Fireman's Fund Insurance Co. v. St. Paul Fire & Marine Insurance Co. (182 F. Supp. 3d 793, 2016)

MEMORANDUM OPINION

KEVIN H. SHARP, Chief Judge, United States District Court

Before the Court in this consolidated action are three motions: the motion for summary judgment filed by plaintiffs Steven Cohen Productions, Ltd. (“SCP”) and St. Paul Fire & Marine Insurance (“St. Paul”) in June 2015 in Steven Cohen Productions, Ltd. v. Lucky Star, Inc., No. 3:16-cv-0641 (ECF No. 79) (the “Nevada Action”) when that action was still pending in the United States District Court for the District of Nevada; the motion for summary judgment filed by defendants St. Paul and Travelers Indemnity Company in February 2015 in Fireman’s Fund Insurance Co. v. St. Paul Fire & Marine Insurance Co., No. 3:12-cv-0851 (the “Declaratory Judgment Action”); and the motion for summary judgment filed in February 2015 by plaintiff Fireman’s Fund Insurance Company (“Fireman’s Fund”), also in the Declaratory Judgment Action. The Nevada Action was transferred to this district effective March 23, 2016 and reassigned to the undersigned on March 31, 2016. The two actions were consolidated by order entered on April 12, 2016 (ECF No. 129). The parties will be referred to herein by name or initials rather than by party designation, in an attempt to avoid unnecessary confusion.

All the summary-judgment motions have been fully briefed and are ripe for review. The record is replete with statements of facts, responses to statements of facts, additional facts, responses to the additional facts, and numerous declarations, affidavits, depositions and deposition excerpts in support of the parties’ statements. Also in the record are a set of joint stipulations and copies of all the written contracts that are or might be relevant to the resolution of this case.

For the reasons set forth herein, the motions filed by SCP and St. Paul will be granted, and the motion filed by Fireman’s Fund will be denied in its entirety.

I. STATEMENT OF UNDISPUTED FACTS

Although the parties dispute how to interpret some of the facts, the actual facts themselves are basically undisputed.

On August 13, 2011, the country music band Sugarland was about to perform an outdoor concert at the Indiana State Fairgrounds in Indianapolis. Just before Sug-arland was scheduled to go on stage, fifty-mile-per-hour wind gusts from an approaching thunderstorm hit the stage, causing the temporary roof structure to collapse. The “Stage Collapse,” as the parties refer to the incident, resulted in several deaths and injuries to spectators. The personal injuries are not the subject of this lawsuit. The Stage Collapse also caused the destruction of equipment used by Sugarland in its concerts. The Nevada Action is a breach of contract action between the insured parties regarding liability for the damage to the equipment caused by the Stage Collapse. The Declaratory Judgment Action was filed to settle a dispute between the insured parties’ insur-anee companies regarding which of them should be responsible, in what amount, for covering the equipment destroyed during the Stage Collapse.

Lucky Star, Inc. (“Lucky Star”), the defendant in the Nevada Action, does business as the country music band, Sugar-land. SCP, the plaintiff/subrogor in the Nevada Action, is in the business of providing equipment and personnel for live concert productions. Lucky Star engaged SCP for the purpose of providing production design and lighting equipment (hereafter, the “Leased Equipment”), lighting services, video reinforcement, and other related services in connection with Sugar-land’s “Incredible Machine” tour (the “Tour”). The Tour had two “legs,” one running from spring 2010 to October 2010 and the second running from spring 2011 to October 2011. SCP and Lucky Star executed a written Agreement for Services (“2010 Services Agreement”) in connection with the 2010 leg of the Tour. (ECF No. 61.) The 2010 Services Agreement, by its terms, is to be governed by Nevada law. It went into effect in March 2010. It did not have an express termination date but, based on the payment schedule incorporated as Exhibit C to the 2010 agreement, apparently was intended only to cover the 2010 leg of the Tour. The Leased Equipment was itemized in Exhibit A to the 2010 Services Agreement.

Some of the Leased Equipment provided by SCP was owned by SCP, but most of the equipment was owned by a third company, Epic Production Technologies (“Epic”), which is not a party to this action, and leased by SCP from Epic for use by Lucky Star during the Tour. SCP and Epic executed a separate written Service Agreement in connection with the 2010 leg of the Tour (“2010 Epic Agreement”). (ECF No. 63.) The 2010 Epic Agreement included provisions requiring SCP to procure insurance to cover Epic’s equipment during the lease term and to indemnify Epic for any damage to that equipment.

In turn, one of the specific terms of the 2010 Services Agreement between SCP and Lucky Star placed upon Lucky Star full responsibility for the risk of any damage or loss to the Leased Equipment (regardless of whether it belonged to Epic or SCP) while it was in Lucky Star’s “possession.” The agreement also required Lucky Star to obtain $3,268,200 in insurance coverage to protect the Leased Equipment and to name SCP as an additional insured and loss payee on the insurance policy. Specifically, this provision of the 2010 Services Agreement states:

Protection of the Equipment. Producer agrees to provide security protection and assumes full responsibility for the risk of any loss or damage to the Equipment while the Equipment is in possession of [Lucky Star]. [Lucky Star] shall provide evidence of property insurance coverage in the amount of $3,268,200 for the Equipment at all times the Equipment is in [Lucky Star’s] possession. Please name Steven Cohen Productions, LTD, as the additional insured.

(2010 Services Agreement, ECF No. 61, at ¶ 12.)

Although the term “possession” was not defined in the 2010 Services Agreement, Steve Cohen of SCP testified that, in his view, the equipment his company provides for use by an artist on a tour is in the artist’s “control” at all times. (Cohen Dep., ECF No. 94, at 100:10-11.) More specifically, he stated:

[W]hen an artist puts a tour together, they are in control of that equipment from the moment it leaves the depot that the equipment comes from.

Because they are the ones that make the determination on where that equipment goes, when it is used, how often it’s used, and in what venues that it’s used in, [sic]

So traditionally in the business, once the equipment leaves the shop .., and gets put into the trucks that are ordered and paid for by the artist, stuff gets put into the trucks, gets delivered to the venue.

And from the moment that it gets into those trucks, it’s the artist’s responsibility to take care of that gear.

(Id. at 100:13-101:2.) Hellen Rollens, an employee of Gellman Management, Sugar-land’s manager, testified that Lucky Star rented trucks that went to Epic’s and the other vendors’ warehouses to pick up the equipment for the Tour and transported all the equipment from “point A to point B” and, at the end of the Tour leg, returned the equipment to the vendors. (Rollens Dep., ECF No. 93-5, at 66:11-21.) To her knowledge, SCP did not have trucks out on Tour that kept the equipment. (Id. at 67:1-3.) The testimony from Cohen and Rollens, which is undisputed, strongly suggests that Lucky Star was in “possession” or control of the Leased Equipment during the 2010 Tour leg from the time it picked up the equipment in its rented trucks until it returned the equipment at the end of the Tour leg.

