                                                               NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 11-2060
                                     ____________

               ATLANTIC HEALTH SYSTEM, INC; AHS HOSPITAL
                   CORP; ATLANTIC AMBULANCE CORP.,
                                                 Appellants

                                           v.

               NATIONAL UNION FIRE INSURANCE COMPANY
            OF PITTSBURGH; AMERICAN INTERNATIONAL GROUP
                             ___________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                             (D.C. Civil No. 2-08-cv-01661)
                     District Judge: Honorable Garret E. Brown, Jr.
                                      ___________

                       Submitted Under Third Circuit LAR 34.1
                                 February 10, 2012

                Before:   SLOVITER and VANASKIE, Circuit Judges,
                            and POLLAK, * District Judge

                               (Filed February 29, 2012)
                                     ___________

                              OPINION OF THE COURT
                                   ___________

VANASKIE, Circuit Judge.


      *
        Honorable Louis H. Pollak, Senior Judge of the United States District Court for
the Eastern District of Pennsylvania, sitting by designation.
          Atlantic Health System, Inc., AHS Hospital Corp., and Atlantic Ambulance Corp.

(collectively, “AHS”) brought an action against National Union Fire Insurance Company

of Pittsburgh, Pennsylvania, and American International Group (collectively, “National

Union”), 1 challenging the denial of coverage under an insurance policy. The District

Court granted National Union’s motion for summary judgment, and we will affirm.

                                               I.

          We write primarily for the parties, who are familiar with the facts and procedural

history of this case. Accordingly, we set forth only those facts necessary to our analysis.

          On April 5, 2004, Med Alert Ambulance, Inc. (“Med Alert”) filed an antitrust

complaint against AHS. See Med Alert Ambulance, Inc. v. Atl. Health Sys., Inc., No. 04-

1615, 2007 WL 2297335 (D.N.J. Aug. 6, 2007). AHS contends that it was entitled to

defense and indemnification in connection with the Med Alert action under its National

Union claims-made insurance policy that was in effect from May 1, 2003 to May 1,

2004. 2

          On July 23, 2004, AHS sent a “First Notice of Loss” letter to National Union,

requesting coverage under Policy No. 316-29-70, which was effective from May 1, 2004

to May 1, 2005 (the “2004-2005 Policy”). The request for coverage under the 2004-2005

Policy was denied because AHS had notice of the underlying Med Alert claim prior to

the inception of the 2004-2005 Policy coverage.

          1
              National Union is a member company of American International Group.
          2
        AHS ultimately settled the Med Alert action for $800,000, and allegedly incurred
more than $1.3 million in attorneys’ fees and costs in defending against the Med Alert
action.
                                               2
      On August 17, 2004, AHS sent a second letter to National Union marked “First

Report of a new loss” and requested coverage under Policy No. 382-77-89, which was in

effect from May 1, 2003 to May 1, 2004 (the “2003-2004 Policy”). That request was

denied because notice of the Med Alert claim had not been provided to National Union

during the policy period, or within the policy’s 30-day notice period. Because the Med

Alert action was filed on April 5, 2004, AHS was required under the terms of the 2003-

2004 Policy to provide written notice of the Med Alert claim to National Union no later

than May 5, 2004.

      Within the 2003-2004 policy period, however, AHS had submitted to National

Union two renewal applications, one handwritten and the other typed, that revealed

AHS’s involvement in the Med Alert suit. Specifically, AHS answered in the affirmative

the following questions on the renewal applications:

             21. Has the Applicant, any of its Subsidiaries, any of its
             Affiliates or any Director, Officer or Trustee:

             (a) Been involved in any antitrust, copyright or patent
             litigation?   X Yes            No

              (b) Been charged in any civil or criminal action or
             administrative proceeding with a violation of any federal or
             state antitrust or fair trade law?  X Yes            No

             ....

             (d) Been involved in any representative actions, class actions,
             or derivative suits? X Yes           No

(A. 412a.) AHS further clarified these answers by noting that “AHS and Atlantic

Ambulance have been named, together with Newton Memorial Hospital, in a civil action


                                            3
filed by Med Alert Ambulance Co. alleging unfair trade practices and anti-trust violations

with respect to the transport of cardiac patients from Newton to Morristown Memorial.”

(A. 337a.) The renewal applications were sent to Christine McSweeny, a National Union

underwriter who worked at 80 Pine Street, New York, NY.

