Full opinion text
DECISION and ORDER FOSCHIO, United States Magistrate Judge. JURISDICTION On July 2, 1998, the parties to this action consented to proceed before the undersigned (Docket Item No. 123). The matter is currently before the court on Defendant’s motion for partial summary judgment filed on July 1, 1998 (Docket Item No. 120), and Plaintiffs motion for summary judgment filed October 30, 1998 (Docket Item No. 135). BACKGROUND Plaintiff commenced the above action on May 1, 1991, seeking declaratory relief that Defendant is obligated to defend and indemnify Plaintiff for costs expected and incurred with regard to the clean-up of hazardous waste contamination found at four sites located in Western New York, as well as ten personal injury actions related to the contamination found at one of the sites. On June 4, 1991, Defendant filed its answer, asserting affirmative defenses. On June 24, 1991, Defendant filed an amended answer. On August 25, 1995, Plaintiff moved to amend the Complaint. That request was granted on September 29, 1995 and, on October 4,1995, Plaintiff filed an Amended Complaint (Docket Item No. 83). On March 6, 1996, Defendant filed an answer to the Amended Complaint (Docket Item No. 87). Plaintiff, on February 26, 1998, moved for a protective order prohibiting Defendant from taking depositions of plaintiffs in the underlying state actions and for sanctions. (Docket Item No. 102). The undersigned denied that motion in a Decision and Order filed March 16, 1998 (Docket Item No. 109). On May 6, 1998, Plaintiff moved for permission to file a second amended complaint. That request was granted by stipulation and order filed June 22, 1998. On June 26, 1998, Defendant filed an answer to the second amended complaint. (Docket Item No. 115). On July 1, 1998, Plaintiff filed a motion for summary judgment (Docket Item No. 117), supported by the Affidavit of Jonathan A. Mugel, Esq. (Docket Item No. 118) with a Statement of Facts Believed to be Undisputed attached and accompanied by four volumes of exhibits, and a Memorandum of Law (Docket Item No. 119). Also on July 1, 1998, Defendant filed a motion for partial summary judgment (Docket Item No. 120), attached to which are a Statement of Undisputed Facts, the Affidavit of Michele L. Jacobson, Esq. (“Jacobson Affidavit”), and Exhibits, and accompanied by a Memorandum of Law (Docket Item No. 121) (“Defendant’s Memorandum in Support of Partial Summary Judgment”), and the Affidavit of Patricia H. Kelley (Docket Item No. 122) (“Kelley Affidavit”). On August 27, 1998, Plaintiff filed a Memorandum of Law in opposition to Defendant’s motion for partial summary judgment (Docket Item No. 125) (“Plaintiffs Memorandum in Opposition to Partial Summary Judgment”), the Affidavit of W. Russell Hurd (Docket Item No. 126) (“Hurd Affidavit in Opposition to Partial Summary Judgment”), the Affidavit of Jonathan A. Mugel, Esq., in Opposition to Partial Summary Judgment (Docket Item No. 127) (“Mugel Affidavit in Opposition to Partial Summary Judgment”), and a Response to Defendant’s Statement of Undisputed Facts (Docket Item No. 128). On September 4, 1998, Defendant filed a Memorandum of Law in Opposition to Plaintiffs summary judgment motion (Docket Item No. 130), and .a Response to Plaintiffs Statement of Facts Believed to be Undisputed (Docket Item No. 132). Also on September 4,1998, Defendant filed a cross-motion to strike Mugel’s affidavit submitted in support of Plaintiffs summary judgment motion, and the affidavit of Alec E. Milne, sworn to on October 30, 1992 and submitted in connection with Plaintiffs summary judgment motion (Docket Item No. 129). That motion was supported by a Memorandum of Law (Docket Item No. 131). According to a Stipulation and Order filed October 2, 1998 (Docket Item No. 133), the parties agreed that Plaintiff would withdraw the Mugel Affidavit submitted in support of Plaintiffs summary-judgment motion and submit in its place affidavits which attempt to remedy the objections Defendant raised in its motion to strike. Other responding papers were also to be amended to refer to the replacement affidavits, and resubmitted. On October 30,1998, Plaintiff filed a new summary judgment motion (Docket Item No. 135). The motion was accompanied by a Memorandum of Law (Docket Item No. 136) (“Plaintiffs Memorandum”), the Affidavit of Jonathan A. Mugel (“Docket Item No. 137”) (“Mugel Affidavit”), and the Affidavit of W. Russell Hurd (Docket Item No. 138) (“Hurd Affidavit”). By Stipulation and Order filed December 17, 1998 (Docket Item No. 141), the parties agreed that Plaintiff would submit a Supplemental Affidavit in support of its re-submitted motion for summary judgment and Defendant would resubmit a response to the motion. Accordingly, on December 18, 1998, Defendant filed a Memorandum of Law in Opposition to Plaintiffs re-filed summary judgment motion (Docket Item No. 142) (“Defendant’s Memorandum in Opposition to Summary Judgment”), and a Response to Plaintiffs Re-filed Statement of Facts in Support of Summary Judgement (Docket Item No. 143). On February 19, 1999, Plaintiff filed reply papers in further support of summary judgment, including a Reply Memorandum of Law (Docket Item No. 145) (“Plaintiffs Reply Memorandum”), and affidavits of several Burt employees. On February 19, 1999, Defendant also filed reply papers in further support of partial summary judgment, including a Reply Memorandum of Law (Docket Item No. .149) (“Defendant’s Reply Memorandum”), a Response to Plaintiffs Resubmitted Statement of Undisputed Facts (Docket Item No. 150) (“Defendant’s Response to Plaintiffs Statement of Undisputed Facts”), and a Supplemental Affidavit of Michele L. Jacobson, Esq. (Docket Item No. 151) (“Jacobson Reply Affidavit”). By letter filed January 4, 2001 (Docket Item No. 152), Plaintiffs counsel advised the court that pursuant to the parties stipulation filed October 2, 1998 (Docket Item No. 133), it was withdrawing its original summary judgment motion filed July 1, 1998 (Docket Item No. 117), along with the motion’s supporting papers (Docket Items Nos. 118, 119 and four volumes of exhibits). Plaintiffs counsel also advised that Defendant’s counsel had agreed to withdraw its papers filed on September 4, 1998 in response to Plaintiffs original summary judgment motion (Docket Items Nos. 130 and 132), as well as its cross-motion to strike filed September 4, 1998 (Docket Item No. 129), along with the memorandum of law in support of the motion (Docket Item No. 131). Oral argument was deemed unnecessary. Based on the following, the court finds that Burt is entitled to summary judgment finding Aetna issued to Moore comprehensive general liability policies which also covered Burt, including policy Nos. 01AL26334CM(Y), providing coverage for the period December 31, 1963 through December 31, 1965, 01AL042774CM(Y), providing coverage for the period December 31, 1965 through December 31, 1967, and 01AL143628CM(Y), providing coverage for the period December 31, 1967 through December 31, 1971. Burt is also entitled to summary judgment finding that Aetna has failed to establish policy No. 01AL143268CM(Y) was endorsed by a pollution exclusion. Aetna is entitled to summary judgment that it is not required to defend