In any event, Lucky Star complied, with ¶ 12 of the 2010 Agreement' by procuring an insurance policy (the “Lucky Star Policy”), by and through its insurance broker, Frost Specialty, issued by Fireman’s Fund, on which SCP was named as an additional insured and loss payee on a Commercial Articles Floater of the Inland Marine Coverage, covering the Leased Equipment scheduled in the contract in the amount of $3,258,200. (Lucky Star Policy, ECF No. 60-3, at 92.) Fireman’s Fund calculated and charged a premium to Lucky Star for coverage of the Leased Equipment for the duration of the 2010 leg of the Tour, without reference to the underlying 2010 Services Agreement and without requiring any information from Lucky Star regarding other insurance that might also cover the Leased Equipment. Fireman’s Fund also never requested a copy of the contract between Lucky Star and SCP.

The 2010 leg of the Tour ended in October 2010. By all accounts, the Tour was successful, and Lucky Star and SCP satisfactorily performed under the terms of the 2010 Services Agreement without controversy. It is undisputed that it was Lucky Star’s intent to begin the next leg of the Tour in early 2011 with SCP again providing the same lighting equipment, video reinforcement and other related services. According to Hellen Rollens, it was always contemplated that the Tour would continue into 2011 and that, from the production side, “all would stay the same because everybody was pretty happy with the aesthetics and how things were running and the personnel.” (Rollens Dep. ECF No. 93-5, at 55:2-6.) Gail Gellman of Gell-man Management likewise testified that it was “understood” by all involved that the Tour would continue into 2011. By the time the Tour wrapped up in October 2010, the 2011 dates were already booked, and the band planned to use the same stage set-up and production that it had used in 2010. (Gellman Dep., ECF No. 71,‘ at 10.) Steve Cohen testified that he received a call in late 2010 from Gail Gellman, who told him they were going to “take the same tour out and extend the run in 2011.” (Cohen Dep., ECF No. 94, at 51:17-19.) Cohen did not do any new work or redesign before the 2011 leg of the Tour. “I mean, there were no changes. They were taking the exact same show out.” (Id. at 52:13-14.)

In other words, by the end of 2010, the 2011 dates for the Tour were booked, and it was clear to all involved that there would be a 2011 leg of the Tour. It was similarly understood that Lucky Star would continue to engage SCP for production design services just as it had in 2010, and that SCP would continue to provide virtually the same Leased Equipment and accompanying services to Lucky Star for the 2011 leg of the Tour.

On February 9, 2011, Steve Cohen sent an email to Hellen Rollens, to which was attached the 2011 Agreement for Services (the “2011 Services Agreement”). The email stated:

Hey Helen,

Attached is a zip folder with the contract for this year and the weekly invoices for the lighting and video production package.

The contract is exactly the same as the previously executed one from last year, and the billing is consistent with how we billed last year.

The only change is that the weekly has increased by 2500.00 per week (over the 24 weeks) to partially compensate for Joe Weir’s salary....

I have attached a separate list of just the personnel and their cities of origin. As before (and no rush here) .if you could roughly estimate the flights to and from either Nashville or the cities of the start of each run (your choice) that would be helpful so I can more accurately earmark those costs so as to be able to reimburse you in a timely manner. Also, you will be getting an additional invoice for Curtis, Mark and- myself for “refreshing and reprogramming” at the start of the tour. I am waiting to finalize the dates so as to bill you correctly as we may all not be required for the full run that Nate indicated in his email. I hope this is clear enough for you, and of course if you need any more information, please call anytime.

Thanks in advance, and here is to another successful tour.

Best;

Steve Cohen

(Rollens Dep. Ex. 16, ECF No. 93-6, at 2.) It is undisputed that neither Steve Cohen on behalf of SCP nor any person on behalf ■of Lucky Star actually signed the 2011 Services Agreement attached to Cohen’s email.

Rollens testified that she recalled receiving this email from Cohen with the attached contract close in time to when the 2011 tour would have started up and that she would have reviewed the contract. (Rollens Dep., ECF No. 93-5, at 55:10-24, 97:24-98:7.) She also indicated, however, that she would have been focused only on the payment schedule and equipment and personnel lists. (Id. at 57:3-8.) She could not explain why the 2011 Agreement was not signed but stated: “It’s not unusual for any contracts in the music business generally to go—to be unsigned. It’s just what we do.” (Id. at 57:18-10.) Rollens recalled that there were changes in the payment schedule between the 2010 and 2011 agreements, particularly as concerned the payment of Joe Weir, the video director, but she would not have focused on the insurance and indemnification provisions at paragraphs 10, 11, and 12 of the agreements for either year. Rollens testified that her normal practice would have been to forward Cohen’s email and the attached contract to Michael Vaden, Lucky Star’s business manager, once she had looked over the payment schedule. {Id. at 101:11-21.) .

The parties stipulated that Gellman Management forwarded a copy of the 2011 Services Agreement- to Michael Vaden. While Gellman Management was concerned with the payment provisions, those provisions regarding insurance and indemnity would have been topics for Vaden’s office to consider, and Rollens would have expected Vaden to contact her or Gail Gellman if he had any objection to the language in those provisions. (Rollens Dep., ECF No. 93-5, at 103:3-13.)

In an affidavit submitted in the Nevada Action, Vaden testified that he “received a copy of the 2011 Agreement for Services that [SCP] sent to ... Gellman Management. As Lucky Star’s business manager, I reviewed the contract to determine Lucky Star’s obligations and to determine what insurance was needed to cover the equipment that SCP provided to Lucky Star for the 2011 Incredible Machine Tour.” (Nevada Action, ECF No. 94-4, at ¶4.) Vaden testified that he would have contacted Lucky Star’s insurance broker to obtain the insurance needed to cover SCP’s equipment, in accordance with Lucky Star’s obligations under the 2011 Services Agreement.

