the liability of the insured to a third party.” 915 F.2d at 1036-37. It clarified that “Michigan law does not require an insurer to prove that but for the delay it would have avoided liability.” Id. at 1037 (emphasis added). It further observed that “[w]hüe the question of prejudice is generaUy to be left to the trier of fact, where the facts are so clear that one conclusion only is reasonably possible, the question is one of law.” Id. (internal quotes and citation omitted). Dow claims that Insurers cannot establish actual prejudice to their position by simply asserting that Dow’s delay in providing notice created lost opportunities. This Court agrees. An insurer’s bald assertion that -witnesses have died, documents have been lost or destroyed, or opportunities have been lost is insufficient to show actual prejudice to its position as required under Koski. If the function of the prejudice requirement is to protect the insurer’s interests from being prejudiced, then the insurer must come forward with proof that its interests were actually prejudiced; not speculation that its interests were “possibly” prejudiced. See Hoechst, 684 N.E.2d at 607, 609. Accordingly, the insurer must identify “the precise manner in which its interests have suffered.” Id. at 608. See also Canron Inc. v. Federal Ins. Co., 82 Wash.App. 480, 918 P.2d 937, 943 (1996) (where the court observed that an insurer’s “lost opportunity” argument “would obviate the need to show actual prejudice” and therefore is contrary to state law which requires such proof). In determining whether an insurer’s position has actually been prejudiced by the insured’s untimely notice, courts consider whether the delay has materially impaired the insurer’s ability: (1) to investigate liability and damage issues so as to protect its interests; (2) to evaluate, negotiate, defend, or settle a claim or suit; (3) to pursue claims against third parties; (4) to contest the liability of the insured to a third party; and (4) to contest its liability to its insured. See Upjohn, 768 F.Supp. at 1205; West Bay, 915 F.2d at 1036-37. “Courts have also considered whether the insurer, after receiving late notice, acted promptly to protect its interests and those of its insured.” Upjohn, 768 F.Supp. at 1205 (citing Burgess, 107 Mich.App. at 629-30, 310 N.W.2d 23; Bibb, 44 Mich.App. at 446, 205 N.W.2d 495). Michigan courts have also observed that prejudice cannot be established “if the insurance company received adequate and timely information of the accident or the institution of an action for the recovery of damages ..., regardless of the source of its information.” Koski, 572 N.W.2d at 639 (quoting Weller, 330 Mich. at 293, 47 N.W.2d 612). An insurer must do more than simply claim that evidence was lost, physically altered, or has otherwise become unavailable and that witnesses have died, disappeared, or their memories have faded. It must establish what is in fact lost by the missing evidence, how this prejudices its position, and why information available from other sources is inadequate. See Kennedy v. Dashner, 319 Mich. 491, 494, 30 N.W.2d 46 (1947) (where the Court rejected the insurer’s argument that its rights were prejudiced by a lost opportunity to investigate a claim and to adequately prepare a defense when the plaintiffs attorney had notified the defendant’s insurer about an accident shortly after it had occurred and “an inquiry at the local police department would have disclosed considerable information with respect to the claim”); Christopher v. Hartford Ins. Group, Inc., 1992 U.S. Dist. LEXIS 21640, *6-7 (E.D.Mich. July 1, 1992) (where the court, applying Michigan law, rejected the insurers’ arguments that the insured’s pre-notice litigation efforts and the state’s substantial pre-notice clean-up efforts at the site prejudiced their ability to investigate liability and damage issues because the insurers had not offered any specifics as to how any litigation decisions had prejudiced them and, furthermore, had not “shown that the delay in notice caused a loss of investigatory/documentary evidence relating to the condition of the facility at the time of clean-up, or that any loss of such evidence has made it impossible for them to make an adequate investigation as to the facility and its hazardous waste problems.”). See also United Technologies Corp. v. American Home Assur. Co., 989 F.Supp. 128, 141 (D.Conn.1997) (where the court observed that “[f]or purposes of summary judgment, it is not sufficient for [the insurer] to merely state it was prejudiced without specifically identifying