Burt with regard to the CERCLA actions relevant to the Pfohl Landfill or the Sleepy Hollow site, or the Cline I property damage action as Burt failed to timely notify Aetna as to the relevant occurrences and claims, thereby failing to meet a condition precedent to suit. Aetna is, however, required to defend Burt with regard to the CERCLA actions relevant to the Alltift Landfill and the Booth Oil Site, as well as all the private personal injury and property damage actions except Cline I. Aetna is not required to indemnify Burt as to any claim outside the coverage of the policies, including the loss of consortium claims asserted in the Ewert, Spink and Weigel actions, or to Ewert plaintiff Rosemary Spork or Cline II plaintiff Wagner, nor must Aetna provide a defense as to those claims. Finally, in the absence of any controlling precedent supporting Aet-na’s request for apportionment of defense costs, the court will not order that defense costs ultimately be apportioned between Burt and Aetna as to claims that are ultimately found to be outside the coverage period or insurance policies. FACTS Plaintiff Burt Rigid Box, Inc., f/k/a F.N. Burt Company, Inc. (“Burt”), is a corporation organized under the laws of Delaware with its principal office located in Cheekto-waga, New York. Burt maintains that from 1908 to 1983, it was owned by and insured through Moore Corporation Limited of Canada (“Moore”). Defendant, Travelers Property Casualty Corp., f/k/a Aetna Casualty and Surety Company (“Aetna”), is an insurance company which allegedly issued primary and excess comprehensive general liability insurance coverage to Burt as an additional insured under policies issued to Moore covering the period December 31, 1963 through December 31, 1971. The Complaint seeks a determination of Aetna’s obligation to defend and indemnify Burt with respect to suits by the State of New York and the United States of America, arising out of Plaintiffs alleged responsibility as a generator for chemical waste contamination and property damage allegedly resulting therefrom as a result of hazardous waste disposed of between December 31,1963 and December 31, 1971 at several sites in or near Buffalo, including the Pfohl Brothers Landfill (“the Pfohl Landfill”), the Booth Oil Landfill (“the Booth Oil site”), the Sleepy Hollow Campground (“the Sleepy Hollow site”), and the Alltift Realty Landfill (“the Alltift Landfill”), as well as to personal injury suits related to the contamination found at the Pfohl Landfill filed by persons who lived, worked or recreated near that site. It is undisputed that neither Burt .nor Aetna has been able to locate any of the relevant insurance policies Aetna allegedly issued to Moore covering Burt as an additional insured as a Moore subsidiary and on which Burt’s claims that Aetna must provide both a defense to the underlying legal actions and indemnification. The Underlying Claims In a letter dated March 20, 1985, the New York State Department of Environmental Conservation (“DEC”) informed Burt that it had been identified as a generator of hazardous wastes deposited at the Pfohl Landfill. Hurd Affidavit, Exhibit 1. The DEC’S March 20, 1985 letter (“the March 20, 1985 DEC letter”) specifically advised The Division of Environmental Enforcement of the New York State Department of Environmental Conservation is evaluating certain inactive hazardous waste disposal sites within the State which have been identified and listed in the registry of such sites prepared by the Department. Among the sites assigned to this Division is the Pfohl Brothers Landfill, Site # 915043, located in the Town of Cheektowaga, Erie County. Existing information indicates that this site was used for the disposal of wastes. Your company has been identified as a generator of wastes disposed of at this site. Id. The DEC also requested Burt provide certain information relevant to Burt’s activities regarding the Pfohl Landfill to assist the DEC’S investigation although no explicit legal claims were asserted against Burt at that time. Id. Burt was notified by the DEC in a letter dated March 14, 1986 that it was considered the generator of hazardous waste materials discovered in 18 drums which had been transported to the Sleepy Hollow site where they was deposited. Hurd Affidavit, Exhibit 18. Specifically, Burt was advised The investigation reveals that the waste materials in question were generated by the F.N. Burt Company and hauled and disposed of by the trucking concern known as Feitzhans and Maurer. The current landowners of the site upon which they sit are the Latello Brothers. Please be advised that under New York State inactive hazardous waste site law all three parties herein i.e. the generator, hauler (and former owner), and current owner are jointly and severally liable for this site. Id. As such, Burt was considered a responsible party regarding the Sleepy Hollow site. Id. In a consent order dated February 3, 1987, Burt agreed to undertake a clean-up of the Sleepy Hollow site. Hurd Affidavit, Exhibit 19. In a letter dated September 18, 1987, the DEC requested additional information regarding Aetna’s involvement with the hazardous waste dumped in the Pfohl Landfill. Hurd Affidavit, Exhibit 2. By letter dated February 17, 1988, the DEC advised Burt that it had been identified as a potentially responsible party (“a PRP”), as a generator of hazardous waste disposed of at the Alltift Realty Landfill site (“the Alltift Landfill”), and, as such, the DEC asserted a claim against Burt for the cost of investigating and remediating the Landfill. Hurd Affidavit, Exhibit 12. In a similar letter dated February 19, 1988, the DEC advised Burt that it had been identified as a generator of hazardous waste disposed of at the Booth Oil site, that Burt was considered a PRP with respect to the Booth Oil site, and that it was asserting claims against Burt for the costs of investigating and remediating the Booth Oil site. Hurd Affidavit, Exhibit 15. By letter dated March 31, 1988, the DEC informed Burt that it was considered a PRP with respect to the Pfohl Landfill. Hurd Affidavit, Exhibit 3. By letters dated May 6 and 10, 1988, Burt notified Aetna of the DEC’s claims against it with regard to the Pfohl Landfill, the Alltift Landfill and the Booth Oil site. Hurd Affidavit, Exhibits 4 and 5. In another letter dated June 16, 1988, Burt advised Aetna that it was incurring defense costs as the DEC was pressuring the PRPs, including Burt, to expend funds for remedial investigation of the Pfohl and Alltift Landfills and the Booth Oil site. Hurd Affidavit, Exhibit 6. Aetna responded in a letter dated October 18, 1988 that as no relevant insurance policy could be located, Aetna would provide no coverage concerning the claim. Hurd Affidavit, Exhibit 7. In a letter to Burt dated October 19, 1988 concerning the Pfohl Landfill, the Alltift Landfill and the Booth Oil site, Aet-na advised that it had been unable to verify that the general liability insurance policies Burt identified as having been issued to Moore also provided general liability insurance to Burt. Id, Exhibit 7. By letter dated May 11, 1989, Aetna again advised that based on Burt’s inability to produce documentation demonstrating that Aetna had provided insurance