                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-2415


PERINI/TOMPKINS JOINT VENTURE,

                Plaintiff – Appellant,

           v.

ACE AMERICAN INSURANCE COMPANY,

                Defendant – Appellee.

-------------------------------

ASSOCIATED GENERAL CONTRACTORS OF AMERICA; MARYLAND CHAPTER
OF THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA,

                Amici Supporting Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.     Peter J. Messitte, Senior District
Judge. (8:10-cv-03494-PJM)


Argued:   October 30, 2013                 Decided:   December 16, 2013


Before SHEDD and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by published opinion. Judge Thacker wrote the opinion,
in which Judge Shedd and Senior Judge Hamilton joined.


ARGUED: Gregory David Podolak, SAXE DOERNBERGER & VITA, P.C.,
Hamden, Connecticut, for Appellant.   Joseph K. Powers, SEDGWICK
LLP, New York, New York, for Appellee. ON BRIEF: Tracy A. Saxe,
SAXE DOERNBERGER & VITA, P.C., Hamden, Connecticut, for
Appellant. Timothy D. Kevane, SEDGWICK LLP, New York, New York,
for Appellee. Joseph C. Kovars, OBER, KALER, GRIMES & SHRIVER,
Baltimore, Maryland; Patrick J. Wielinski, COKINOS, BOSIEN &
YOUNG, Irving, Texas, for Amici Supporting Appellant.




                               2
THACKER, Circuit Judge:

            Perini/Tompkins Joint Venture (“PTJV” or “Appellant”)

appeals the district court’s grant of summary judgment in favor

of ACE American Insurance Co. (“ACE” or “Appellee”).                          PTJV filed

suit,    claiming     coverage    under           primary    and     excess      insurance

policies with regard to a large-scale construction project in

Oxon    Hill,    Maryland.      The    district        court    determined         ACE   was

entitled to summary judgment because PTJV did not obtain ACE’s

consent     before     settling        the        underlying       dispute       regarding

property damage at the construction site and, pursuant to the

insurance contract, PTJV was required to do so at the risk of

relinquishing       coverage.          We    hold     that     under       Maryland      and

Tennessee law, PTJV violated the terms of both the primary and

excess     policies     by      not     obtaining           ACE’s        consent    before

settlement, and as such, cannot now claim reimbursement under

those policies.       We thus affirm the district court.

                                             I.

                                             A.

                                  The Project

            In 2005, Gaylord National LLC (“Gaylord”) hired PTJV,

a joint venture between the Perini Building Company and Turner

Construction Company, to serve as manager in connection with the

construction of a $900 million hotel and convention center in

Oxon     Hill,    Maryland      (the        “Project”).             As    part     of    the

                                             3
construction contract between PTJV and Gaylord (the “Contract”),

Gaylord    agreed     to    purchase    and    maintain      an    Owner   Controlled

Insurance Program (“OCIP”), which was a program crafted and sold

by ACE to insure only the Project and its participants.

            Gaylord        then   purchased    from    ACE    an    OCIP   Commercial

General    Liability        Insurance      Policy     (the    “Primary        Policy”),

providing a limit of $2 million per occurrence, and an OCIP

Excess Liability Policy (the “Excess Policy”), providing a limit

of $25 million per occurrence (collectively, the “Policies”).

The Policies provided coverage for the period from May 23, 2005,

to August 30, 2008.           By endorsement, PTJV was added as a named

insured    on   the   Policies.      The    Project    was     also    insured    by   a

Builders Risk Policy through Factory Mutual Insurance Company

(“FM Global”).

            During construction of the signature feature of the

building        --    an      18-story,        2,400         ton      glass      atrium

-- serious property damage occurred.                The damage is described in

the Complaint as follows:

     10. A significant portion of the Project involved the
     construction of a glass roof atrium.    The atrium was
     composed of numerous subsections, called trusses, that
     were preassembled on the ground and lifted via crane
     into place.   Each truss contained several components,
     including supportive tension rods that were connected
     by rod/clevis junctures.

     11. The atrium was under construction on or about
     August 28, 2007 while Truss H4 was lifted into
     position and, on or about August 31, 2007, certain

                                           4
      components were added to the atrium                  that placed
      additional pressure and tension on Truss             H4, causing,
      unbeknownst to either Gaylord or PTJV,                one of the
      rod/clevis junctures on Truss H4 to slowly           erode.

      12. On September 5, 2007, the rod/clevis juncture on
      Truss H4, which began eroding no later than August 31,
      2007, failed.   That failure caused a loss of tension
      that substantially impaired the structural integrity
      of the atrium (the “Collapse”).