how it was prejudiced and articulating with greater precision why [the insured’s] documentation is insufficient to cure such prejudice”); Hoechst, 684 N.E.2d at 608; Chemical Leaman Tank Lines, Inc. v. Aetna Cas. and Sur. Co., 89 F.3d 976, 996 (3rd Cir.1996), cert. denied sub. nom., Jackson v. Chemical Leaman Tank Lines, Inc., — U.S. —, 117 S.Ct. 485, 136 L.Ed.2d 379 (1996). As one court recently observed: Delayed notice which interferes with an insurer’s ability to evaluate or investigate, as to coverage defenses or as to liability, may indeed cause actual prejudice. Lost witnesses or documents, or changes to the physical site, may affect the ability to investigate. However, prejudice will not ordinarily be presumed; what is lost or changed must be material, and not otherwise available or subject to reasonable reconstruction. Claims of prejudice require affirmative proof.... It is not sufficient merely to allege prejudice; an insurer must demonstrate specifics. Canron, 918 P.2d at 943. Insurers must also establish that the missing evidence was lost between the time the insured should have provided notice and the time it gave notice. Evidence lost before the insured’s duty to provide notice arises cannot be used to establish prejudice to the insurer’s position because, under those circumstances, both parties are equally disadvantaged by the missing evidence. See Chemical Leaman, 89 F.3d at 996 (where the court observed that “[b]eeause 1984 was the earliest practicable date by which Chemical Leaman could have given notice to the [insurer], the [insurer’s] assertions that potential valuable evidence was lost prior to 1984 are irrelevant.”). Moreover, an insurer’s claims of prejudice regarding a lost opportunity to evaluate, negotiate, defend, or settle a claim or suit must be supported by more than the insurer’s bald assertion that the opportunity to do so has been lost. The insurer must present evidence which establishes that its position was actually prejudiced because the insured’s delay materially impaired its ability to perform these functions. The same is true for an insurer’s claims of prejudice because of a lost opportunity to participate in remediation efforts. When evaluating claims of prejudice based on a lost opportunity, Michigan courts take into consideration whether the insurer, after receiving late notice, acted promptly to protect the interests it claims impaired by the insured’s late notice. See Burgess, 107 Mich.App. at 629-30, 310 N.W.2d at 25 (where the court observed that “[t]o have been deprived of an opportunity to defend, ..., may or may not have prejudiced the rights of the insurance carrier_such prejudice does not become material where the carrier, upon notice, does not act or properly act to protect its interest and/or that of its insured. Such prejudice was not attributable, in its ultimate sense, to the insured’s failure to give notice of suit, but rather to the insurance carrier’s failure to act upon receiving notice”); Bibb, 44 Mich.App. at 446, 205 N.W.2d at 498. Courts in other jurisdictions likewise recognize this principle. See Hoechst, 684 N.E.2d at 608 (where the court observed that “[w]e do not accept as a generalization that an insured’s assumption of liabilities before (delayed) notice is in itself conclusive that the insurer has suffered prejudice .... The issue of prejudice by reason of these agreements is one of fact (like that of notice), and the insurers, having chosen not to investígate even after notice, have not come near any demonstration that the agreements were other than sound in a business sense”). See also Maine Drilling & Blasting v. Ins. Co. of N. Amer., 34 F.3d 1, 5 (1st Cir.1994); Canron, Inc., 918 P.2d at 943 (where the court held “[t]o establish actual prejudice resulting from delayed notice, an insurer must adduce affirmative proof of an advantage lost or disadvantage suffered as a result of the delay, which has an identifiable detrimental effect on the insurer’s ability to evaluate or present its defenses to coverage or liability”). With these principles in mind, the Court now addresses whether Insurers have established, as a matter of law, that: (1) Dow’s notice of an occurrence, claim or suit was untimely; and (2) Dow’s delay in providing notice actually prejudiced the Insurers’ position as to the underlying claim or suit at issue at a Final Site. 4. Application of Standard — Site by Site/ Insurer a. Brookhurst and Monahans Final Sites The only remaining Primary Insurer on the risk at the Brookhurst final site is Fireman’s Fund, and it does not address