coverage to Burt, Aetna had taken the position that no such insurance coverage had ever been provided. Hurd Affidavit, Exhibit 7. Burt wrote Aetna on December 27, 1990 and February 15, 1991 notifying Aetna of the DEC’s claim against Burt regarding the Sleepy Hollow site and requesting Aet-na provide a defense and indemnify Burt as to the claim. Hurd Affidavit, Exhibits 20 and 21. Aetna denied coverage regarding the Sleepy Hollow site by letter dated January 16, 1991. Mugel Affidavit in Opposition to. Partial Summary Judgment, Exhibit 28. The DEC, in a letter dated April 2,1992, notified Burt that it intended to seek recovery from Burt for expenses incurred conducting remediation activities at the Pfohl Landfill. Hurd Affidavit, Exhibit 10. On April 22, 1992, Burt notified Aetna of the DEC’s April 2, 1992 claims, however, Aetna refused to provide coverage as to those claims. Hurd Affidavit, Exhibit 11. By letters of February 12 and April 23, 1993, the DEC advised that, based on its investigation, it considered Burt to be a responsible party with regard to contamination at the Booth Oil site, and asserted a claim against Burt for remediation of the site and reimbursement of expenses incurred by the DEC regarding the site. Hurd Affidavit, Exhibits 16 and 17. In a letter dated November 13, 1995, the DEC notified Burt that it was considered a responsible party as a generator of hazardous wastes at the Alltift Realty Landfill site (“the Alltift Landfill”). Hurd Affidavit, Exhibit 13. In particular, the DEC advised, “[t]he purpose of this Notice Letter is to inform you of your potential liability as a responsible party, and to determine whether you are willing to conduct or finance the remedial program for this site.” Id. The DEC also asserted a claim against Burt for “payment of all monies DEC has or may expend for the investigation and remediation of this [Alltift Landfill] site, plus any and all interest ... accruing] as of the date of this letter.” Id. By letter dated December 1,1995, Burt notified Aetna of the DEC’S claims asserted against Burt with regard to the Alltift Landfill, and requested Aetna provide both a defense to such claims as well as indemnification. Hurd Affidavit, Exhibit 14. Subsequent to commencing this declaratory judgment action, Burt has been sued in litigation relating to the hazardous waste it generated which was deposited into the Pfohl Landfill. Such litigation includes actions for recovery of costs, contribution and declaratory relief under §§ 107 and 113 of CERCLA, 42 U.S.C. §§ 9607 and 9613, and personal injury actions filed in both state and federal court. Specifically, Burt is sued as a defendant in property damage actions entitled Cline v. Occidental Chemical Corp. (Cline I), Pfohl v. Amax, Inc. (“Pfohl ”), Freier v. Amax, Inc. (“Freier”), Bartlebaugh v. Amax, Inc., (“Bartlebaugh ”), and Marzec v. Amax, Inc. (“Marzec ”) (“the property damage actions”). In these actions, numerous plaintiffs allege that between 1932 and 1971 Burt, and others, generated hazardous waste that was disposed of in the Pfohl Landfill and to which the plaintiffs, who owned and resided at properties in the vicinity of the Pfohl Landfill, were exposed, diminishing the value of such property and the plaintiffs’ quality of life. Burt notified Aetna of the claims asserted against it in the above actions, requesting Aetna defend and indemnify Burt with regard to the claims on May 24, 1994 (Cline I) (Hurd Affidavit, Exhibit 23), May 19, 1994 (Pfohl) (Hurd Affidavit, Exhibit 26), September 27, 1994 (Freier) (Hurd Affidavit, Exhibit 28), May 8, 1995 (Bartlebaugh) (Hurd Affidavit, Exhibit 34), and September 11, 1995 (Marzec) (Hurd Affidavit, Exhibit 40). Aetna, however, refused to provide any defense or indemnification with regard to the property damage claims on the basis that it was unable to verify that Burt was an insured under the alleged policies. Hurd Affidavit Exhibits 24 (June 21, 1994, regarding Cline I and Pfohl), 29 (October 20, 1994, regarding Freier), 35 (May 23, 1995, regarding Bar-tlebaugh), and 41 (October 11, 1995, regarding Marzec). Burt is also named as a defendant in four personal injury actions entitled Ewert v. Westinghouse Electric Corporation (“Ewert ”), Cline v. Westinghouse Electric Corporation (“Cline II”), Spink v. Westinghouse Electric Corporation (“Spink”), and Weigel v. Westinghouse Electric Corporation (“Weigel”) (“the personal injury actions”). In these actions, numerous plaintiffs assert personal injury and wrongful death claims they attribute to exposure to hazardous waste generated by Burt and others and deposited into the Landfill during the 1950s and 1960s. According to those plaintiffs, such exposure occurred while they lived, worked and recreated in the vicinity of the Pfohl Landfill. Burt notified Aetna of the personal injury claims, requesting Aetna provide both a defense and indemnification, on April 26, 1995 (Ewert, Hurd Affidavit, Exhibit 31), June 27, 1995 (Cline II, Hurd Affidavit, Exhibit 37), January 28, 1997 (Spink, Hurd Affidavit, Exhibit 43), and November 21, 1997 (Weigel, Hurd Affidavit, Exhibit 46). Aetna also refused to provide any defense or indemnification with regard to the personal injury actions on the basis that it was unable to verify that Burt was an insured under the alleged policies. Hurd Affidavit Exhibits 32 (May 10, 1995, regarding Ewert), 38 (August 7, 1995, regarding Cline II), 44 (March 20, 1997, regarding Spink), and 47 (January 12,1998, regarding Weigel). The Insurance Policies The parties dispute whether Aetna issued any insurance policies providing coverage to Burt during the relevant period, ie., December 31, 1963 through December 31, 1971. It is, however, undisputed that prior to 1983 Burt was a wholly-owned subsidiary of Moore Corporation Limited (“Moore”), which maintains its headquarters in Toronto, Ontario, Canada. Mugel Affidavit, Exhibit 20, p. 5, and Exhibit 21. According to Burt, Aetna issued comprehensive general liability (“CGL”) policies to Moore covering the period December 31, 1963 to December 31, 1971, naming Burt as an insured for each of those years. Second Amended Complaint, ¶¶ 4-5. Burt, however, asserts it never received any of the actual policies issued by Aetna to Moore or copies of the policies. Mugel Affidavit, Exhibit 54, pp. 39-40, and Exhibit 56, p. 13. Burt maintains that upon being advised of the DEC’S investigation into the Pfohl Landfill, Burt conducted a search to locate any applicable insurance policies. Mugel Affidavit, Exhibit 51, p. 29. Burt attributes the fact that none were ever found to Moore’s practice not to provide its subsidiaries with copies of the insurance policies Moore maintained on their behalf. Mugel Affidavit, Exhibit 56, p. 13. Aetna was also unable to produce the policies, having destroyed all underwriting records and policies for the period December 31, 1963 through December 31, 1971 in accordance with its records retention and destruction program. Mugel Affidavit, Exhibit 24, ¶ 6. As such, Aetna refused to provide coverage to Burt. Hurd Affidavit, Exhibit 7, p. 3, ¶¶ 6 and 7. Moore located copies of CGL policies issued to Moore for the years 1972 through 1983 by other insurance companies, but was unable to locate any copies of