      13. The Collapse caused damage to various components
      of the Project and required a temporary suspension of
      the Project and such damages were neither expected nor
      intended from the standpoint of PTJV.

J.A. 21. 1    A representative from ACE was on site at the Project

at the time of the Collapse and thereafter.                 The Project was

scheduled to be completed in December 2007, but due to various

delays (including the Collapse), the completion date was pushed

to March 2008.

                                        B.

                           The Underlying Litigation

             After   the    Project   was    completed,   litigation    ensued.

On September 18, 2008, PTJV filed a complaint against Gaylord

for establishment and enforcement of a mechanic’s lien, breach

of   contract,   quantum      meruit,   and    violation   of   the    Maryland

Prompt Payment Act.          See Perini/Tompkins Joint Venture, et al.

v. Gaylord Nat’l, LLC, No. CAE08-24316 (Cir. Ct. Md. Sept. 18,


      1
       Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.



                                        5
2008) (the      “PTJV   action”).        PTJV    alleged    Gaylord         still    owed

$79,656,098     under     the    Contract     and   asked       for    damages       plus

interest, costs, and fees.              The claims were based on the costs

allegedly incurred due to Gaylord’s late delivery of the Project

designs and its alleged changes to the original scope of the

work.

           Subsequently,           on     October         10,     2008,        Gaylord

countersued,     filing    a     complaint      against    PTJV       for   breach    of

contract and breach of fiduciary duty.                See Gaylord Nat’l, LLC

v. Perini/Tompkins Joint Venture, No. CAE08-27201 (Cir. Ct. Md.

Oct. 10, 2008) (the “Gaylord action”).                     Gaylord claimed PTJV

failed to properly manage scheduling, costs, and budgets, and

failed to build a high-quality project at the agreed-upon price.

Specifically, Gaylord alleged it paid PTJV $802,085,712, when it

should   have    only     paid    $737,091,338.           Thus,   Gaylord       sought

reimbursement of approximately $65 million in damages resulting

from the alleged overpayment.             Notably, PTJV did not notify ACE

of the Gaylord action.

           Gaylord      and      PTJV    settled    the     Gaylord         action    on

November 26, 2008. 2       Gaylord paid an additional $42,301,875 (for


     2
       Gaylord filed a motion to consolidate the PTJV action and
the Gaylord action in circuit court on November 6, 2008, but it
does not appear the motion was ever ruled upon. The PTJV action
was dismissed by stipulation on January 23, 2009.



                                          6
a total of almost $845 million) and PTJV credited $26,157,912

back to Gaylord.       Crucial to this appeal, PTJV never sought to

obtain ACE’s consent prior to entering into this settlement.

                                       C.

                         The Coverage Litigation

             On May 6, 2009, almost six months after the settlement

and nearly two years after the Collapse, PTJV sent a letter to

ACE advising that, to the extent FM Global did not pay the claim

related to the Collapse, PTJV intended to seek reimbursement

from ACE.     This letter was the first formal, written notice of a

claim   to   ACE,    although    ACE   concedes    its    representative   was

present on the site when the Collapse occurred.                 However, this

letter did not mention the settlement or the Gaylord action at

all.    Over ten months later, on February 23, 2010, ACE issued a

reservation     of    rights     letter,    citing       “[b]usiness    [r]isk”

exclusions,    late    notice,   and   voluntary     payments    made   without

ACE’s consent as potential grounds for denial of coverage.                   On

April 29, 2010, FM Global denied PTJV’s claims.

             After    several    additional   months       of   back-and-forth

between PTJV and ACE, on December 13, 2010, PTJV filed suit

against ACE in the United States District Court for the District

of Maryland, alleging

             (1)    Count   One:   breach    of   contract/bad
             faith/implied covenant of good faith and fair
             dealing (ACE “refused and/or neglected to pay any

                                       7
            portion of the [c]laims [regarding the Collapse]
            pursuant to the Primary Policy or the Excess
            Policy and is in breach of its contractual
            obligations to PTJV.”);

            (2)   Count  Two:  a  declaratory judgment  “to
            determine the rights and duties of PTJV and ACE
            pursuant to the Primary Policy and the Excess
            Policy”; and

            (3) Count Three: bad faith under Tennessee law
            based on, inter alia, ACE “intentionally and/or
            recklessly t[aking] direction from another named
            insured to deny PTJV’s claim,” and “engag[ing] in
            unwarranted delay tactics.”

J.A. 13-15.