       Article VII of the 2003-2004 Policy, which is titled “NOTICE/CLAIM

REPORTING PROVISIONS,” states that “[n]otice hereunder shall be given in writing to

the Insurer named in Item 8 of the Declarations at the address indicated in Item 8 of the

Declarations.” (A. 93a.) Item 8 specifies that the address of National Union is “175

Water Street[,] New York, NY.” (A. 83a.) Though the renewal applications were not

sent to the Water Street address, AHS argued that statements made in the renewal

applications gave National Union actual notice of the Med Alert claim, and National

Union therefore should not have denied coverage under the 2003-2004 Policy. 3

       AHS initiated this action in the Superior Court of New Jersey, Law Division, on

February 18, 2008. National Union removed the action to federal court on the basis of

diversity jurisdiction. AHS sought declaratory and monetary relief. National Union

argued as an affirmative defense that AHS’s requests for relief were barred by its failure

to provide timely notice of the Med Alert claim in accordance with the terms of the

policy. The parties presented their respective contentions to the District Court on cross

motions for summary judgment.



       3
        On appeal, AHS does not contend that it was entitled to coverage under the
2004-2005 Policy, nor does it dispute that the August 17, 2004 letter was untimely under
the terms of the 2003-2004 Policy.
                                             4
       Applying New Jersey law, the District Court found that the AHS renewal

applications did not satisfy the claim reporting requirements of Article VII of the 2003-

2004 Policy because “[t]he policy language at issue clearly requires written notice of a

claim to a specified address within a specified time period.” Atl. Health Sys., Inc., v.

Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., No. 2-08-cv-01661, 2011 WL 1375611, at

*5 (D.N.J. Apr. 20, 2011). Observing that strict adherence to the claims reporting

provisions in a claims-made policy is essential, and that it was indisputable that the

renewal applications were not sent to the address specified in the Policy, the District

Court granted summary judgment in favor of National Union.

                                             II.

       The District Court had diversity jurisdiction under 28 U.S.C. § 1332, and we have

appellate jurisdiction under 28 U.S.C. § 1291. Our review of a grant of summary

judgment is de novo, and we apply the same standard as the District Court. Pa. Coal

Ass’n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995). “This requires that we view the

underlying facts and all reasonable inferences therefrom in the light most favorable to the

party opposing the motion.” Id. Summary judgment shall be granted where no genuine

dispute exists as to any material fact, and the moving party is entitled to judgment as a

matter of law. FED. R. CIV. P. 56(a).

       We observe that the facts giving rise to this coverage contest are not in dispute.

What is in dispute are the legal consequences flowing from the undisputed facts.

Accordingly, we turn out attention to the questions of law arising from the historical facts

related above.

                                              5
                                             A.

       AHS first contends that it did comply with Article VII of the 2003-2004 Policy,

because the renewal applications were “written” and were “given” to National Union:

              There is nothing in the Policy that specifies any form or
              format for the insured to follow in giving notice of the claim
              to National Union, other than the notice must be in writing.
              The District Court essentially read additional terms into the
              Policy . . . . The Policy does not require notice to be ‘mailed.’
              To the contrary, the Policy requires notice to be ‘given.’ The
              undisputed facts before the District Court established that
              AHS gave National Union actual notice of the Med Alert
              claim in writing during the Policy Period.

(Appellant’s Br. at 18-19.)

       The argument advanced by AHS is based upon a selective reading of Article VII

that disregards the policy directive that notice be given to National Union at a specifically

prescribed address. Titled “NOTICE/CLAIM REPORTING PROVISIONS,” Article VII

explicitly provides that “[n]otice hereunder shall be given in writing to the Insurer named

in Item 8 of the Declarations at the address indicated in Item 8 of the Declarations.” (A.

93a.) (emphasis added). There is no dispute that Item 8 identified National Union as the

“Insurer” and its address as 175 Water Street, New York, NY 10038. Though the

renewal applications were in writing, they were not given to National Union at its Water

Street address.

       AHS contends that the failure to give notice at the Water Street address is

immaterial given that the Pine Street address to which the renewal applications were sent

is a mere “one-tenth of a mile away.” (Appellant’s Reply Br. at 14.) AHS concludes

that it is entitled to coverage under the 2003-2004 Policy because it is “undisputed . . .

                                              6
that National Union actually received the renewal applications within the time specified

by the Policy.” (Appellant’s Reply Br. at 14.)

       The parties agree that New Jersey law controls the interpretation of this claims-

made insurance policy. The leading case in New Jersey on this subject is Zuckerman v.

National Union Fire Insurance Co., 495 A.2d 395 (N.J. 1985), which held that the

reporting requirements of claims-made insurance policies must be applied strictly. The

Supreme Court of New Jersey explained that strict adherence to the claims reporting

requirements of a claims-made policy is based upon the fact that, unlike a typical

“occurrence” policy, in which coverage is triggered by an event within the policy period,

coverage under a claims-made policy is triggered by the transmittal of notice of the claim

within the policy period. The New Jersey high court elaborated:

              In the “occurrence” policy, the peril insured is the
              “occurrence” itself. Once the occurrence takes place,
              coverage attaches even though the claim may not be made for
              some time thereafter. While in the “claims made” policy, it is
              the making of the claim which is the event and peril being
              insured and, subject to policy language, regardless of when
              the occurrence took place.