CGL policies issued by Aetna to Moore for the period December 31, 1963 through December 31, 1971 or prior thereto. Mugel Affidavit, Exhibit 51, p. 30. In May 1988, however, Moore eventually located information which referred to several Aetna policies issued to Moore, including policy numbers, dates and type of coverage, as follows: Mugel Affidavit, Exhibit 22. Burt maintains that upon receiving the above information from Moore, Burt notified Aetna in May 1988 of the DEC’S claims against Burt pertaining to the Pfohl and Alltift Landfills and the Booth Oil site. Hurd Affidavit, Exhibits 4 and 5. Aetna nevertheless continued to refuse to provide coverage based on that information, causing Burt to search for copies of the policies from third parties including Moore’s insurance broker, as well as secondary evidence of the policies, ie., evidence other than the original disputed policies or copies thereof. Burt maintains that secondary evidence establishes that for the period December 31, 1963 through December 31, 1971, Burt was insured by Aetna under comprehensive liability policies issued to Moore and which obligate Aetna to provide Burt with indemnification and a defense to the underlying actions. Plaintiffs Memorandum at 13-15 (referencing Appendix A to Plaintiffs Memorandum entitled “Summary of Secondary Evidence of Aetna Policies at Issue”). In contrast, Aetna maintains that Burt has failed to establish the existence of the claimed insurance policies and, alternatively, asserts that Burt failed to satisfy the condition precedent to coverage of timely notification of occurrences and claims, and that many of the claims asserted in the private party personal injury and property damage claims are either outside alleged coverage period or barred by exclusions in the policies themselves. Burt does not dispute that the standard Aetna CGL insurance policies issued during the years 1963 through 1971, the period during which Burt maintains it was insured through insurance policies issued by Aetna to Moore, required, as a condition precedent to coverage sought for an “accident” or “occurrence,” that the insured notify Aetna in writing of an accident or occurrence “as soon as practicable.” Kelley Affidavit, Exs. A at 4 and B at 15; Mugel Affidavit, Exs. 59 at 4 and 61 at 15. Standard CGL policies commonly issued by Aetna during the period 1955 through 1965 provide “[t]his policy applies only to accidents which occur during the policy period within the United States of America, its territories or possessions, or Canada.” Kelley Affidavit, Ex. A at 2; Mugel Affidavit, Ex. 59 at 2. Similarly, standard CGL policies commonly issued by Aetna during the period 1966 through 1971 provide “[t]his insurance applies only to bodily injury or property damage which occurs during the period within the policy territory.” Kelley Affidavit, Ex. B at 7; Mugel Affidavit, Ex. 61 at 7. “Occurrence” is defined in the latter policy as an accident, including injurious exposure to conditions, which results during the policy period, in bodily injury or property damage, neither expected nor intended from the standpoint of the insured. Kelley Affidavit, Ex. B at 13; Mugel Affidavit, Ex. 61 at 13. Aetna maintains that, as of June 1970, Aetna typically endorsed its standard policy to contain a pollution exclusion which modified, inter alia, CGL insurance policies. Kelley Affidavit, ¶ 4. The pollution exclusion provides It is agreed that the insurance does not apply to bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere, or any watercourse or body of water; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental. Kelley Affidavit, Ex. C. The pollution exclusion further indicates that it is “effective on the inception date of the policy unless otherwise stated herein.” Id. DISCUSSION 1. Summary Judgment Burt and Aetna have each moved for summary judgment declaring Aetna’s obligations under the alleged relevant insurance policies to defend and indemnify Burt with respect to the CERCLA actions and the private property damage and personal injury actions. Summary judgment of a claim or defense will be granted when the moving party demonstrates that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a) and (b); Celotex Corp. v. Catrett, 477 U.S. 317, 331, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Rattner v. Netbum, 930 F.2d 204, 209 (2d Cir.1991). The moving party for summary judgment bears the burden of establishing the nonexistence of any genuine issue of material fact. If there is any evidence in the record based upon any source from which a reasonable inference in the nonmoving party’s favor may be drawn, the moving party cannot obtain a summary judgment. Celotex, supra, at 331, 106 S.Ct. 2548. Summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no issue as to any material fact, and the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “[T]he 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, supra, at 247-48, 106 S.Ct. 2505. Whether a fact is material depends on the substantive law of the claim and “[o]nly disputes over facts, that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 248,106 S.Ct. 2505. “[Wjhere the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the ‘pleadings, depositions, answers to interrogatories, and admissions on file.’ Such a motion, whether or not accompanied by affidavits, will be ‘made and supported as provided in this rule [FRCP 56],’ and Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Celotex Corporation v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56). Thus, “as to issues on which the non-moving party bears the burden of proof, the moving party may simply point out the absence of evidence to support the non-moving party’s case.” Nora Beverages, Inc. v. Perrier Group of America, Inc., 164 F.3d 736, 742 (2d Cir.1998). Once a party moving for summary judgment has made a properly supported showing as to the absence of any genuine issue as to all material facts, the nonmov-ing party must, to defeat summary judgment, come forward with evidence that would be sufficient to support a jury verdict in its favor. Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir.1995). In opposing a motion for summary judgment a party “may not simply rely on conclusory statements or on contentions that the affidavits supporting the motion are not credible.” Goenaga, supra, at 18 (citing cases). Further, where the burden of proof on an issue for which summary judgment is sought is on the movant, should the movant fail to meet its initial burden of establishing the absence of any genuine issue of material fact as to that issue, the non-movant will prevail even if the non-movant submits no evidentiary matter establishing there is indeed a genuine issue for trial. Zanghi v. Incorporated Village of Old Brookville, 752 F.2d 42, 47 (2d Cir.1985). A district court sitting in diversity applies the substantive law of the forum state. Klaxon v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Thrift Drug, Inc. v. Universal Prescription Administrators, 131 F.3d 95, 97 (2d Cir.1997). Here, the parties do not dispute that the law of New York, the forum state, applies. The instant motions concern whether Aetna is obligated to defend or indemnify Burt with