            ACE filed a motion to dismiss on February 15, 2011,

and the district court denied the motion in part on September 1,

2011, but ordered that limited discovery be conducted on issues

regarding     late   notice   to   ACE,   including   any   corresponding

prejudice.     After discovery, ACE filed a summary judgment motion

on August 17, 2012.       The district court held oral argument on

October 22, 2012, and orally granted summary judgment in favor

of ACE.   The district court explained,

            [It]     really    is     not    disputed      that
            . . . the settlement occurred without consent.

            . . .

            What’s clear is that the defendant was not given
            an   opportunity    to  enter    into   settlement
            negotiations in any way to determine whether the
            concessions that were being made by the . . .
            plaintiff   in   this  case   were   in  any   way
            reasonable, whether there was any collusion
            because there were other claims going back and


                                     8
             forth, and this carrier clearly did not involve
             itself.

             . . .

             [T]he Court is prepared to find that there is a
             reasonable dispute as to notice of the occurrence
             and even arguably as to notice of claim.      The
             problem here is with the notice of settlement.
             Now, the Court feels as a matter of law, the
             defendant . . . w[as] entitled to notice of the
             settlement    negotiations    to  intervene,   to
             investigate, to challenge[.]”

J.A. 88-89, 92.        A formal order issued the next day, October 23,

2012, granting summary judgment for the reasons stated on the

record at the hearing.         This timely appeal followed.

                                            II.

                Before we proceed to the merits of this appeal, we

first    decide      the    proper    law        to    apply.        A    federal      court

exercising diversity jurisdiction must apply the choice of law

rules of the state in which it sits.                    See Seabulk Offshore, Ltd.

v. Am. Home Assurance Co., 377 F.3d 408, 418–19 (4th Cir. 2004).

In   this diversity        action,    the        district   court        was    correct   in

applying Maryland’s choice of law rules.                        See CACI Int’l, Inc.

v. St. Paul Fire and Marine Ins. Co., 566 F.3d 150, 154 (4th

Cir.    2009)    (“Because    we     have    diversity         jurisdiction       in   this

case,   we   apply    the    choice    of        law   rules    of   the       forum   state

. . . .”).

             In insurance contract disputes, Maryland follows the

principle of lex loci contractus, which applies the law of the

                                             9
jurisdiction where the contract was made.     Allstate Ins. Co. v.

Hart, 611 A.2d 100, 101 (Md. 1992).    For choice of law purposes,

a contract is made where “the last act is performed which makes

the agreement a binding contract.     Typically, this is where the

policy is delivered and the premiums are paid.”        Sting Sec.,

Inc. v. First Mercury Syndicate, Inc., 791 F. Supp. 555, 558 (D.

Md. 1992) (internal quotation marks, citations, and alteration

omitted).   In this case, that state is Tennessee. 3

            Under certain circumstances, however, Maryland choice

of law rules follow the renvoi doctrine, an exception to the lex

loci contractus rule.     Under this exception, a Maryland court

may disregard the rule of lex loci contractus and apply Maryland

law, if

    1) Maryland has the most significant relationship, or,
    at least, a substantial relationship with respect to
    the contract issue presented; and

    2) The state where the contract was entered into would
    not apply its own substantive law, but instead would

    3
       Gaylord, the sponsor of the Policies, has its principal
place of business in Nashville, Tennessee.    The Policies were
issued to Gaylord, whose address is listed on the Policies as
being in Nashville, Tennessee.     The broker who procured the
Policies is Willis of Tennessee, Inc., with an address in
Nashville, Tennessee. All of the “services offered by Willis of
Tennessee in connection with the procurement of the Policies
were performed out of [the] Nashville, Tennessee office.” J.A.
51.    Additionally, the policies were delivered to and were
received by both Gaylord and Willis in Tennessee and Gaylord
forwarded payment for the Policies’ premiums from its offices in
Tennessee.



                                 10
     apply Maryland substantive law to the issue before the
     court.

See Am. Motorists Ins. Co. v. ARTRA Group, Inc., 659 A.2d 1295,

1304 (Md. 1995).

            We   recognize,         however,       “[c]hoice    of    law    analysis

becomes    necessary    .   .   .    only     if    the    relevant   laws    of   the

different states lead to different outcomes” and where the laws

“do not so conflict, the choice is immaterial, and the law of

the forum -- Maryland -- governs.”                   Lowry’s Reports, Inc. v.