Gail Gellman did not recall reviewing the 2010 Services Agreement, although she was the person who signed it on behalf of Lucky Star. (Gellman Dep., ECF No. 71, at 8-9.) She testified that her office’s usual practice would have been for Hellen Rol-lens to receive and review such a contract and then bring it to Gellman for her review and signature. (M at 9.) She agreed with Rollens, with regard to paragraphs 10, 11, and 12 of the 2011 Services Agreement, that Michael Vaden would have been the person responsible, on behalf of Lucky Star, for reviewing the provisions concerning insurance and indemnity, and she would have expected him to have voiced any objection he might have had to the language used in those provisions. (Gellman Dep., ECF No. 71, at 11.) She did not recall his ever making any objections. {Id. at 11-12.) Gellman, like Rollens, testified that it was common practice in the music industry not to sign contracts. {See id. at 15 (“It’s ... more customary to not sign than to sign.”).) ■

Fireman’s Fund and Lucky Star maintain that the SCP and Lucky Star never executed the 2011 Services Agreement by signing it and that the agreement therefore does not constitute a binding contract. In support of this position, Fireman’s Fund and Lucky Star point to the following provision of the document:

UPON SCP EXECUTION HEREOF, THIS AGREEMENT AND THE TERMS AND CONDITIONS CONTAINED HEREIN SHALL BE EFFECTIVE FROM THE DATE FIRST ABOVE STATED AND UPON EITHER (a) THE EXECUTION OF THIS AGREEMENT BY PRODUCER [Lucky Star] OR (b) THE COMMENCEMENT OF PERFORMANCE BY SCP HEREUNDER WITHOUT WRITTEN OBJECTION BY PRODUCER TO THE COMMENCEMENT OF SUCH PERFORMANCE.

(2011 Services Agreement, ECF No. 62, at 4 (emphasis added).)

Nonetheless, it is also undisputed that SCP provided the specified equipment and services required under the 2011 Services Agreement to Lucky Star for the 2011 leg of the Tour and that Lucky Star paid on time each scheduled payment as set forth in Exhibit C—Payment Schedule of the 2011 Services Agreement. In total, Lucky Star made thirty-seven separate timely payments to SCP in accordance with the Schedule of Payments, including ten payments after the Stage Collapse on August 13, 2011.

Contrary to Lucky Star and Fireman’s Fund’s position, SCP and St. Paul insist that the 2011 Services Agreement is valid and enforceable and that, pursuant to the indemnification provision in that Agreement, Lucky Star is liable to SCP for reimbursement of the cost of the damage to the Leased Equipment that was caused by the Stage Collapse.

The indemnity provision in the 2011 Services Agreement states: •

Protection of the Equipment. Producer [Lucky Star] agrees to provide security protection and assumes full responsibility for the risk of any loss or damage to the Equipment while the Equipment is “in use.” The Equipment and its separate parts shall be deemed “in use” from the time it or its separate parts shall be unloaded or assembled, until such time as the Equipment is reloaded or disassembled for transport. At all times except when the Equipment is “in use,” the Equipment will be the responsibility of SCP or any common carrier transporting the Equipment. Equipment must be transported utilizing “air-ride” trailer and trucking technology. [Lucky Star] shall provide evidence of property insurance coverage in the amount of $3,258,200 for the Equipment- at all times the Equipment is “in use.” Please name Steven Cohen Productions, LTD, as additional insured.

(2011 Services Agreement ¶ 12, ECF No. 62, at 3.) Lucky Star and Fireman’s Fund make much of the fact that this provision differs from Paragraph 12 .of the. 2010 Services Agreement, which required Lucky Star to bear responsibility for the risk of loss or damage to the Leased Equipment while the Equipment was in Lucky Star’s “possession.” Fireman’s Fund points out that Steve Cohen did not reference this change in his email to Hel-len Rollens and instead represented that the contract was “exactly the same” as the previous year’s contract. Cohen later testified that he was not aware of the changed language either.

At the time of the Stage Collapse, all the Leased Equipment had been unloaded from the transport vehicles and assembled on the concert stage. The sound checks had been completed, and no further preparation of the Leased Equipment was needed in order for -Sugarland to take the stage. Although Lucky Star and Fireman’s Fund quibble with whether the band was “using” the Leased Equipment at the time of the Stage Collapse, since the band was not actually on stage playing, and further maintain that the 2011 Services Agreement is invalid and unenforceable anyway, it is undisputed that the Leased Equipment was “in use” at the time of the Stage Collapse as that term is defined in the 2011 Services Agreement.

It is also undisputed that the August 13, 2011 Stage Collapse was caused by unusually high winds. There is no evidence that negligence or willful or wanton action or misconduct on the part of Epic, SCP, or Lucky Star caused the Stage Collapse. As a result of the Stage Collapse, much of the Leased Equipment, including equipment owned by SCP as well as equipment owned by Epic and leased by SCP for use during the Tour, was destroyed.

After the Stage Collapse, SCP and its insurer, St. Paul, placed Lucky Star on notice of SCP’s claim for property damage, under the Lucky Star Policy by letter dated August 17, 2011. Since the Stage Collapse, SCP has continuously asserted and continues to assert that Lucky Star is responsible for paying for the damage to the Leased Equipment. However, .in addition to putting Lucky Star on notice of its claim under the Lucky Star Policy and requesting payment from Lucky Star and its insurer, SCP also submitted a property damage claim under its own insurance policy (the “SCP Policy”), issued by St. Paul, in connection with the loss of the equipment owned by SCP and Epic.

Sometime shortly after the Stage Collapse and its receipt of SCP’s notice of claim, Fireman’s Fund requested from Lucky Star a copy of its contract with SCP. Lucky Star, through its business manager, provided Fireman’s Fund with a copy of the unsigned 2011 Services Agreement.

On February 10, 2012, Lucky Star submitted a Sworn Statement in Proof of Loss (“Lucky Star Proof of Loss”) to Fireman’s Fund as its insurer, requesting coverage for damage to property owned by Lucky Star as well as “property in [Lucky Star’s] custody and control.” (Proof of Loss, Att. A, EOF No. 66, at 3.) In the Proof of Loss, Lucky Star included the equipment leased from SCP, in an amount up to $3,268,200. (Proof of Loss, Att. A, EOF No. 66, at 4.) For its part, Epic put SCP on notice of its claim under the SCP Policy and also submitted a property damage claim under a separate policy owned by Epic (the “Epic Policy”), also issued by St. Paul, in connection with the loss of equipment owned by Epic and Epic’s loss of business income resulting from damage to its equipment.

Fireman’s Fund opened an insurance claim for the property damage claim submitted by Lucky Star after the Stage Collapse. St. Paul opened an insurance claim for the property damage claim submitted by SCP after the Stage Collapse. St. Paul opened a separate insurance claim related to the claim submitted by Epic, which was adjusted separately from the claim submitted by SCP.