regard to the underlying actions. This determination turns on whether Aetna ever issued insurance policies covering Burt for the period December 31, 1963 through December 31, 1971, whether, assuming policies covering Burt were issued, Burt’s notifications to Aetna of the underlying occurrences and claims were timely, whether Aetna waived untimely notification as a defense based on untimely disclaimer of coverage or defense, and whether any of the claims asserted in the underlying actions are outside the coverage of any insurance policies issued by Aetna. Whether an insurer has an obligation to defend is a question of law for the courts. Freedom Gravel Products, Inc. v. Michigan Mutual Insurance Company, 819 F.Supp. 275, 279 (W.D.N.Y.1993) (citing National Grange Mutual Insurance Company v. Continental Casualty Insurance Company, 650 F.Supp. 1404, 1408 (S.D.N.Y.1986), and Seaboard Surety Company v. Gillette Company, 64 N.Y.2d 304, 486 N.Y.S.2d 873, 476 N.E.2d 272, 275 (1984)). Where the original insurance policy cannot be found, its existence may be found, as a matter of law, based on secondary evidence establishing the policy was issued. See Colonial Tanning Corporation v. Home Indemnity Company, 780 F.Supp. 906, 922 (N.D.N.Y.1991) (allowing plaintiff to demonstrate on summary judgment existence of lost insurance policy through secondary evidence); Burroughs Wellcome Company v. Commercial Union Insurance Company, 632 F.Supp. 1213, 1222 (S.D.N.Y.1986) (same). An insurer’s duty to defend is derived from the allegations of the complaint and the terms of the policy. Technicon Electronics Corporation v. American Home Assurance Company, 74 N.Y.2d 66, 544 N.Y.S.2d 531, 542 N.E.2d 1048, 1050 (1989). “The duty of an insurer to defend its insured arises whenever the allegations within the four corners of the underlying complaint potentially give rise to a covered claim, or where the insurer ‘has actual knowledge of facts establishing a reasonable possibility of coverage.’ ” Frontier Insulation Contractors, Inc. v. Merchants Mutual Insurance Company, 91 N.Y.2d 169, 667 N.Y.S.2d 982, 690 N.E.2d 866, 868 (1997) (quoting Fitzpatrick v. American Honda Motor Company, Inc., 78 N.Y.2d 61, 571 N.Y.S.2d 672, 575 N.E.2d 90, 90 (1991)). There is, however, no duty to defend if the insurer shows that the allegations in the complaint are completely within a policy exclusion and the allegations, taken as a whole, are subject to no other interpretation. Technicon Electronics Corp., supra, at 1050 (citing International Paper Company v. Continental Casualty Company, 35 N.Y.2d 322, 361 N.Y.S.2d 873, 320 N.E.2d 619, 620 (1974)). Further, the insurer bears the burden of establishing that exclusions or exemptions from coverage apply in a particular case. Seaboard Surety Co., supra, at 275. An insurer’s duty to defend is broader than the duty to indemnify. EAD Metallurgical Incorporated v. Aetna Casualty & Surety Company, 905 F.2d 8, 11 (2d Cir.1990). Provided it is determined that the insurer is obligated to indemnify, no separate analysis of the insurer’s duty to defend is necessary. Id. 2. Existence of the Policies As stated, the parties dispute whether Aetna ever issued any insurance policies covering Burt for the time period December 31, 1963 through December 31, 1971. In particular, neither Burt nor Aetna has been able to locate any Aetna insurance policies providing Burt with the claimed coverage. Rather, Aetna maintains any such policies would have been destroyed in accordance with its document retention and destruction policy in effect prior to receipt from Burt of notification of the DEC’s claims against it. Burt maintains that although it was a named insured on CGL policies issued to Moore, it was not Moore’s practice to provide Burt with copies of those policies and that Moore also has destroyed all insurance policies issued between 1963 and 1972. As such, Burt attempts to establish the existence of such policies through secondary evidence. The court’s determination as to whether to grant summary judgment on the issue of the existence of the claimed insurance policies requires three separate determinations. First, the court must determine what substantive evidentiary standard must guide its determination of whether the factual dispute over the existence of the claimed policies requires submission to the jury. Second, the court must determine whether Burt has sufficiently demonstrated that it has been unable to locate the claimed policies, despite diligent searching and inquiry, thereby allowing Burt to attempt to establish the existence of the policies by secondary evidence. Provided Burt satisfactorily demonstrates the requisite diligent searching and inquiry, the court will then analyze the evidence submitted by both parties to determine whether summary judgment may be granted in favor of either Burt or Aetna. A. Standard of Proof “[Sjummary judgment should be granted where the evidence is such that it ‘would require a directed verdict for the moving party.’ ” Anderson, supra, at 251, 106 S.Ct. 2505 (quoting Sartor v. Arkansas Natural Gas Corporation, 321 U.S. 620, 624, 64 S.Ct. 724, 88 L.Ed. 967 (1944)). As such, “the inquiry involved in a ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits.” Anderson, supra, at 252, 106 S.Ct. 2505. Put another way, “the determination of whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case.” Id. at 252, 106 S.Ct. 2505. Thus, in ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden. This conclusion is mandated by the nature of this determination. The question here is whether a jury could reasonably find either that the plaintiff proved his case by the quality and quantity of the evidence required by the governing law or that he did not. Whether a jury could reasonably find for either party, however, cannot be defined except by the criteria governing what evidence would enable the jury to find for either the plaintiff or the defendant: It makes no sense to say that a jury could reasonably find for either party without some benchmark as to what standards govern its deliberations and within what boundaries its ultimate decision must fall, and these standards and boundaries are in fact provided by the applicable eviden-tiary standards. Anderson, supra, at 254-55, 106 S.Ct. 2505. The parties do not dispute that the burden is on the insured to prove the existence of an insurance policy under which coverage is sought. See Plaintiffs Memorandum at 18; Defendant’s Memorandum in Opposition to Summary Judgment at 4. Aetna, however, argues that Burt must prove the existence of the alleged insurance policies by clear and convincing evidence, rather than by a preponderance of the evidence. Defendant’s Memorandum in Opposition to Summary Judgment at 9-14. Burt argues in opposition that under New York law, it is required to establish the existence, terms and conditions of the Aetna policies by a preponderance of the evidence. Plaintiffs Reply Memorandum at 10-11. The court’s research reveals that in the only New York case addressing the standard of proof necessary to establish the existence of insurance policies by secondary evidence where the actual policy cannot be found, the court rejected use of the clear and convincing standard and held