Legg Mason, Inc., 271 F. Supp. 2d 737, 750 (D. Md. 2003)); see

also Int’l Adm’rs, Inc. v. Life Ins. Co. of N. Am., 753 F.2d

1373, 1376 n.4 (7th Cir. 1985) (“Conflicts rules are appealed to

only when a difference in law will make a difference to the

outcome.”).      As    explained       below,      under    either    Tennessee     or

Maryland law, the outcome is the same.

                                        III.

            We review a district court’s grant of summary judgment

de novo.     See Francis v. Allstate Ins. Co., 709 F.3d 362, 366

(4th Cir. 2013).        We also review de novo a district court’s

decision on an issue of contract interpretation.                       See Seabulk

Offshore Ltd. v. Am. Home Assurance Co., 377 F.3d 408, 418 (4th

Cir. 2004).      Summary judgment is appropriate “only if . . .

‘there is no genuine issue of material fact and that the moving




                                         11
party is entitled to a judgment as a matter of law.’”                             Id.

(quoting Fed. R. Civ. P. 56(c)).

                                         A.

                                    The Policies

             In essence, this is a simple contract interpretation

case.   See Rouse v. Fed. Ins. Co., 991 F. Supp. 460, 465 (D. Md.

1998)   (“It       is     axiomatic    that    an     insurance       contract     is

interpreted like any other contract.                If the policy’s language

is   clear   and    unambiguous,      the   Court   will     assume   the   parties

meant what they said . . . .” (citations omitted)).                    As with any

contractual        dispute,    we     start    with    the     relevant      policy

provisions.         See   Prince    George’s   Cnty.    v.    Local    Gov’t     Ins.

Trust, 879 A.2d 81, 88 (Md. 2005) (“In interpreting an insurance

policy, as with any contract, the primary task of the circuit

court is to apply the terms of the policy itself.”).

             The Primary Policy contains the following provisions:

      (1) Right and duty to defend clause: “We will have the
      right and duty to defend the insured against any
      ‘suit’ seeking [property] damages. . . . We may, at
      our discretion, investigate any ‘occurrence’ and
      settle any claim or ‘suit’ that may result[.] . . .
      Our right and duty to defend end when we have used up
      the applicable limit of insurance in the payment of
      judgment or settlements . . . .” J.A. 305, 310.

      (2) Voluntary payment clause: “No insured will, except
      at that insured’s own cost, voluntarily make a
      payment, assume any obligation, or incur any expense,
      other than for first aid, without our consent.” J.A.
      314.


                                         12
      (3) No-action clause: “No person or organization has a
      right under this Coverage Part: . . . [t]o sue us on
      this Coverage Part unless all of its terms have been
      fully complied with. A person or organization may sue
      us to recover on an agreed settlement . . . .        An
      agreed settlement means a settlement and release of
      liability signed by us, the insured and the claimant or
      the claimant’s legal representative.” J.A. 314.

The   Excess   Policy   likewise   contains     similar    duty   to   defend,

voluntary payment, and no-action clauses.             See J.A. 377-378.

                                     B.

                                Maryland Law

                                     1.

                                Statutory Law

           Section 19-110 of the Maryland Code provides,

      An insurer may disclaim coverage on a liability
      insurance policy on the ground that the insured or a
      person claiming the benefits of the policy through the
      insured has breached the policy by failing to
      cooperate with the insurer or by not giving the
      insurer   required   notice   only  if   the   insurer
      establishes by a preponderance of the evidence that
      the lack of cooperation or notice has resulted in
      actual prejudice to the insurer.

Md. Code Ann. § 19-110 (emphasis added).              PTJV relies heavily on

this statute and argues that ACE’s denial of coverage centers on

PTJV’s   alleged   “lack   of    notice”   of   the    claim   regarding   the

Collapse and “lack of cooperation” in PTJV’s failure to notify

ACE of the Gaylord claim and settlement.              As such, it contends,

ACE must show actual prejudice before denying coverage, which is

an issue of fact that should survive summary judgment.


                                     13
              ACE, in contrast, maintains that regardless of whether

PTJV provided them with timely notice of the claim (or whether

they    had        constructive         knowledge        through     their    on-site

representative), there is no dispute that PTJV did not obtain

ACE’s consent before settlement, in violation of the voluntary

payment    and       no-action     clauses.         ACE     argues    prejudice      is

irrelevant in this instance, but even if ACE were required to

show prejudice, we should infer prejudice as a matter of law

because “ACE was left in the dark during the pendency of the

underlying         litigation     and     the    negotiations      leading    to     the

finalization        of   the    settlement,”      and    otherwise,    ACE    will   be

“placed in the impossible position of having to prove a negative

. . . .”      Appellee’s Br. 19.