The SCP Policy was in effect on the date of the Stage Collapse. However, as issued, the SCP Policy did not have sufficient limits under the applicable coverage provisions to cover the equipment leased by'SCP from Epic. As issued, the SCP Policy provided coverage in the amount of $3,925,238 for “Scheduled Equipment” but a coverage limit of only $250,000 for both “Unscheduled Owned Equipment” 'and' “Equipment of Others.” (See SCP Policy, ECF No. 60-1, at 52.) During its investigation of the property damage claim submitted by SCP after the Stage Collapse, St, Paul determined that an error had been made in issuing the SCP Policy and that the $3,925,238 coverage limit should have been applicable to both Scheduled Equipment and Equipment of Others. St. Paul, therefore, reformed the SCP Policy after the Stage Collapse to reflect that the coverage limit applicable to Equipment of Others was $3,925,238. The reformation of the SCP Policy was applied retroactively so that it was effective as of the date of the Stage Collapse. St. Paul did not charge SCP any additional premium in connection with thé reformation of the policy based on what was apparently an oversight.

The Epic Policy was in effect on the date of the Stage Collapse. The coverage limit for Rental Property Protection—Entertainment under the Epic Policy is $31,000,000.

The Lucky Star Policy was likewise in effect on the date of the Stage Collapse. However, although Lucky Star had added SCP as an additional insured and loss payee on the Lucky Star Policy in 2010, according to Fireman’s Fund, SCP was not an additional insured or loss payee at the time of the Stage Collapse, because coverage for the equipment had been dropped for the period between the 2010 and 2011 legs of the Tour and, as a result of an error by Lucky Star, had not been not added back onto the policy when the 2011 Tour began. Thus, as the policy existed on the date of the Stage Collapse, the Lucky Star Policy did not provide coverage for the loss or damage to the equipment owned by SCP or Epic. St. Paul maintains that this constituted a breach of the 2011 Services Agreement. Fireman’s Fund maintains that Lucky Star’s oversight did not constitute breach of contract because the 2011 Services Agreement was not executed and therefore not enforceable.

Regardless, during its investigation into the property damage claim submitted by Lucky Star after the Stage Collapse, Fireman’s Fund determined that the equipment leased from SCP had not been added back onto the Commercial Articles Floater of the Lucky Star Policy before the Stage Collapse, although the equipment had been covered for the preceding year. Fireman’s Fund, in accordance with a request made by Lucky Star’s insurance broker, reformed the Lucky Star Policy to provide coverage limits in the amount of $8,258,200. Fireman’s Fund approved the reformation of the Lucky Star Policy verbally on December 9, 2011 and in writing on December 11, 2011. Fireman’s Fund issued a change endorsement evidencing the reformation of the policy to provide this coverage on January 26, 2012. Pursuant to the reformation of the Lucky Star Policy, SCP was retroactively designated a loss payee under the Commercial Articles Floater of Lucky Star’s Policy as of the time of the Stage Collapse. Pursuant to the reformation of the Lucky Star Policy, Fireman’s Fund charged Lucky' Star, and Lucky Star paid, an additional premium of $13,570 for the additional coverage under the Commercial Articles Floater of the Lucky Star Policy, retroactive to the time of the Stage Collapse. After reforming the Lucky Star Policy, Fireman’s Fund set in place a reserve of $1,750,000 for the portion of Lucky Star’s claim relating to the equipment leased from SCP. Fireman’s Fund has never tendered payment for the damage to the equipment leased from SCP.

All three of the insurance policies implicated in this controversy contain “other insurance” provisions. The Lucky Star Policy’s “other insurance” provision states:

The coverage provided by this policy shall apply only as excess insurance over any other valid and collectible insurance or coverage that applies to the covered property.

(Lucky Star Policy, ECF No. 60-3, at 98.) The SCP Policy’s “other insurance” provision states:

Other insurance may be available to cover your loss. If so, we’ll pay ‘only the excess over what you have received from the other insurance.

(SCP Policy, ECF No. 60-1, at 58.) And the Epic Policy contains the following “other insurance” provision:

This agreement is excess insurance unless you have specifically agreed in writing prior to the loss that this insurance will be primary.

(Epic Policy, ECF No. 60-2, at 104.)

After the Stage Collapse, Epic sought payment for its damaged equipment from SCP and SCP’s insurer, St. Paul, pursuant to the 2011 Epic Agreement. Epic placed SCP and St. Paul on notice that it was making a claim for its property damage under the SCP Policy. There is no dispute that, as between SCP and Epic, SCP was responsible for the damage to Epic’s equipment based on the terms of the 2011 Epic Agreement and the excess-only language of the Epic Policy. Moreover, because Fireman’s Fund disputed responsibility for covering the Leased Equipment and because of the continuing and increased risk of exposure .to SCP posed by the delay in payment to Epic for -its equipment, St. Paul adjusted the claim for property damage submitted by SCP, which covered equipment owned by both Epic and SCP.

St. Paul retained Neil Gibson, Senior General Adjuster with Crawford & Company, to serve as the person in charge of the adjustment of the SCP claim. It is undisputed for purposes of the parties’ motions that Gibson has specialized knowledge in the field of property losses in the musical entertainment industry. In adjusting the claim, Gibson reviewed the equipment, pictures, documents, other data, as well as sworn statements and proofs of loss submitted by SCP. He also conducted evaluations of the damaged property. Gibson ultimately determined that the Stage Collapse had resulted in property damage losses to the equipment in SCP’s claim in the amount of $1,961,203.66.

Based on that adjustment, St. Paul paid out $1,961,203.66 under the SCP Policy for damage to the equipment owned by SCP and equipment owned by Epic and leased by SCP for the Tour. Of that sum, $1,833,193.33 went directly to Epic, at the request of SCP, to cover the damage to Epic’s equipment. St. Paul paid $128,010.33 to SCP for damage to the SCP-owned equipment.

Fireman’s Fund did not request or receive a copy of the 2010 Services Agreement or the 2011 Services Agreement until after the Stage Collapse, and it did not consider the 2010 or 2011 Services Agreement in calculating and charging premiums to Lucky Star. There is no dispute that Lucky Star had an insurable interest in the equipment owned by SCP and leased by SCP from Epic for the Tour. Despite having access to it, Fireman’s Fund never conducted any inspection or evaluation of the Leased Equipment damaged during the Stage Collapse and never requested to do so. As Fireman’s Fund points out, however, at the time of the Stage Collapse, damage to the Leased Equipment was not technically covered by the Lucky Star Policy, and by the time the policy was reformed to cover the equipment, St. Paul had already adjusted the loss and issued payment to Epic and SCP. Even after reformation of the policy, however, Fireman’s Fund never performed any analysis or made any determination of the actual cash value or replacement value of any of the Leased Equipment.