this site in its motion for summary judgment based on late notice. The Monahans, Texas final site is no longer at issue in this litigation. See 4/10/98 Mem. Op. b. Harris/Farley Street Final Site The Harris/Farley Street disposal site, which comprises approximately two acres of land, was operated by Davis Enterprises. Dow never owned or operated this site but allegedly shipped styrene tars to the site for a few months in 1958. The only claim and Insurer at issue at this site involve a September 3, 1982 Environmental Protection Agency (“EPA”) PRP letter to Dow and Fireman’s Fund’s 11/19/56 — 7/30/70 primary policies. Dow received the PRP letter in 1982, entered into an initial consent order with the EPA in 1983, entered into a second consent order in 1985, and completed remediation at this site on July 29, 1986. See Dow time line; FF Notice Br, Exs. 33, 39, 41. Dow should have notified Fireman’s Fund within a reasonable time after receipt of this 1982 PRP letter but did not do so. Dow did not notify Fireman’s Fund of this 1982 suit until it filed its November 24, 1993 counter-claim in this action. Accordingly, Fireman’s Fund has met its burden by establishing, as a matter of law that Dow’s notice was untimely. This Court further finds that Fireman’s Fund has met its burden by establishing, as a matter of law, that Dow’s delay in providing notice actually prejudiced it by materially impairing Fireman’s Fund’s ability to pursue contribution actions against other responsible parties at this site. Dow does not dispute that there were other PRP’s at this site from whom it could have sought contribution and admits that it tried unsuccessfully to convince at least one PRP to participate in site remediation activities. See Dow Br. at 61, Dow Exs. 166, 153 at 187-89. It is also undisputed that Dow never enforced any contribution rights against any other PRP at this site. Dow asserts that it decided not to pursue contribution actions, despite the possibility of recovery, because it believed that recovery, if any, would not justify the expense of litigation. See Dow. Br. at 61, Dow Ex. 153 at 415-16. This explanation, however, is insufficient to defeat Fireman’s Fund’s evidence that Dow’s delayed notice of the 1983 EPA PRP letter and its pre-notice conduct prejudiced Fireman’s Fund’s ability to seek contribution from other PRP’s at this site. Dow was not entitled to unilaterally dispose of Fireman’s Fund’s claims against third parties. Accordingly, Fireman’s Fund is entitled to summary judgment as to this site. c. Hartley & Hartley Final Site The Hartley & Hartley site consists of a landfill owned and operated by Hartley & Hartley from 1955 to 1978. Dow never owned or operated the facility but sent wastes to it for disposal from 1958 to 1978. At issue here are Fireman’s Fund’s primary policies for the period from 11/19/56 through April 1,1976 and Aetna’s primary policies for the period covering April. 1, 1976 through April 1, 1985. Also at issue are the following three claims: (1) a March 1, 1994 Michigan Department of Natural Resources (“MDNR”) PRP letter to Dow; (2) a June 28, 1994 MDNR lawsuit against Dow; and (3) a June 30, 1994 private lawsuit brought by Waste Management against Dow. Dow notified Fireman’s Fund and Aetna of the first claim on March 16, 1994, the second claim on August 3, 1994, and the third claim of September 12, 1994. The first two claims settled in January 1995, and the third claim settled on May 30, 1997. Fireman’s Fund and Aetna do not allege that notice of these claims was untimely or that they were prejudiced by any delayed notice of these claims. Rather, Insurers claim Dow had knowledge of, and thus should have provided notice of, an “occurrence” in 1969; twenty-five years before any governmental or private action involving environmental clean-up at the site was asserted against Dow. Insurers argue that they have established, as a matter of law, that Dow’s delayed notice of this alleged “occurrence” caused them to suffer actual prejudice thus entitling them to summary judgment. This Court disagrees. Insurers’ assert that Dow had notice of an occurrence at the Hartley & Hartley site at least by 1969 when Arlow Boyce, a MDNR employee, allegedly advised the Dow Board of Directors that its wastes were being burned rather than land filled by Hartley & Hartley, thus contaminating that site and the adjoining Tobico Marsh. Insurers further claim that, by 1970, Dow had water samples showing increased chloride levels in the groundwater at this site and chlorides were one of the sources of groundwater