              We agree with ACE that “[t]he central issue in this

appeal is whether the insured . . . can unilaterally settle a

construction defect case . . . , present the settlement to its

liability insurer as a fait accompli, and obtain indemnification

despite    its      blatant     breach     of    clear    and   unambiguous    policy

provisions.”        Appellee’s Br. 1.

              We     find      Phillips    Way,     Inc.     v.    American    Equity

Insurance Co. to be particularly instructive in dissecting this

case.      See 795 A.2d 216 (Md. Ct. Spec. App. 2002).                         There,

Phillips Way, a construction company, contracted to design and

construct a clubhouse for the University of Maryland.                         See id.

                                            14
at     217.      During     the    course        of    the    construction,           several

architectural and design defects arose, and Phillips Way decided

to   settle      complaints       about    these        problems        to    the    tune    of

$260,000,       without     notifying      its        insurance     carrier,         American

Equity.       Once the project had been accepted by the University,

Phillips Way made a claim against American Equity for $260,000.

See id. at 217-18.               The contract between American Equity and

Phillips       Way   contained     a     no-action       clause     which       stated,      in

relevant part,

       No action shall be maintained against the Company by
       the Insured to recover for any loss under this
       Insurance Policy unless, as a condition precedent
       thereto, the Insured shall have fully complied with
       all the terms and conditions of this Insurance Policy,
       nor until the amount of such loss has been fixed or
       rendered certain by . . . agreement between the
       parties with the written consent of the Company.

Id. at 216-17.

               Just like PTJV in this case, Phillips Way argued that

Md. Code. Ann. § 19-110 applied, and as such, American Equity

was required to show they were prejudiced by its failure to

obtain    consent     before      settlement.           But   the   Court       of    Special

Appeals       held   that   section       19-110       should     not    be    read     to    be

“applicable to any defense raised by the insurer.”                             795 A.2d at

219.           Specifically,        it      explained         section          19-110        was

“inapplicable        when   an    insurer    defends         on   the    basis      that     its




                                            15
insured failed to meet the condition precedent set forth in a

no-action clause . . . .”     Id. at 221.      It continued,

      From the perspective of the insurer, one of the main
      purposes of a no action clause is to protect it from
      collusive   or    overly    generous    or  unnecessary
      settlements by the insured at the expense of the
      insurer.   That   last-mentioned    purpose  would   be
      difficult to accomplish if an insured could disregard
      the no-action clause, sue its insurer, and put the
      nearly impossible burden on the latter of showing
      collusion or demonstrating, after the fact, the true
      worth of the settled claim.

Id. at 220-21 (internal quotation marks omitted).

            Phillips Way is directly applicable to the case at

hand.   The no-action clause in this case states that the insured

cannot sue under the Policies “unless all of its terms have been

fully   complied   with.”    J.A.     314   (emphasis   added).      It   also

states that PTJV can sue to recover on a settlement only if the

“settlement and release of liability” is “signed by [ACE].”               Id.

The   voluntary    payment   clause    requires   ACE’s    consent    before

“voluntarily mak[ing] a payment, assum[ing] any obligation, or

incur[ring] any expense,” at the risk of relinquishing coverage.

J.A. 314.    These are conditions precedent to PTJV’s ability to

obtain coverage, that is, “fact[s], other than mere lapse of

time, which, unless executed, must exist or occur before a duty

of immediate performance of a promise arises.”             Chirichella v.

Erwin, 310 A.2d 555, 557 (Md. 1973) (internal quotation marks

omitted).    “[W]here a contractual duty is subject to a condition


                                      16
precedent,     whether       express    or    implied,         there      is    no   duty    of

performance and there can be no breach by nonperformance until

the condition precedent is either performed or excused.”                              Laurel

Race Course, Inc. v. Regal Constr. Co., 333 A.2d 319, 327 (Md.

1975).

              ACE advances the same argument as the one in play in

Phillips Way: because PTJV did not meet the condition precedent

in the no-action clause (that is, it did not obtain consent

before   settlement),         it    cannot        now    sue    ACE.           Phillips     Way

directly vindicates this argument.                        Indeed, it is undisputed

that   PTJV    did    not    obtain    ACE’s       consent     to    settlement       before

settling with Gaylord.             Thus, PTJV cannot satisfy the conditions

precedent of the voluntary payment and no-action clauses, as

they “attempt[ed] to settle” and “voluntarily ma[d]e a payment”

“without [ACE’s] consent,” (voluntary payment clause) and did

not ensure the “settlement and release of liability [was] signed

by [ACE]” (no-action clause).                  J.A. 314, 378.               The no-action

clause also states PTJV has no right to sue “unless all of [the

Policies’]      terms       have    been     fully        complied        with,”     and     as

explained above, PTJV did not comply with all of the Policies’

terms.