Id. at 398(quoting Sol Kroll, The Professional Liability Policy “Claims Made,” 13

FORUM 842, 843 (1978)). Because of this difference, explained the Court, “the

requirement of notice in an occurrence policy is subsidiary to the event that invokes

coverage, and the conditions related to giving notice should be liberally and practically

construed.” Id. at 406. In the claims-made context, however, the opposite is true, and

extending the notice period against the insurer “would be inequitable and unjustified.”

Id.

                                             7
       In American Casualty Co. of Reading, Pennsylvania v. Continisio, 17 F.3d 62 (3d

Cir. 1994), we acknowledged that Zuckerman attributed great significance to the fact that

“[n]otice provisions serve different purposes in occurrence and claims-made policies.”

Id. at 68. Notice provisions in an occurrence policy are given a liberal and practical

construction because they do not define coverage, but merely assist the insurer to

investigate and resolve claims. By way of contrast, as recognized in Zuckerman, the

coverage trigger in a claims-made policy is the submission of the claim. Id. We noted in

Continisio that “[c]laims-made policies are less expensive because underwriters can

calculate risks more precisely since exposure ends at a fixed point. Extension of time

periods would significantly increase both the risk to insurers and the cost to insureds.”

Id. We concurred with the Fifth Circuit in concluding that “[b]ecause notice of a claim or

potential claim defines coverage under a claims-made policy, we think that the notice

provisions of such a policy should be strictly construed.” Id. at 69 (quoting FDIC v.

Barham, 995 F.2d 600, 604 n.9 (5th Cir. 1993)).

       AHS attempts to distinguish Continisio, asserting that Continisio was about

“constructive notice,” while the case at hand involves “actual notice.” As AHS explains,

“[i]n Continisio, the insured submitted a renewal application to its insurer in which it

denied knowledge of potential claims.” (Appellant’s Br. at 18.) The insurer, therefore,

had to draw an inference from the information provided in the rest of the application that

there was a possible claim.      AHS argues that the Third Circuit in Continisio was

“concerned about a situation ‘where the [insured’s] directors and officers would be better

served to disguise potential claims so that they would be covered by insurance well into

                                             8
the future while not drawing attention to conduct that might increase future premiums, or

terminate coverage altogether.’” (Appellant’s Br. at 26.) (quoting Continisio, 17 F.3d at

68).

       AHS contends that our concern in Continisio regarding misconduct is absent in the

case at hand: “unlike the insured in Continisio and the other cases cited by the Third

Circuit, AHS answered “YES” to the questions on both [renewal] applications asking for

disclosure of anti-trust litigation.” (Appellant’s Br. at 28.) AHS concludes that because

its renewal applications provided National Union with actual as opposed to constructive

notice, Continisio can be distinguished and AHS should be entitled to coverage under the

2003-2004 Policy.

       AHS misreads Continisio. While misconduct and the concealment of potential

claims was one concern expressed in Continisio, we were also motivated by more

practical concerns. As we explained in that case, in the claims-made context:

              [T]he only reasonable interpretation of the policy provision is
              that the insureds must regard the information they possess as
              a potential claim and formally notify their insurer through its
              claims liability department that a claim may be asserted. . . .
              [N]otice must be given through formal claims channels
              because we recognize that the information needed, or at least
              the perspective utilized in reviewing it, varies when
              predicting the probability of future losses and recognizing the
              need to investigate a claim that may be made based on past
              occurrences.

Continisio, 17 F.3d at 69 (citations omitted). Similarly, an insured such as AHS must

give notice of a purportedly covered claim at the address specified by the insurer to

facilitate the claims-handling process.


                                             9
          AHS’s renewal application to National Union’s underwriters was simply not a

formal claim. AHS artfully ignores the fact that in Continisio we had specifically

concluded that it was not reasonable for “an insured [to] insist[] that its insurer’s

underwriting department sift through a renewal application and decide what should be

forwarded to the claims department on the insured’s behalf,” which is precisely what

AHS argues National Union should have done. Id. AHS was properly denied coverage

because it failed to strictly comply with the reporting requirements of its claims-made

policy.

                                               B.