contamination at this site identified by the MDNR as requiring remediation. As this Court previously recognized in its 4/10/98 Mem. Op. at 40-41, Dow has presented evidence which disputes Arlow Boyce’s testimony and supports its claim .that the increased chloride levels in the water samples from the Tobico Marsh area were not serious, were attributed to the disposal of bine products originating from an oil field service company and not Dow, and were unrelated to the groundwater contamination at issue in the three 1994 claims regarding this site. Moreover, as Dow points out, in 1969 and 1970 when these events allegedly occurred, there were no strict liability environment laws making Dow liable for cleaning-up contamination caused by a licensed landfill facility which it never owned or operated. Accordingly, this Court finds that Insurers have not established, as a matter of law, that Dow’s insurance or legal department had notice of an occurrence in 1969 or 1970 and that Dow failed to timely notify Insurers of that occurrence; thus, there is no need to address the Insurers’ arguments that Dow’s delayed notice of a 1969-1970 occurrence caused them to suffer actual prejudice as to the three 1994 claims at issue here. d. Midland, Texas Final Site The Midland, Texas site was operated by Dow’s Dowell Division from 1952 to 1984, and from 1984 to 1993 by Dowell Sehlumberger, Inc. (“DSI”), a joint venture created by Dow and Sehlumberger in 1984. The Dowell Division used the facility as a base for oil and gas well enhancement services which were performed at its customer’s sites. ' Materials used in its operations, including hydrochloric acid, sand, cement and gasoline for the facility’s trucks, were stored in above-ground and underground storage tanks at the site. The site also had acid mixing facilities, an open-topped underground concrete tank, truck washes, maintenance shops, and a laboratory. The “acid plant” had a concrete loading pad, two sumps, a 500 gallon buried steel tank, an underground pipeline that was used to send acid plant wastewater to the underground concrete tank. The underground concrete tank operated from approximately 1955 to 1983. There is one claim at issue at this Midland, Texas site, the Charles White 1991 lawsuit. Also at issue are Travelers’ (1954— 11/19/56 policy period) and Fireman’s Fund’s (11/19/56 — 7/30/70 policy period) primary policies. As to the Charles White suit, Dow received a demand letter on September 5, 1991, and the complaint was filed on November 26, 1991. Dow provided Insurers with notice of the demand letter on September 25, 1991 and notice of the complaint on December 13, 1991. The lawsuit settled on December 1, 1995. Insurers contend that by 1985 Dow was aware of “oil contamination down to the water table” at the Midland site and that .by 1989 Dow was aware of the off-site groundwater contamination at issue at this site and failed to provide Fireman’s Fund and Travelers with timely notice of these “occurrences.” This Court concludes that Insurers have established, as a matter of law, that by 1989 Dow was aware of the off-site contamination at issue in the White litigation and failed to timely notify Insurers of this “occurrence.” Insurers present evidence that in 1989, as a result of DSI’s self-initiated environmental assessment program at the Midland site, “four underground fuel storage tanks and two underground truck wash bay separators were excavated and removed.” Trav. Notice Ex. 110. Subsequent investigations required by the State of Texas Water Commission (“TWC”) revealed chlorinated organic compounds in the groundwater in the vicinity of DSI’s Midland facility, and Mr. White, the owner of adjacent property, BJ Electric Meter Service, was informed at a December 18, 1989 meeting that samples from his well “indicated the presence of some organic constituents ... at levels above federally established drinking limits.” Id. at 2. Mr. White requested that DSI provide water to his BJ Electric Meter Service site, and DSI obliged Mr. White’s request. Id. See also Trav. Notice Ex. 114. Fireman’s Fund and Travelers argue that they have established, as a matter of law, that Dow’s delayed notice of the 1989 “occurrence” prejudiced them by materially impairing their ability: (1) to investigate liability and damage issues after the removal and destruction of underground storage tanks and other physical evidence from the site, memories have faded, witnesses have died, and documents have been lost or destroyed; (2) to participate in investigations, negotiations, and the settlement of the Texas