              We     also   note    that,     to    the     extent     PTJV      argues     the

voluntary     payment       and    no-contest           clauses     are    implicated        by

section 19-110’s “lack of cooperation and notice” provisions,

                                             17
Phillips Way rightly rejected that argument.                           See Phillips Way,

795   A.2d   at     218    (Even     “if   [the       insured]       had   notified      [the

insurer] of the intended settlement and gave the latter its full

cooperation,        the    condition       precedent         would     still      have   been

breached if [the insurer] failed to give its written consent to

that settlement.”); id. at 220 (stating, “an insurer must show

prejudice only if it raises a failure to cooperate defense or a

defense based on lack of notice,” and distinguishing cooperation

and notice clauses from no-action clauses because cooperation

and notice clauses “are contained in separate paragraphs from

the ‘no-action’ clause,” and in no-action clauses, usually “the

amount of liability, as well as the issue of liability, must

both have been determined” (internal quotation marks omitted));

see   also   J.A.     314    (Primary      Policy,         no-contest      and     voluntary

payment clauses separate from notice and cooperation clauses),

378 (Excess Policy, same).

             Therefore, because section 19-110 does not apply here,

there is no statutory ground requiring ACE to show prejudice.

Nonetheless,        PTJV    urges     us   to       find   that   ACE      must    yet   show

prejudice     under        Maryland    common         law.        As    explained        next,

however,     even    if    this     were   a    correct      statement       of    the   law,

prejudice can be inferred as a matter of law.




                                               18
                                          2.

                                     Common Law

            PTJV and amici in this case argue that even if there

is no statutory mandate that ACE show prejudice, ACE is still

required   to     do   so   under    common    law.        We    disagree    and   read

Phillips Way broadly as holding that an insured’s failure to

obtain the insurer’s prior consent to a settlement does not ever

require prejudice, primarily because -- whether statutory-based

or   common     law-based       --   an   insurer     would      always     have   “the

impossible burden . . . of showing collusion or demonstrating,

after the fact, the true worth of the settled claim.”                        795 A.2d

at 221.

            But even assuming ACE were required to show prejudice

outside the ambit of section 19-110, we would be obliged to

conclude ACE was prejudiced as a matter of law.                             In Prince

George’s County v. Local Gov’t Ins. Trust, the Maryland Court of

Appeals    held    that     a   trust,    acting      as    an    excess    liability

insurer, was prejudiced as a matter of law when it was not

notified of a claim until after its resolution.                     See 879 A.2d 81

(Md. 2005).     The court explained,

     [T]he insured has presented the insurer with a fait
     accompli by delaying notice until after the judgment.
     The delay vitiates the purpose of the contractual
     notice requirement, as the insurer cannot exercise any
     of its rights to investigate, defend, control, or
     settle the suit.   Accordingly, courts have held that
     the insurer is prejudiced as a matter of law. . . .

                                          19
     By failing to notify the [insurer] of the incident,
     claim, and lawsuit until after the judgment, the
     [insured]   nullified   unilaterally   all   of   the
     [insurer]’s rights and presented the [insurer] with a
     fait accompli. . . .

     [The insured] put the [insurer] in a position of
     proving a negative and speculating about what could
     have been. The [insurer] need not speculate. By
     itself, the abrogation of all of the [insurer’s]
     contractual rights constituted prejudice.    We hold
     that the [insurer] was prejudiced as a matter of law
     when the [insured] failed to notify the [insurer] of
     the incident, claim, and lawsuit until after an
     adverse judgment was entered.

Id. at 98, 100. 4    We see no reason why this case -- wherein the

insured   actually   paid   a   settlement,    thereby    cutting   off   the

insurer’s right to “investigate, defend, control, or settle” a

suit -- commands a result different from Prince George’s County.

879 A.2d at 98.

            We   would   therefore    affirm     the     district   court’s

decision under Maryland law, regardless of whether prejudice is

required.