II. PROCEDURAL BACKGROUND

Fireman’s Fund filed the Declaratory Judgment Action in this Court in August 2012, asserting that an actual controversy had arisen and existed between Fireman’s Fund and St. Paul

concerning their respective rights and obligations under the insurance policies issued to [Lucky Star], SCP and Epic. Fireman’s Fund alleges that the [Lucky Star] Policy is excess only and, therefore, it has [no] obligation under the policy to pay for any loss or damage to SCP’s or Epic’s equipment until the applicable limits of the Travelers’ and/or St. Paul policies are exhausted. Travelers and/or St. Paul dispute Fireman’s Fund’s position and maintain! ] that Fireman’s Fund’s obligations under the [Lucky Star] Policy are primary and that it must pay for any loss or damage to the equipment, irrespective of the “Other Insurance” provisions in the parties’ policies.

(Compl., ECF No. 1, at ¶22.) In the original complaint, Fireman’s Fund sought relief in the form of

a judicial determination of the parties’ respective rights and obligations under the policies and a declaratory judgment that the [Lucky Star] Policy is excess over the coverage afforded under the Travelers and/or St. Paul policies ... and, that therefore, Fireman’s Fund has no obligation to make any payments under the [Lucky Star] Policy for the damaged equipment....

(Id. ¶23.) In the alternative, Fireman’s Fund sought a judicial determination that “coverage under the [Lucky Star] Policy must be equitably pro-rated taking into account the applicable limits and coverage” provided by St. Paul’s policy. (Id. ¶24.)

Fireman’s Fund filed an amended complaint in this Court on April 3, 2014, reincorporating the original claim for declaratory relief and alternative claim set forth above, but also including two new claims for declaratory relief. In the first of these, Fireman’s Fund seeks

a judicial determination of the parties’ respective rights and obligations under the policies and a declaratory judgment as to the amounts that Fireman’s Fund is obligated to pay for the property damage under the [Lucky Star] Policy, if any, after taking into account the policies’ respective “Other Insurance” clauses, all the terms and conditions of the policies, the reasonableness of Defendants’ payments for the property damage, and Defendants’ obligations to make the payments under the SCP and/or Epic policies.

(Am. Compl., EOF No. 38, at ¶ 27.) In the second new claim (and third claim for relief), Fireman’s Fund seeks a judicial determination and declaration that the reformation of the SCP Policy after the Stage Collapse was “without adequate consideration,” making St. Paul’s payments to Epic under the SCP Policy voluntary, and therefore that St. Paul is “barred from seeking contribution and/or reimbursement from Fireman’s Fund of any of the amounts it paid to Epic under the SCP policy.” (Id. ¶¶ 29, 30.)

Meanwhile, in November 2012, shortly after Fireman’s Fund initiated this action, SCP filed suit against Lucky Star in the United States District Court for the District of Nevada, seeking enforcement of the 2011 Services Agreement and demanding payment to cover the damage to the Leased Equipment in accordance with the indemnification provision in that agreement. Lucky Star answered, denying liability, and on October 3, 2014 filed a motion to dismiss for lack of subject-matter jurisdiction, on the basis that SCP had been completely reimbursed by insurance for the loss of equipment except for its insurance deductible in the amount of $7,500, making the amount in controversy less than the minimum amount required for diversity jurisdiction. SCP responded in opposition to the motion. The Nevada court ultimately granted that motion but granted the plaintiffs motion to file an amended complaint.

SCP filed its Second Amended Complaint in June 2015, adding as a plaintiff “St. Paul Fire & Marine Insurance Company, a wholly owned subsidiary of The Travelers Companies, Inc., as subrogee of Steven Cohen Productions, Ltd,” In this action, St. Paul, as subrogee, seeks to recover from Lucky Star the approximately $1.9 million paid by St. Paul to SCP to cover damages caused by the Stage Collapse, and SCP seeks to recover the “its insurance deductible in the amount of $7,500 and other litigation related expenses.” (Nevada Action, ECF No. 79, at ¶ 23.)

In the same order granting Lucky Star’s motion to dismiss and directing SCP to file an amended complaint, the Nevada district court sua sponte directed the parties to show cause why venue in that case should not be transferred to this district for consolidation with the Declaratory Judgment Action. The parties filed briefs in response to this directive, and the Nevada court entered an order transferring the Nevada Action to this Court. In reaching its conclusion that transfer of venue was warranted, the Nevada court first determined that, because SCP had never signed the underlying 2011 Services Agreement, the agreement was not a binding contract, and, because the contract was not binding, the forum-selection clause in the contract had no effect on the court’s transfer analysis. The court concluded based on the other factors relevant under 28 U.S.C. § 1404(a) that transfer was warranted.

The Nevada Action was transferred to this Court effective March 23, 2016 and reassigned to the undersigned on March 31, 2016. The two actions have now been consolidated for all purposes.

Well prior to the transfer order, SCP had filed a motion for summary judgment against Lucky Star in the Nevada Action in June 2015. (Nevada Action, ECF No. 79.) The motion is fully briefed and remains pending. Meanwhile, both parties in the Declaratory Judgment Action had filed motions for summary judgment in this Court in February 2015. The motions were administratively terminated pending resolution of the motion for summary judgment and the transfer determination in the Nevada Action. The motions have now been reinstated as pending.

III. STANDARD OF REVIEW

Rule 56 of the Federal Rules of Civil Procedure allows a party to move for summary judgment in its favor with respect to entire claims or defenses or to parts of claims or defenses. Fed. R. Civ. P. 56(a). Pursuant to Rule 56, summary judgment must be entered in favor of a movant if the “record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of' law.” Fed. R. Civ. P. 56(c)(1)(A), 56(a). To meet this burden, the moving party may rely upon the evi-dentiary materials identified in Rule 56(c)(1)(A) or may merely rely upon the failure of the opposing party to make a showing sufficient to establish the existence of one or more elements essential to that party’s case and upon which that party will carry 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); United States v. Storey, 640 F.3d 739, 743 (6th Cir.2011).

The standard of review for cross-motions for summary judgment does not differ from the standard applied when only one party to the litigation files a summary judgment motion. Ferro Corp. v. Cookson Group, PLC, 585 F.3d 946, 949 (6th Cir.2009). Each cross-motion must be evaluated on its own merits, with the Court viewing all facts and reasonable inferences in the light most favorable to the nonmov-ing party. Appoloni v. United States, 450 F.3d 185, 189 (6th Cir.2006).