Water Commission claims against DSI; and (3) to pursue claims against third parties in light of Dow’s 1984, 1988 and 1992 cost-sharing agreements with DSI. This Court disagrees. First, Insurers’ prejudice arguments that relate solely to the State of Texas claim against DSI are no longer relevant because that claim has been dismissed from this action. See 4/10/98 Mem. Op. at 56. Second, Insurers’ non-specific claims that witness have died, memories have faded and documents have been lost or destroyed are insufficient to establish prejudice. See United Technologies, 989 F.Supp. at 141; Hoechst, 684 N.E.2d at 608; Chemical Leaman, 89 F.3d at 996; Canron, 918 P.2d at 943. Travelers and Fireman’s Fund’s have not identified specific witnesses or documents that became unavailable after the time Dow should have but did not provide notice and have not otherwise established how any allegedly lost evidence is relevant to any issues in the White litigation. Chemical Leaman, 89 F.3d at 996. The Court is not persuaded by Fireman’s Fund’s straw man prejudice argument that Dow’s late notice somehow precluded it from producing documents on Dowell’s sale of surface impoundment liners. FF Br. at 27. As Dow points out, it has repeatedly informed Insurers that its investigation has not uncovered evidence that Dow or Dowell ever sold liners, numerous witnesses have testified to this fact,.and Dow has already produced documents regarding its use of temporary liners manufactured by others and used by Dow at sites other than Midland. Dow Notice Br, Ex. 148. Insurers also claim prejudice from physical alteration of the Midland site. Insurers cannot establish prejudice, as a matter of law, by referencing alterations made to the site after Dow’s notice in 1991; i.e., excavation of the surface impoundment in October, 1992 and backfill of that area in March, 1993; removal of northern septic tank in Fall, 1992 and backfill of that area in 1993; decommission and dismantling of acid plant during the summer of 1993; and removal, excavation and backfill of remainder of the acid plant in late 1993 and early 1994. See Upjohn, 768 F.Supp. at 1205; Burgess, 107 Mich.App. at 629-30, 310 N.W.2d 23; Bibb, 44 Mich.App. at 446, 205 N.W.2d 495. Insurers’ failure to independently investigate after notice casts doubt on the credibility of their “lost opportunity” arguments. Insurers’ remaining prejudice arguments are likewise unpersuasive. Insurers’ make much of the excavation and destruction of five underground storage tanks in 1989 and the backfill of the area in 1990. Despite the availability of detailed contemporaneous reports prepared for Dow regarding the removal of the storage tanks and related activity, Travelers and Fireman’s Fund assert that Dow’s removal and destruction of these storage tanks materially impaired their ability to prove that property damage from the discharge of pollutants from those tanks was not sudden and accidental thus precluding indemnification under their policies. Insurers rely on West Bay, 915 F.2d 1030, 1037 and an unpublished Sixth Circuit decision, Steelcase, Inc. v. American Motorists Ins. Co., 907 F.2d 151, 1990 WL 92636, *2 (6th Cir. July 3, 1990), to support their prejudice argument. Their reliance is misplaced. The prejudice holding in both West Bay and Steelcase hinges upon an assumption that the insurer has the burden of proving the pollution exclusion applies because discharges were not sudden and accidental. That assumption is in error. In a more recent decision, the Sixth Circuit has clarified that the insured has the burden of proving that the exception to the pollution exclusion applies. See Harrow Products, Inc. v. Liberty Mut. Ins. Co., 64 F.3d 1015, 1020 (6th Cir.1995) (where the court observed that “it would be strange” to force the insurer “to prove a negative” especially when the insured “is the party most likely to have the relevant information about its operations.”). As the Harrow court recognized, it is the insured, not the insurer, who must prove that discharges were sudden and accidental and that indemnification coverage is available. Accordingly, the rationale and holding in West Bay and Steelcase is seriously undermined. Likewise undermined. is the Steelcase court’s conclusion that a contemporaneous investigation of the excavation and destruction of storage tanks by an independent agent is “a poor substitute” for an insurer’s own investigation and is “insufficient to protect [insurers] from prejudice in their defense against [the insured]’s claim.” Steelcase, 1990 WL 92636 at *3. Prior analysis of the