     4
       We have also had occasion to address this issue in the
recent past.   In Minn. Lawyers Mut. v. Baylor & Jackson PPLC
(“MLM”), --- F. App’x ----, No. 12-1581, 2013 WL 3215246 (4th
Cir. June 27, 2013), we concluded that under Maryland law, a
professional liability insurer was prejudiced when a law firm
failed to provide timely notice of a claim and MLM had “the
exclusive right to investigate, negotiate and defend CLAIMS
seeking DAMAGES against the INSURED.”   2013 WL 3215246 at *7.
We explained, “[b]y the time MLM received notice of a possible
claim, the harm supporting the malpractice judgment was
irreversible.” Id.



                                     20
                                             C.

                                     Tennessee Law

              We   would    also     affirm       the    district      court’s     judgment

under Tennessee law.             First and foremost, the Court of Appeals

of Tennessee has stated, “Contracts of insurance, like other

contracts,      are   to    be     construed       according          to    the   sense    and

meaning of the terms which the parties have used, and if they

are   clear    and    unambiguous,       their      terms       are    to    be   taken    and

understood in their plain, ordinary, and popular sense.”                                 Jones

Masonry, Inc. v. W. Am. Ins. Co., 768 S.W.2d 686, 687 (Tenn. Ct.

App. 1988).

              In   Anderson        v.   Dudley          Moore    Insurance        Co.,    the

Tennessee Court of Appeals held that when an insurance agency

failed to process paperwork for a potential insured and then

paid a settlement to the insured without notifying their errors

and omissions (“e&o”) carrier, the agency could not recover from

the   e&o     carrier      because      it   violated       the       voluntary     payment

clause.     See 640 S.W.2d 556 (Tenn. Ct. App. 1982).                             The court

explained, “Although [the e&o carrier] had notice of a potential

demand, plaintiff never made any formal request that the carrier

investigate, defend, or pay the claim until long after it had

made the ex parte payment to [the insured],” and this “was in

express violation of the [voluntary payment] provision[].”                                Id.

at 560.       The court also rejected the notion that the voluntary

                                             21
payment     clause     “relate[d]      only    to        disbursements        involving

expenses of litigation and investigation,” explaining that if

this were true, “an insured with ‘e&o’ coverage could determine

what sums to pay when a claim is made and thereafter make demand

upon the carrier for reimbursement without the carrier having

any   input    in    the    process.        Such     a    construction        would    be

extremely     illogical         and   unreasonably            restrictive.”           Id.

Furthermore, “it would require that the express words contained

in the agreement be ignored.”          Id.

            Similarly, in State Auto. Ins. Co. v. Lashlee-Rich,

the Court of Appeals of Tennessee held an insured that violated

a voluntary payment clause in an insurance policy was precluded

from claiming coverage under that policy.                      See No. 02A01-9703-

CH-71, 1997 WL 781896 (Tenn. Ct. App. 1997).                       In that case, a

construction        company      (Lashlee-Rich)           accidentally         hit     an

electrical wire while doing construction work, putting a nearby

ice cream toppings business in peril of losing its inventory.

Lashlee-Rich      quickly     contracted      with       an   electric   company       to

perform     the     necessary     repairs     and    then       sought   to    collect

reimbursement from State Auto, its insurer.                      Although Lashlee-

Rich notified State Auto of the occurrence the following day, it

did not mention that it had assumed an obligation to pay the

electric company.          The insurance contract in that case, like in



                                        22
the case at hand, contained a voluntary payment clause and a no-

action clause.     See id. at *2-3.

            The   court    held,      “Lashlee     attempted     to   bypass    the

plain,    unambiguous     language      in   the    insurance     contracts     and

thereby divest State Auto of its rights to oversee the handling

of any claim.”          Lashlee-Rich, 1997 WL 781896 at *4.                   In so

doing, “undoubtedly, Lashlee-Rich violated the clear language of

the policies by assuming an obligation, voluntarily making a

payment and incurring an expense without State Auto’s consent.

Lashlee-Rich did all of the foregoing to their own peril.”                       Id.

at *5.

            This case is similar to both Anderson and Lashlee-

Rich.     Here, PTJV took matters into its own hands, admittedly

without obtaining consent from ACE, which divested ACE of its

rights    under   the    Policies,     and   violated    the     terms   of     such

Policies.

            As for prejudice, PTJV points to Alcazar v. Hayes, a

landmark case in which Tennessee adopted the following policy:

     [O]nce it is determined that the insured has failed to
     provide timely notice in accordance with the insurance
     policy, it is presumed that the insurer has been
     prejudiced by the breach.   The insured, however, may
     rebut   this   presumption  by   proffering  competent
     evidence that the insurer was not prejudiced by the
     insured’s delay.