that the proponent of a lost policy must prove its existence and terms by a preponderance of the evidence. Gold Fields American Corporation v. Aetna Casualty and Surety Company, 173 Misc.2d 901, 661 N.Y.S.2d 948, 949-51 (1997). No higher New York court nor the Second Circuit has addressed this issue. See Employers Ins. of Wausau v. Duplan Corporation, 1999 WL 777976, *23 (S.D.N.Y.1999) (observing that Gold Fields American, supra, is the only reported New York case to consider the standard of proof for establishing the existence of a lost insurance policy, and applying the preponderance of the evidence standard). “[W]hile the decrees of ‘lower state courts’ should be ‘attributed some weight ... the decision [is] not controlling ... ’ where the highest court of the State has not spoken on the point.” C.I.R. v. Bosch’s Estate, 387 U.S. 456, 465, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967) (quoting King v. Order of United Commercial Travelers of America, 333 U.S. 153, 160-61, 68 S.Ct. 488, 92 L.Ed. 608 (1948)). Federal courts are not necessarily bound by an intermediate state appellate court ruling; as such it follows “that when the application of a federal statute is involved, the decision of a state trial court as to an underlying issue of state law should a fortiori not be controlling.” Bosch, supra, at 465, 87 S.Ct. 1776 (citing Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). Rather, “[w]here the law of a state is uncertain or ambiguous, [the court] will carefully predict how the highest court of the state would resolve the uncertainty or ambiguity.” Bank of New York v. Amoco Oil Company, 35 F.3d 643, 650 (2d Cir.1994). Nevertheless, in making such a determination, the best indicators of how the state’s highest court would decide the issue are decisions of lower state courts. Elliott Associates, L.P. v. Banco de la Nacion, 194 F.3d 363, 370 (2d Cir.1999) (citing In re Brooklyn Navy Yard Asbestos Litigation, 971 F.2d 831, 850 (2d Cir.1992)). In Gold Fields American, supra, the court distinguished its finding that New York law requires the proponent of a lost instrument, such as an insurance policy, prove the instrument’s existence by a preponderance of the evidence from other cases holding the applicable standard is clear and convincing evidence. Gold Fields American, supra, at 949-50. In particular, the court observed that in Em-ons Industries, Inc. v. Liberty Mutual Fire Insurance Company, 545 F.Supp. 185 (S.D.N.Y.1982), the court, relying on a case from the District Court of the District of Columbia, held that in an insurance contract action applying New York law, it is the plaintiffs burden of proof to establish the existence of the relevant policy, but did not quantify the requisite burden of proof. The court also observed that in Boyce Thompson Institute for Plant Research, Inc. v. Insurance Company of North America, 751 F.Supp. 1137 (S.D.N.Y.1990), where the court held that the plaintiff in an insurance contract action under New York law was required to establish the existence of such contract by a preponderance of the evidence, relied on Emms, supra, in which, as just explained, the standard of proof is not discussed, as well as Sadow v. Poskin Realty Corp., 63 Misc.2d 499, 312 N.Y.S.2d 901 (1970). At issue in Sadow, supra, however, was not a lost insurance policy but, rather, the standard of proof to establish the existence of a lost mortgage. Significantly, in Gold Fields American, supra, the court distinguished Sadow on the basis that application of the higher standard of proof was justified in establishing the existence of lost and unrecorded deeds, mortgages and liens, in light of the fact that such documents are subject to the statute of frauds. The court observed that the New York “Court of Appeals has been reluctant to extend the clear and convincing standard to new categories of claims, so long as they involve more than mere property interests or concern exceptional civil matters.” Gold Fields American, supra, at 904, 661 N.Y.S.2d 948 (internal citations omitted). The court also considered that the insurer’s “knowledge that its liability on [CGL] policies might well extend for many years beyond the end of the policy period,” creates a policy issue conflict as “the higher standard [of proof] would only serve to encourage carriers to destroy the policies as soon as possible in the hope that those who had paid for insurance would be unable to produce the policies after a substantial time period.” Id. at 904-905. As such, the court concluded there was “nothing unfair in holding the plaintiff to the usual preponderance of the evidence standard of persuasion where the carrier, which is in the business of selling policies, chooses to keep no records of those policies.” Id. at 905. The reasoning set forth in Gold Fields American, supra, is persuasive. As such, the court’s determination of whether there is a genuine issue of fact regarding the existence of the insurance policies and requiring submission to the jury must be guided by whether the evidence in the record supports a reasonable jury finding that Burt either has or has not demonstrated that Aetna issued the claimed insurance policies by a preponderance of the evidence, the standard of proof ordinarily applicable in civil matters. Anderson, supra, at 255-56, 106 S.Ct. 2505. B. Diligent Search and Inquiring for Missing Insuring Documents The Second Circuit has held, and the parties do not dispute, that the insured bears the responsibility of keeping track of which insurance carriers have provided it with liability insurance. Olin Corporation v. Insurance Company of North America, 966 F.2d 718, 725 (2d Cir.1992). To meet its standard of proof, the insured need not produce the policy itself; rather, the policy’s existence may be proven by secondary evidence. Colonial Tanning Corp. v. Home Indemnity Co., 780 F.Supp. 906, 922 (N.D.N.Y.1991); Burroughs Wellcome Co., supra, at 1223; Gold Fields American, supra, at 949. Secondary evidence, however, may only be relied on where the insured demonstrates that it has made a “diligent but unsuccessful search and inquiry for the missing documents.” Burroughs Wellcome, supra, at 1223 (citing J. Weinstein & M. BergeR, 5 Weinstein’s Evidence, ¶ 1004(1)[05] at 1004-18 (1983)). The diligent search and inquiry requirement derives from Fed.R.Evid. 1004 which provides that secondary evidence of the contents of a writing, recording or photograph is admissible if “[all] originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith.” The contents of a document may thus be established by secondary evidence only where “the failure to produce the original is satisfactorily explained.” Fed.R.Evid. 1004 advisory committee’s note. See Schozer v. William Penn Life Insurance Company of New York, 84 N.Y.2d 639, 620 N.Y.S.2d 797, 644 N.E.2d 1353, 1355 (1994) (“Under a long-recognized exception to the best evidence rule, secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence, and has not procured its loss or destruction in bad faith.”) (internal citations omitted). Further, “Woss may be established upon a showing of a diligent search in the location where the document was last known to have been kept, and through the testimony of the person who