Midland site in connection with the pollution exclusion defense has already established that an insurer is not necessarily prejudiced when an independent investigator, rather than the insurer, conducts a contemporaneous investigation of the excavation and destruction of storage tanks and prepares a contemporaneous written report of its findings. At the Midland site, for example, Dow identified the 1989 discovery of holes in the underground storage tanks at issue-here as evidence of a sudden and accidental polluting event. This Court examined the written report of the tanks’ removal, which was prepared for Dow, and found that it refuted rather than supported Dow’s position; the Court granted Travelers’ motion for summary judgment based on its pollution exclusion as to the Midland site. See 4/10/98 Mem. Op. at 29-30. Thus, Travelers’ ability to avoid indemnification based on its pollution exclusion was not prejudiced by its “lost opportunity” to conduct its own contemporaneous investigation. This Court also rejects Fireman’s Fund’s argument that it has established prejudice, as a matter of law, simply because the report regarding the removal of the Midland underground storage tanks in 1989 does not contain information as to when releases and contamination occurred. Fireman’s Fund has not established whether and why this information cannot be obtained from other sources. See Christopher, 1992 U.S. Dist. LEXIS 21640 at *6-7; United Technologies, 989 F.Supp. at 141; Hoechst, 684 N.E.2d at 608 (where the court observed that “insurers are far from demonstrating material prejudice as [a] matter of law arising from lost evidence” when “recreation of what occurred at the site was reasonably feasible”); Canron, 918 P.2d at 943 (where the court observed that, to establish prejudice, the insurer must show that “what is lost or changed” is “material, and not otherwise available or subject to reasonable reconstruction.... It is not sufficient merely to allege prejudice; an insurer must demonstrate specifics.”). In the context of environmental insurance disputes where actual property “damage is not discovered until years after the pollution began,” the insured and insurer often use experts on hydrogeology and contaminant transport to determine how quickly discharged pollutants would have traveled through the soil and how and when soil and groundwater contamination would have occurred. Gelman Sciences, Inc. v. Fidelity & Casualty Co., 456 Mich. 305, 312, 329, 572 N.W.2d 617, 620, 628 (1998). The availability of this type of evidence easts doubt on Fireman’s Fund’s claim that Dow’s removal of the tanks precludes Fireman’s Fund’s ability to investigate the timing of releases and contamination. In sum, Insurers have not established prejudice as a matter of law with regard to the one remaining claim at the Midland site. e. Silresim Final Site The Silresim site is located in Lowell, Massachusetts and was owned and operated by Silresim Corporation from 1971 to 1977 as a chemical reprocessing and waste recycling facility. The site was never owned or operated by Dow, but Dow sent its wastes there from approximately 1974 through 1977. There are four remaining claims at this site and one primary insurer — Aetna (4/1/76— 4/1/85 primary policy period). The claims are: (1) August 22, 1983 PRP letter from the Commonwealth of Massachusetts; (2) December 9, 1983 lawsuit filed by the Commonwealth of Massachusetts; (3) August 22, 1983 PRP letter from the EPA; and (4) a May 8, 1989 demand letter to Dow from the EPA. The Massachusetts claims were settled in March of 1984, and the EPA claims were settled by virtue of an April 27, 1993 consent decree. Dow notified Aetna about these claims on November 24, 1993 when it filed its counterclaim in this action. Recently produced evidence, however, also reveals that Aetna was aware in 1985 of the 1983 EPA suit against Dow. See Dow’s 4/9/98 Supp. Mem., Exs. B and C. Aetna claims that Dow’s notice was untimely as -a matter of law, and Dow’s delayed notice prejudiced it, as a matter of law, because it deprived Aetna of the opportunity: (1) to participate in remedial planning, investigations, and clean-up which took place pre-notice; (2) to investigate the alleged causes of contamination as a result of extensive pre-notice removal activities at the site and the deaths of key witnesses; and (3) to participate in the defense and settlement of the Massachusetts and EPA claims as a result of Dow’s pre-notice settlement. ■This Court agrees with Aetna that Dow’s notice of the Massachusetts and EPA claims was untimely. It