982 S.W.2d 845, 856 (Tenn. 1998).                  However, Alcazar did not

address   situations      of   fait   accompli,     which   we   have    here    and

                                        23
which were present in Anderson and Lashlee-Rich.            Thus, those

holdings   --   which   did   not   even   factor   prejudice   into    the

equation -- still remain good law.            Therefore, we predict the

highest court in Tennessee would likewise resolve the case at

hand under Anderson and Lashlee-Rich, without requiring ACE to

demonstrate prejudice. 5

           We   would   therefore    affirm    summary   judgment      under

Tennessee law as well.




     5
       In its reply brief, PTJV cites a 2005 Tennessee case for
the proposition that Alcazar extends to cases such as the one at
hand, but that case does not deal with a fait accompli
situation.   See Appellant's Rep. Br. 20 (citing Smith & Nephew
v. Fed. Ins. Co., No. 02-2455, 2005 WL 3434819, at *3 (W. D.
Tenn. Dec. 12, 2005)).    First of all, the Smith & Nephew case
PTJV cites (a clarification order regarding fees) explicitly
states that Alcazar deals with a breach of a “notice provision.”
Smith & Nephew, 2005 WL 3434819, at *3.      As explained above,
this case is about consent to settlement, not notice.         In
addition, a closer examination of facts set forth in the earlier
Smith & Nephew opinion reveals that the insured provided notice
of litigation early on, but the insurer declined to get
involved. After this notice was given, the insured settled the
case, and the insurer did not consent to “fees and expenses”
incurred by the insured.    Smith & Nephew v. Fed. Ins. Co., No.
02-2455, 2005 WL 3134053, at *3 (W.D. Tenn. Nov. 23, 2005).
Thus, in Tennessee, there is a distinct difference between an
insurer being provided late notice while litigation is ongoing
or has not yet begun, and being surprised with a claim for
settlement reimbursement after the matter has already been
resolved.



                                    24
                                          D.

                                        Waiver

            PTJV     argues    ACE    “waived     [its]      late       notice/voluntary

payment defense,” or at least, this is an issue of fact that

should    survive        summary   judgment.          Appellant’s         Br.       56.     It

contends    “ACE    consistently        turned    a   blind       eye    to    the    Atrium

Failure, ignored PTJV’s claim for unreasonably long periods of

time and even went so far as to tell PTJV it would pay the

claim.”    Id. at 57.

            Under Maryland and Tennessee law, a waiver requires

the “intentional relinquishment of a known right existing for

the benefit of the insurer.”                 Gov’t Emps. Ins. Co. v. Group

Hosp. Med. Servs., Inc., 589 A.2d 464, 466 (Md. 1991) (internal

quotation marks omitted); see also Kentucky Nat. Ins. Co. v.

Gardner, 6 S.W.3d 493, 498-99 (Tenn. Ct. App. 1999) (“A waiver

is   an   intentional       relinquishment       of   a     known    right.”).             PTJV

bears the burden of showing that ACE’s conduct is “so clearly

inconsistent” with any intention to enforce the provision at

issue     “that     the     conduct     constitutes          an     implied         waiver.”

Kentucky Nat., 6 S.W.3d at 499; see also Springfield Tobacco

Redryers    Corp.    v.     City   of   Springfield,         293    S.W.2d          189,   199

(Tenn.    Ct.     App.    1956)    (waiver     must    be    proven       by    a    “clear,

unequivocal and decisive act . . . showing such a purpose, or



                                          25
acts   amounting   to   an   estoppel”    (internal     quotation   marks

omitted)).

          PTJV submits that ACE did the following things, which

should constitute waiver or at least raise a genuine issue of

material fact:     (1) ACE “ignored” the atrium failure (i.e., did

not “take any action” after the Collapse); (2) ACE “failed to

acknowledge PTJV’s claim for 10 months”; (3) ACE “represented to

PTJV that it would pay the claim,” without reserving rights; and

(4) ACE “refused to pay, but not on the basis of late notice.”

Appellant’s Br. 55-59.

          However, none of these facts shows ACE’s “intentional

relinquishment” of its right to invoke the provisions of the no-

action and voluntary payment clauses, which as explained above,

are the relevant provisions to this appeal.             In fact, in the

September 8, 2010 letter from ACE offering to pay a certain part

of the claim, it stated it “is not waiving, nor will it be

estopped from asserting any other terms, conditions, exclusions

or provisions of this policy.”         J.A. 2802.     For these reasons,

PTJV’s waiver argument fails.

                                 IV.

          For these reasons, the judgment of the district court

is

                                                               AFFIRMED.



                                  26