IV. DISCUSSION

A. The Validity and Enforceability of the 2011 Services Agreement

The Court finds, as an initial matter, that the validity and enforceability of the 2011 Services Agreement is the keystone issue in this consolidated action, governing the insured parties’ relationship with each other and, in turn, the insurance companies’ obligations under the policies issued to Lucky Star and SCP. For that reason, the Court will address first SCP and St. Paul’s motion for summary judgment in the Nevada Action.

The Nevada district court, in the course of deciding whether to transfer venue, concluded as a threshold matter that it was “apparent” from the language of the 2011 Services Agreement that SCP’s signature was required for acceptance of the agreement' and that, because the agreement was unsigned, it did not constitute a binding contract. (March 23, 2016 Order, Nevada Action, ECF No. 108, at 7.) As a result, that court found that the forum-selection clause in the agreement was likewise not binding. Thus, the first question before this Court is whether it is constrained by the Nevada court’s conclusion. As set forth below, the Court finds that it is not so constrained and, further, that the 2011 Services Agreement is valid and enforceable.

1. The Doctrine of the Law of the Case

The law-of-the-case doctrine provides generally that findings made at one point in a litigation become the law of the case for subsequent stages of that same litigation. United States v. Moored, 38 F.3d 1419, 1421 (6th Cir.1994). See also Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983) (“As most commonly defined, the doctrine [of law of the case] posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” (citing IB Moore’s Fed. Practice (“Moore’s”) ¶ 0.404 (1982)). The doctrine applies with equal force to the decisions of coordinate courts in the same case and to a court’s own decisions. Christianson v. Colt Indus., 486 U.S. 800, 816, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988).

importantly, however, while the doctrine “directs a court’s discretion, it does not limit the tribunal’s power.” Arizona, 460 U.S. at 618, 103 S.Ct. 1382. And the same doctrine recognizes that “it is not improper for a court to depart from a prior holding if convinced that it is clearly erroneous and would work a manifest injustice.” Id. at 618 n. 8, 103 S.Ct. 1382 (citing White v. Murtha, 377 F.2d 428, 431-32 (5th Cir.1967)). Moreover, it is widely recognized that, “[a]t the trial level, the doctrine of the law of the case is little more than a management practice to permit logical progression toward judgment. Prejudgment orders remain interlocutory and can be reconsidered at any time.” Moore’s ¶ 0.404. The Court therefore finds that it is not bound by the Nevada court’s interlocutory decision regarding the validity of the 2011 Services Agreement and is convinced, as discussed below, that the ruling was clearly erroneous.

This Court will, however, adopt as the law of the case the Nevada district court’s decision to transfer the Nevada Action to this Court for consolidation with the Declaratory Judgment Action, despite the Court’s finding herein that the 2011 Services Agreement is valid and enforceable and, therefore, that the forum-selection clause would likewise, be valid. See Christianson, 486 U.S. at 816, 108 S.Ct. 2166 (noting that, because of the possibility of forcing a transferred case into perpetual litigation by. playing. “jurisdictional ping-pong,” the law-of-the-case doctrine applies “with even greater force to transfer decisions than to decisions of substantive law”).

2. The Motion for Summary Judgment in the Nevada Action

The 2011 Services Agreement, by its terms, provides that it will be governed by Nevada Law. (2011 Services Agreement ¶ 2,0.) Courts in Tennessee will honor a choice-of-law provision “if the state whose law is chosen bears a reasonable relationship to the transaction and absent a violation of the forum state’s public policy.” Wright v. Rains, 106 S.W.3d 678, 682 (Tenn.Ct.App.2003). Neither party disputes that the agreement is governed by Nevada law. Under Nevada law, contract interpretation is a question of law, Diaz v. Ferne, 120 Nev. 70, 84 P.3d 664, 666 (2004), but the question of whether a contract exists is one of fact. May v. Anderson, 121 Nev. 668, 672, 119 P.3d 1254 (2005).

In their motion for summary judgment in the Nevada Action, SCP and St. Paul argue that although neither party signed it, the 2011 Services Agreement “became effective, on its own express terms, upon the commencement of performance by SCP without written objection by [Lucky Star].” (Nevada Action, ECF No. 79, at 5.) They also argue that the Leased Equipment was “in use” at the time of the Stage Collapse and therefore, that, pursuant to Paragraph 12 of the 2011 Services Agreement, Lucky Star assumed full responsibility for the damages caused by the Stage Collapse.

In the documents filed in the Declaratory Judgment Action in this Court, Fireman’s Fund insists that no valid, enforceable contract exists because (1) the contract itself indicates that it will not be effective unless first executed by SCP, but it was never signed by SCP; (2) the agreement was not signed by either party, and under Nevada law a contract must be signed by at least one party to be enforceable; and (3) the 2011 Agreement is a lease under Nevada law and, as such, is governed by Nevada’s statute of frauds, which requires the signature of the party "against whom enforcement is sought. (ECF No. 92, at 12 (citing Nev. Rev. Stat. Ann. § 104A.2201).) In Lucky Star’s response in opposition to the motion for summary judgment in the Nevada Action, Lucky Star raises essentially the same points but also "argues that:

(1) SCP and St. Paul fail to provide evidence to establish contract formation or to support a claim for damages;

(2) the 2011 Services Agreement contains an express anti-subrogation clause, which bars recovery in this case;

(3) the “in use” clause of. ¶ 12 of the 2011 Services Agreement is “fundamentally different” from the parallel paragraph in the 2010 Agreement and there is “[n]o evidence that anyone knew this .change- had ■ been made or what it meant” or that anyone, including SCP, had assented to it (Nevada Action, ECF No. 94, at 21);

(4) the Agreement is void because of Steve Cohen’s misrepresentation that the 2011 Services Agreement was identical to the 2010 Agreement;

(5) St. Paul fails to introduce evidence to show its right to subrogation of the amounts paid to SCP and Epic; and

(6) the Court lacks jurisdiction over SCP’s claim for $7,500.

(Nevada Action, ECF No. 94.)

In their reply brief, SCP and St. Paul clarify that they seek summary judgment on only two issues: whether the 2011 Services Agreement is valid and enforceable, and whether the Leased Equipment was “in use” at the time of the Stage Collapse. They strenuously contest Lucky Star’s arguments concerning the validity and construction of the Agreement and the Court’s jurisdiction over SCP’s claims.

Because they do not seek adjudication at this time of damages, SCP and St. Paul’s motion is more properly characterized as a motion for partial summary judgment on the issue of liability only. Accordingly, each of Lucky Star’s and Fireman’s Fund’s material arguments except those concerning the computation of damages is addressed below.