last had custody of the original.” Schozer, supra. In the instant case, the parties dispute whether Burt’s search for the missing documents was sufficiently diligent to permit Burt to rely on secondary evidence to establish the existence of the insurance policies. Plaintiffs Memorandum at 19-22; Defendant’s Memorandum in Opposition to Summary Judgment at 4-9; Plaintiffs Reply Memorandum at 3-9. In particular, Aetna maintains that Burt failed to demonstrate it attempted to search its own premises for the missing documentation. Defendant’s Memorandum in Opposition to Summary Judgment at 6-7. Moreover, Aetna asserts that the material Burt submitted in connection with its summary judgment motion suggests that Burt did not commence its search for the insurance policies until 1988, more than three years after its receipt of the DEC’s letter of March 20, 1985. Id. at 7. Further, Burt waited until 1991 before requesting Marsh and McLennan, its insurance broker, search its records for the alleged policies or secondary evidence thereof. Id. at 8. In reply, Burt submitted affidavits of Richard L. Ward, former Vice-President, Comptroller and Assistant Secretary of Burt (Docket Item No. 146) (“Ward Reply Affidavit”), Aliene Brunea, former Burt employee responsible for maintaining custody and control over Burt’s financial and other important documents maintained in Burt’s safe at its premises at 2345 Walden Avenue, Cheektowaga, New York (Docket Item No. 147) (“Brunea Reply Affidavit”), and W. Russell Hurd, President and Chief Operating Officer of Burt (Docket Item No. 148) (“Hurd Reply Affidavit”). Hurd asserts that in April 1988, he and Taylor Kew and C. Victor Raiser, both of whom are now deceased, purchased Burt from Moore. Hurd Reply Affidavit, ¶¶ 2-3. Hurd served as Executive Vice President of Burt from April 13, 1983 until August 31, 1992, when Hurd became President and Chief Operating Officer of Burt. Id., ¶ 1. According to Hurd, upon being notified by the Pfohl Brothers Site Steering Committee in 1986 that the DEC had identified Burt as a PRP with regard to the Pfohl Landfill, Hurd asked certain Burt employees to locate any insurance policies which might provide coverage to Burt as to the Pfohl Landfill claim. Id., ¶¶ 4-5. Hurd was advised by such employees that Moore had not provided Burt with any insurance policies, but that policies issued directly to Burt by another insurance company in 1983 and thereafter were located. Id., ¶ 6. Burt then, through its attorneys, requested that counsel for its former corporate parent, ie., Moore, provide information concerning insurance carriers who may have provided coverage to Burt as a Moore subsidiary, prior to 1983, so that Burt could notify such insurers of the potential claim. Id., ¶ 7. Ward worked at Burt first as an accountant in 1958, then as Data Processing Manager in charge of data processing and payroll beginning in 1968 until 1973 when he was promoted to Comptroller and Assistance Secretary, a position he held until 1989 when he became Burt’s Vice President, Comptroller and Assistant Secretary. Ward Reply Affidavit, ¶ 2. Ward, who held his Vice President position until he retired in July 1996, maintains that Burt’s then Executive Vice President had inquired of Ward whether Moore had ever provided Burt With insurance policies or copies. Ward Reply Affidavit, ¶¶ 2-3. Brunea states that between June 12, 1978 and July 28, 1997 she was employed by Burt where she was responsible for maintaining custody and control over many of Burt’s financial and other important documentation in Burt’s safe located at its premises at 2345 Walden Avenue, Cheek-towaga, New York. Brunea Reply Affidavit, ¶¶ 1, 4. Brunea maintains that “to the best of [her] knowledge, at no time between June 12, 1978 and April, 1983, or thereafter, were any insurance policies, or copies thereof, provided by Moore to Burt.” Id., ¶ 5. According to Brunea, in 1986 Hurd requested Burt’s employees search the Burt premises for any insurance policies or copies of policies, issued to Moore which provided coverage to Burt. Id., ¶ 6. The search, however, revealed only insurance policies issued in 1983 and thereafter, and Brunea advised Hurd that no insurance policies issued to Moore were located. Id., ¶¶ 7-8. Burt’s recitation of its attempt to locate the missing insurance policies begins with Burt’s assertion that in August 1986, upon being identified by the Pfohl Brothers Site Steering Committee as a PRP with regard to the Pfohl Landfill, Burt’s current president, W. Russell Hurd, asked certain Burt employees to search for any insurance policies that might provide coverage to Burt. Plaintiffs Reply Memorandum at 4 (citing Hurd Reply Affidavit (Docket Item No. 148), ¶ 2-5). Upon being advised that no such policies had been located, Burt, through its attorneys, requested that counsel for Moore, its former parent corporation, provide it with information pertaining to insurance carriers who may have provided coverage to Burt, as a subsidiary to Moore, prior to 1983 so that Burt could notify the appropriate insurers. Hurd Affidavit in Opposition to Partial Summary Judgment, ¶ 15 and Exhibit M; Hurd Reply Affidavit, ¶¶ 6-7. ’ Moore, however, was also unable to locate any policies. In letters dated September 22 and 24, 1986, Moore advised Burt that the liability insurance carrier for the period December 1971 through January 1977 was Federal Insurance Company and that the liability insurance carriers since 1978 were Cigna Insurance Company and Liberty Mutual Insurance Company. Hurd Affidavit in Opposition to Partial Summary Judgment, ¶¶ 16-17 and Exhibits N and 0. By letter dated April 14, 1988, counsel for Burt again requested Moore identify any insurance carriers who may have provided insurance coverage to Moore and Burt prior to Moore’s sale of Burt in. 1983. Id., ¶ 23 and Exhibit T. On May 3, 1988, Moore sent Burt a listing of its liability insurance carriers which, for the first time, identified Aetna as Moore’s insurance carrier from December 31, 1963 through December 31, 1971. Id.', ¶25 and Exhibit W. Aetna, however, was unable to locate any relevant policies and, according to its records retention and destruction program, had destroyed any underwriting records and policies issued between 1963 and 1971. Mugel Affidavit, Ex. 24, ¶ 6. This record demonstrates that although Burt did not learn that Aetna was an insurer until May, 1988, Burt was not dilatory in searching for the relevant insurance policies. Rather, it demonstrates that, contrary to Aetna’s assertion, Burt did conduct a search of its own premises for any relevant policies. When such search failed to produce any relevant insurance policies, Burt requested Moore search its records for the same. Moore, however, was also unable to locate any policies and it was not until May 3, 1988 that Moore located secondary evidence identifying Aetna as Moore’s insurance carrier. On this record, the court finds Burt’s search for relevant insurance policies was sufficiently diligent to permit Burt to rely on secondary evidence to establish the existence of the insurance policies. C. Secondary Evidence Having demonstrated that it conducted a “diligent but unsuccessful, search and inquiry for the missing documents,” Burroughs