          AHS argues, however, “that National Union waived its right to argue that notice of

[the] Med Alert claim did not comply with the terms of the Policy,” because “[i]f notice

provided to an insurer is considered by the insurer to be defective, good faith requires the

insurer to notify the insured of its objections within a reasonable time.” (Appellant’s Br.

at 38.) (citing FDIC v. Interdonato, 988 F. Supp. 1, 10 (D.D.C. 1997); Fed. Sav. & Loan

Ins. Corp. v. Burdette, 718 F. Supp. 649, 653 (E.D. Tenn. 1989); JPMorgan Chase & Co.

v. Travelers Indem. Co., 897 N.Y.S.2d 405 (App. Div. 2010)). AHS offers no New

Jersey authorities in support of this principle. Furthermore, the cases cited by AHS are

distinguishable.

          In Burdette, the insured wrote to the insurer identifying probable claims with “the

purpose” of giving the insurer “notice of this potential.” 718 F. Supp. at 652. The

insurer, meanwhile, responded to these letters in a way that:



                                               10
               [I]ndicated that [the insurer] thought notice was proper, as
               claim files were opened and [the insurer] stated that it would
               await the commencement of formal litigation against the
               officers and directors before it would take any further action.
               This is action consistent with the appearance that [the insurer]
               believed notice was appropriate and that whenever a claim
               was filed, it would act as if the claim was filed within the
               policy period.

Id. at 654.

       In Interdonato, similarly, the insured notified the insurer “of the possibility of

claims against the directors,” and the insurer responded in such a way that “implied that

[the insured] did not need to provide any additional notice relating to director liability

until a claim had been filed against them.” 988 F. Supp. at 10. Likewise, in JPMorgan

the insured informed the insurer via e-mail that it “anticipated” being “named in

litigation,” and listed a number of specific allegations that could be brought against the

insured. 897 N.Y.S.2d at 408. The insurer “acknowledge[ed] receipt of the

correspondence,” and informed the insured “of the name of the individual assigned to the

matter.” Id. It was not until the coverage litigation was commenced that the insurer first

asserted that the notice was deficient. As the court observed in that case, “[i]t is beyond

cavil that the entire purpose of the notice, from both the perspective of the insured and

the insurers . . . was ‘to [provide] . . . notice of the [impending litigation].’” Id. at 410

(citation omitted).

       AHS, in contrast to the insureds in these cases, wrote of the Med Alert litigation in

its renewal applications to National Union’s underwriting department because it was

required to identify claims that would be excluded from coverage under a future policy.


                                               11
As the District Court observed, “nothing about the renewal application purports to inform

the insurer that the insured is seeking to file a claim for coverage under an existing

policy.” Atl. Health Sys., Inc., 2011 WL 1375611, at *6.

       “Waiver is the voluntary and intentional relinquishment of a known right.” Knorr

v. Smeal, 836 A.2d 794, 798 (N.J. 2003) (citations omitted). National Union, unlike the

insurers in the cases cited by AHS, did nothing to voluntarily and intentionally relinquish

its right to notice given in accordance with the Policy terms. The District Court again

properly noted that National Union never “represented – either affirmatively or tacitly –

that disclosure of claims on a renewal application would satisfy the notice-of-claim

requirement.” Atl. Health Sys., Inc., 2011 WL 1375611, at *6. Accordingly, we hold that

National Union did not waive the defect in the purported “actual notice” of the Med Alert

claim provided in the renewal applications.

                                                   C.

       AHS last argues that “[t]he District Court erred in considering extrinsic evidence,”

because it had “found the policy language to be unambiguous.” (Appellant’s Br. at 37.)

Specifically, AHS disputes the District Court’s examination of “AHS’s prior and

subsequent history of submitting claims to the Water Street address,” which revealed that

AHS had a “history of compliance” with National Union’s notice-of-claim provisions.

Atl. Health Sys., Inc., 2011 WL 1375611, at *6.

       As an initial matter, we note that even if we were to accept AHS’s argument here,

the result would be the same. If extrinsic evidence should not have been considered,



                                              12
AHS would be in precisely the same position – unable to recover because it failed to meet

the unambiguous notice requirements of the 2003-2004 Policy.

       Nevertheless, we observe that “a policy of insurance is simply a contract and its

provisions should, of course, be construed as in any other contract.” Pennbarr Corp. v.

Ins. Co. of N. Am., 976 F.2d 145, 151 (3d Cir. 1992) (quoting Caruso v. John Hancock

Mut. Life Ins. Co., 57 A.2d 359, 360 (N.J. 1948)). The Supreme Court of New Jersey has

held that it considers course of performance as relevant in the interpretation of contracts.

See State Troopers Fraternal Ass’n of N.J., Inc. v. State, 692 A.2d 519, 524 (N.J. 1997).

Clearly, the District Court did not err in considering AHS’s previous and subsequent

compliance with National Union’s notice-of-claim provisions.

                                             III.

       For the foregoing reasons, we will affirm the District Court’s judgment. 4




       4
       In light of our conclusion on the defective notice issue, there is no need to
examine whether American International Group is separately liable to AHS.
                                             13