1. The Statute of Frauds

The parties do not dispute that the 2011 Services Agreement is in fact a lease agreement governed by Nevada’s statute of frauds, and the Court likewise finds that the statute pertains to the claims at issue here. By its terms, Nevada’s Uniform Commercial Code—Leases “applies to any transaction, regardless of form, that creates a lease.” Nev. Rev. Stat. Ann. § 104A.2101. The term “lease” is defined as “a transfer of the right to possession and use of goods for a term in return for consideration.” Nev. Rev. Stat. Ann. § 104A.2103. Although styled as an “agreement for services,” the agreement at issue here clearly involved the transfer of the. right to possess and use goods for a limited period of time in exchange for consideration. The 2011 Services Agreement is therefore governed by the statute of frauds contained in the UCC.

For a lease contract involving payments in excess of $1,000 to be enforceable, there generally must be “a writing, signed by the party against whom enforcement is sought or by that party’s authorized agent, sufficient to indicate that a lease contract has been made between the parties and to describe the goods leased and the lease term.” Nev. Rev. Stat. Ann. § 104A.2201(l)(b). The statute also, however, provides an exception to the writing requirement: “A lease contract that does not satisfy the requirements of subsection 1 [that is, the writing requirement], but which is valid in other respects, is enforceable ... with respect to goods that have been received and accepted by the lessee.” Nev. Rev. Stat. Ann. § 104A.2201(4)(c). Because there is no dispute here that Lucky Star received and accepted the goods, the fact that it did not sign the contract does not render the contract unenforceable under the statute of frauds.

2. The Absence of Signatures on the Contract

In asserting that the contract is clearly enforceable by its own terms despite the absence of signatures, SCP and St, Paul elide over the precise wording of the contract clause to which they refer. The relevant provision states, as set forth above: “Upon SCP execution hereof, this agreement ... shall be effective ... upon ... the commencement of performance by SCP hereunder without written objection by [Lucky Star].” (2011 Services Agreement, ECF No. 62, at 4 (emphasis added).) Because SCP did not technically execute the agreement by having it signed by Steve Cohen, this provision by itself does not render the agreement effective and enforceable. Lucky Star and Fireman’s Fund argue that (1) the failure of either party to sign the contract renders it unenforceable under Nevada law; and (2) SCP’s failure to sign the contract as contemplated by the written terms thereof means that no valid, enforceable contract was formed.

(a) The Failure of Either Party to Sign the Contract

Under Nevada law, “[b]asic contract principles require, for an enforceable contract, an offer and acceptance, meeting of the minds, and consideration.” May v. Anderson, 121 Nev. 668, 119 P.3d 1254, 1257 (2005) (citing Keddie v. Beneficial Ins., Inc., 94 Nev. 418, 580 P.2d 955, 956 (1978) (Baltjer, C.J., concurring)). In other words, an enforceable contract “requires a manifestation of mutual assent in the form of an offer by one party and acceptance thereof by the other ... [and] agreement or meeting of the minds of the parties as to all essential elements.” Keddie, 580 P.2d at 957 (citations omitted)). Under these principles, the failure of either party to sign a written memorandum of their agreement is essentially immaterial. Once the parties have “agreed upon the essential terms ... an enforceable agreement exists,” and one party’s failure or even intentional refusal to sign the contract does not render it unenforceable. May, 119 P.3d at 1257.

Lucky Star and Fireman’s Fund insist that all the applicable case law in Nevada concerning the enforceability of contracts demonstrates that at least one party must have signed the contract to render it enforceable. See, e.g., U.S. Juice Corp. v. JMF Group, LLC, No. 2:06CV0288 RLHLRL, 2006 WL 2022992 (D.Nev. July 18, 2006) (denying the defendant’s motion to dismiss the breach-of-contract action, stating: “It is immaterial that one party fails to sign a written contract, if the agreement is signed by the other party. The contract binds the non-signing party if (a) he accepts it and (b) both parties act in reliance on it as a valid contract.” (citing J.A. Jones Constr. Co. v. Plumbers & Pipefitters Local 598, 568 F.2d 1292, 1295 (9th Cir.1978)). However, in these cases and the other precedent cited in the parties’ motion papers, at least one of the contractors—typically but not always the person seeking to enforce the contract— had actually signed the agreement. See also Ward v. Desert Eagle, LLC, No. 2:06-CV-00938-RCJ-LRL, 2010 WL 455089, at *8 n, 4 (D.Nev. Feb. 2, 2010) (citing J.A. Jones Construction for the proposition that a written contract is binding even if one of the parties had not signed before performing under it if both act in reliance on it as a valid contract). None of the cited cases involved a situation in which neither party technically executed the contract. In other words, these cases do not necessarily stand for the principle that a written agreement signed by neither party is not enforceable, because that was not the issue presented.

Notwithstanding, even when presented with a written contract signed by one party but not the other, the Nevada Supreme Court has suggested that the presence or absence of signatures on the contract is not necessarily dispositive. In United States Fidelity & Guaranty Co. v. Reno Electrical Works, 43 Nev. 191, 183 P. 386 (1919), the defendant surety company had executed a bond, but the plaintiff, who sought to enforce it, had not. The defendant attempted to repudiate the agreement by pointing out that the plaintiff had not signed it. The Nevada Supreme Court rejected that argument, stating:

Parties may adopt a written contract, and thus make it binding as though formally executed by both, without signing it. The copy of the contract is signed by the contractor, and respondent’s assent to it is shown by a full performance of its conditions. If a person accepts and adopts a written contract, even though it is not signed by him, he is deemed to have assented to its terms and'conditions and to be bound by them.

It appears from the allegations of the complaint that the contract alleged therein was acted upon by the parties-by the respondent in finishing the work required by the contract, and by appellant in paying more than two-thirds of the contract price for such work. The contractual relation is' evidenced by these mutual acts, and makes the contract binding on each of the parties, if neither had signed it.

Id. at 387 (emphasis added; internal quotation marks and citations omitted). In one of the cases relied upon by the Nevada court in • that case, the Illinois Supreme Court, confronted with a similar scenario, stated:

The party who accepts and adopts a written contract, though not signed by him, should be deemed to have fully assented to its terms and conditions, and is therefore bound by them.... And where the contract has been accepted and adopted by the party not signing it, he does assent and agree to it on his part, and the law implies a promise to perform. The delivery of a writing, and its acceptance and adoption by the party to whom it is delivered, are necessarily facts dehors the writing itself, and must therefore be proved by extrinsic evidence; and, where mutuality is established by proof of the acceptance of the writing, the contract is, notwithstanding such resort to parol evidence, a contract all of which is in writing.