Wellcome, supra, at 1223, Burt may rely on secondary evidence to establish the existence of the missing insurance policies. Colonial Tanning, supra, at 922; Burroughs Wellcome, supra, at 1223. Evidence which has been held sufficient to establish the existence of an insurance policy includes copies of policies for the relevant years, “certificates of insurance, letters discussing coverage, letters discussing renewal of coverage, portions of policies, letters referring to claims ... during relevant years, endorsements, excess policies that refer to [the putative insured’s] primary coverage, and the minutes of [the insured’s] board of directors’ meeting evidencing the company’s initial decision to procure [ ] liability insurance in [the relevant time period].” Burroughs Wellcome, supra, at 1222-23. In this case, the plethora of secondary evidence provided by Burt establishes, by a preponderance of the evidence, that Aetna issued CGL insurance policies to Moore, and that such policies also provided coverage to Burt. In response to Burt’s request that Moore attempt to determine from secondary sources insurance policy numbers or other relevant information to establish the existence of the Aetna policies, Moore, by letter dated May 3, 1988, provided Burt with a listing of liability insurance carriers providing coverage to Burt for the period December 31, 1963 through December 31, 1971, under the following policy numbers: Mugel Affidavit, Exhibit 22. The basis for Moore’s determination that Burt was insured under the above policies is a series of letters Moore discovered in an old claims correspondence file indicating claims filed against Moore which Moore submitted to Aetna for indemnification and defense under insurance policies Aetna issued to Moore during the relevant time period. Plaintiffs Memorandum at 22. By letter dated June 16, 1988, Dustin P. Ordway, of counsel to Beveridge and Diamond, attorneys for Burt, to Aetna Senior Claim Representative Robert Beckstrand, Ordway provided Beckstrand with a master list of insurance carriers whom Burt had put on notice with regard to the DEC claims pending against Burt. Mugel Affidavit, Ex. 26. Ordway referenced the above stated Aetna insurance policy letters in the letter’s caption. Id. In a letter to Beckst-rand dated October 17, 1988, E.A. Grisa-ru of Beveridge and Diamond memorialized a conversation he had earlier that day with Beckstrand in which Beckstrand acknowledged that he recognized the policy numbers referenced in Ordway’s June 16, 1988 letter as pertaining to Aetna policies. Id., Ex. 25. Aetna has not disputed either the accuracy of the letter, or Beckstrand’s oral acknowledgment to Girasu. Financial statements for the years 1963 to 1971 indicate Burt allocated funds for prepaid comprehensive liability insurance policies issued by Aetna, each policy providing $1,000,000 in coverage for the period December 31, 1963 through December 31, 1971. Mugel Affidavit, Exs. 63-71. The Aetna policy numbers referenced on the financial statements are consistent with those Moore provided to Burt in May 1988. Id. Aetna Claims Counsel Robert E. Hyland testified in a deposition taken by Burt on October 25, 1995. Mugel Affidavit, Ex. 46 (“Hyland Deposition T.”). According to Hyland, Aetna conducted a search of its computerized claim data file (“CDF”) for any references to the same insurance policy numbers with which Moore provided Burt in May, 1988. Hyland Deposition T. at 24, 27. Information contained for each claim in the CDF includes the relevant insurance policy number, claim number, date of the claimed loss, the date and amount of insurance payments made for the loss, and any reserve amounts established relative to the claim. Id. at 25. Hyland explained the results of the document generated by the computerized CDF search of the insurance policy numbers (“the CDF history”) under which Burt seeks coverage. Id. at 28-47. Hyland also explained that as claim files older than 20 years would have been destroyed under Aetna’s document retention and destruction program, Aetna was able to conduct only CDF searches for information on claims older than 20 years. Id. at 55-56. Hyland agreed that evidence of payment of an insurance premium would be considered as evidence that a policy was issued, although such evidence would not conclusively establish the existence of a policy, nor would it indicate the type of policy or amount of coverage. Id. at 64-65. Hy-land also agreed that further evidence that would be considered in determining whether a policy existed included a certificate of insurance, an insurance binder, and both claim and underwriting correspondence between Aetna and the alleged insured. Id. at 65-66. According to Hyland, an entry on the CDF history indicated that in May 1970, a general liability claim was filed under Aet-na insurance policy No. 143628, which Hy-land admitted was one of Aetna’s policy numbers under which Burt claims coverage through Moore. Hyland Deposition T. at 32-34. As the claim was a general liability claim, Hyland presumed policy No. 143628 was either a “stand-alone” general liability policy or a combination general liability and automobile liability policy.. Id. at 33-34. The entry further indicated that no payments were ever made to the claimant, whose name was Bickel, although a reserve fund was established with regard to the claim, and the date the claim file was closed. Id. at 34-35. Another page of the CDF history reflected that there was no claim activity under Aetna policy No. 01AL143622, which, according to Hyland, was issued to Green Tree Stud, although that number also corresponded to one listed in Moore’s May 3, 1988 letter to Burt. Id. at 43. Hyland interpreted the CDF history with respect to another claim against Moore made under Aetna insurance policy No. 01AL42774. Hyland Deposition T. at 36. According to Hyland, the policy was a general liability policy for calendar year 1965. Id. at 36-37. The claimant was one Tannery. Id. Two other claims were filed against that same policy with respect to claimants named “R. Thomas” and “Nolan Pape.” Id. at 38. No payments were made to any claimant under the policy, although reserves were established. Id. at 38-39. According to Hyland, the CDF history indicated that policy No. 42774 was reissued to Moore for 1966 and other claims were filed against it. Id. at 39-41. Hyland admitted that policy No. 42774 corresponded to one of the policy numbers which Burt alleges Aetna issued to Moore. Id. at 40. Hyland stated that Aetna policy No. 01AL26334 which, according to the CDF history, covered the years 1962-1964, including 1963, corresponded to the number of one of the policies which Burt alleges Aetna issued to Moore. Hyland Deposition T. at 41-42. Hyland acknowledged that Aetna, from 1963 to 1971, maintained an office in Toronto, Ontario, Canada, out of which he believed Aetna issued insurance policies. Hyland Deposition T. at 50-51. Hyland also testified he “believe[d] that there is evidence to indicate that we [Aetna] did, in fact, insure Moore Company at one time.” Id. at 47. Hyland was then asked questions regarding correspondence between Aetna, Moore and Marsh & McLennan Limited (“Marsh”), the Toronto insurance broker through whom