Memory v. Niepert, 131 Ill. 623, 23 N.E. 431, 433 (1890) (internal citations omitted).

These cases and others suggest that the Nevada Supreme Court, if confronted with the precise issue, would conclude that the relevant question is not whether either party signed the written agreement but whether they otherwise manifested their intent to be bound by it. And the undisputed evidence in this case, as discussed below, overwhelmingly supports the conclusion that the parties intended to be bound by the writing, despite their failure to sign it.

(b) SCP’s Failure, to Sign the Contract

Lucky Star and .Fireman’s Fund argue—and the Nevada district court found—that SCP’s failure to sign the contract rendered it unenforceable. The court specifically found that “[n]umerous courts have held that if a written agreement indicates that a signature is required for acceptance, its terms are not binding unless the offeree actually provides a signature.” (Nevada Action, EOF No. 108, at 5.) The court found that the written terms of the agreement indicated that SCP’s signature was required and that, because SCP had not signed the contract, it was not binding.

The authority upon which the Nevada district court relied concerns, for the most part, the issue of contract formation where the written agreement at issue had not been signed by one or both parties and one of the parties sought to repudiate it early in the parties’ relationship. The- cited cases do not involve situations where the evidence established that both parties considered themselves bound by the unsigned written contract from its inception and had' both fully performed their contractual obligations. For instance, the Nevada district court cited Jim L. Shetakis Distributing Co. v. Centel Communications Co., 104 Nev. 258, 756 P.2d 1186 (1988), as holding that a party may accept an offer by “any reasonable manner” unless specific language or conduct indicates that a particular manner of acceptance is required. Id. at 1188. The Nevada Supreme Court indeed held in that case that “the circumstances indicate that a particular manner of contract formation was contemplated by the parties” and that the contract itself unambiguously stated that it would not be binding upon any party until executed by that party. Id. at 1189. As a result, the plaintiff “reasonably assumed that it would not be bound” unless it actually signed the agreement in question. Id. at 1189. Moreover, the court noted, “[i]n light of the absence of such compliance [with the method of contract formation contemplated by both parties], the evidence in this case that both parties intended to-be presently bound is neither ‘convincing’ nor is it ‘subject to no other reasonable interpretation.’” Id. (quoting Dolge v. Masek, 70 Nev. 314, 268 P.2d 919, 921 (1954)). In other words, there was essentially no countervailing evidence to support the conclusion in that case that a contract had been formed despite the absence of the plaintiffs signature.

Dolge likewise concerned contract formation. In that case, the Nevada Supreme Court cited and relied on a statement by the Maine Supreme Court:

If the written draft is viewed by the parties merely as a convenient memorial, or record of their previous contract, its absence does not affect the binding force of the contract. If, however, it is viewed as the consummation of the negotiation, there is no contract until the written draft is finally signed. In determining which view is entertained in any particular case, several circumstances may be helpful, as whether the contract is of that class which are usually found to be in writing, whether it is of such nature as to need a formal writing for its full expression, whether it has few or many details, whether the amount involved is large or small, whether it is a common or unusual contract, whether the negotiations themselves indicate that a written draft is contemplated as the final conclusion of the negotiations.

Dolge, 268 P.2d at 921 (quoting Ms. & Dominion Steamship Co. v. Swift, 86 Me. 248, 29 A. 1063, 1067 (1894)). The Dolge court further observed “that some measure of agreement is usually manifested as a basis for preparation of a written draft of agreement,” and held that, “[i]f upon rejection of such draft, such manifestation of agreement is to be held to constitute binding contractual assent, the evidence that the parties had intended presently to be bound should, in our view, be convincing and subject to no other reasonable interpretation.” Id. at 921. The evidence that the parties intended to be bound by the unsigned contract in that case was not convincing, particularly in light of the terms of the written agreement itself, the absence of significant partial performance of the contract, and the fact that the written contract also incorporated the respondents’ relinquishment of interest in real property which, under Nevada law, was required to be in writing.

In the case at bar, the parties’ intent is not manifested solely by the terms of the written contract itself. Rather, the unequivocal and undisputed evidence establishes beyond any doubt that both parties believed they had entered into a binding contract and, perhaps most importantly, both parties fully performed all their material obligations under the contract.

From the outset, it is notable that Steve Cohen himself “delivered” the written contract to Lucky Star’s management team, attached to an email that itself unambiguously confirmed his acceptance of the terms of the contract. In the email to Hellen Rollens, he stated:

Attached is a zip folder with the contract for this year and the weekly invoices for the lighting and video production package.

The contract is exactly the same as the previously executed one from last year, and the billing is consistent with how we billed last year.

The only change is that the weekly has increased by 2500.00 per week (over the 24 weeks) to partially compensate for Joe Weir’s salary....

(Rollens Dep. Ex. 16, EOF No. 93-6, at 2.) It was signed: “Best; Steve Cohen.” The email with Steve Cohen’s electronic signature constitutes, at the very least, a writing manifesting his adoption of the contract. Following this email, the only communications between Lucky Star and SCP concerning the terras of the contract were for the purpose of ironing out some misunderstanding about the payments to cover Joe Weir’s salary. Those exchanges do not manifest continuing negotiations or an actual dispute regarding changes to the contract terms, however. Instead, they indicate confusion on the part of Lucky Star as to what its obligations were. Once it understood, it apparently complied without objection, accepting delivery of the Leased Equipment and SCP’s services in connection therewith and submitting all payments when due.

Further, the parties stipulated that Rol-lens forwarded the contract to Michael Vaden, Lucky Star’s business manager, and Vaden never raised any objection to the contract terms. According to his own testimony, when Vaden received the 2011 Services Agreement, he simply ensured that Lucky Star had insurance coverage in accordance with its obligations under the agreement. And no one, at any time, raised any objection about or appeared even to notice that no one had signed the 2011 contract.

Finally, principles of equitable estoppel militate in favor of finding an enforceable contract in this case. “In order for the doctrines of estoppel or part performance to apply, Nevada law requires proof by ‘some extraordinary measure or quantum of evidence.’ ” 26 Beverly Glen, LLC v. Wykoff Newberg Corp., 334 Fed.Appx. 62, 64 (9th Cir.2009) (quoting Zunino v. Paramore, 83 Nev. 506, 435 P.2d 196, 197 (1967)). The doctrines apply in cases involving an allegedly binding written agreement. Id. at 64 n. 1. “To constitute estoppel, ‘the party relying on it must be influenced by the acts or silence of the other and it must appear that the acts or