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In its brief, the Trustee states, "DVI's board sought to improve coverage to the prior policy and thought they had done so; officers had asked for increased limits." Brief of Appellant at 31. Arnold, this time attaching the Revised Binder, which stated that the "Aggregate Limit of Liability" was million, and invoicing DVI for the premium, which it ultimately paid. Nor is there any evidence that could demonstrate that DVI's intent was to purchase a No-Aggregate Limit of Liability policy from Zurich. This binder had other mistakes as well in that it stated that it was a Financial Institutions Excess Policy rather than a D & O Policy, and the word "retention" was misspelled. Again, the Trustee is raising an argument that is unrelated to whether the true agreement between DVI and Zurich was for a No-Aggregate Limit of Liability policy. The Trustee claims at various points that Commerce breached its duties as an agent for DVI, and therefore, none of Commerce's "conduct should be imputed to DVI." Brief for Appellant at 27.Zurich filed the instant suit to determine whether its obligations under the policy were limited in the aggregate to million. The Trustee then filed this appeal presenting two questions for our review: 1. 1035.2, summary judgment is appropriate where "an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action ... From approximately 1996 to 2003, DVI had a D & O Policy through its prior insurance broker, Hilb, Rogal and Hamilton (HRH). On March 10, 2003, after further discussions between Commerce and DVI, Mr. Arnold confirming that Commerce "was authorized by DVI to approach our selected markets with a firm order at a premium of 5,000 for million in D & O coverage, effective 4/25/03." R. The email also confirmed that the new insurance "must offer full continuity of coverage" with the National Union Policy. ¶ 8 Commerce then approached Zurich about providing a D & O Policy for DVI to replace its National Union Policy. Enclosed with this letter was a copy of the National Union Policy that stated that the policy had a million aggregate limit of liability.

¶ 10 On April 24, 2003, one day before the National Union Policy was set to expire, Mr. Arnold at DVI informing him that effective April 25, 2003, Commerce had bound a D & O Policy for DVI with Zurich. ¶ 19 The Trustee also points to the fact there were never any discussions between DVI and Commerce regarding aggregate limits.

Cozen O’Connor 1310 King Street Chase Manhattan Centre P. Box 1328 1201 North Market Street, Suite 1400 Wilmington, DE 19899 Wilmington, DE 19801 Counsel for Richard E. Krepto, Esquire Adam Balick, Esquire Montgomery, Mc Cracken, Walker & Joanne Ceballos, Esquire Rhoads LLP Bifferato Gentilotti Biden & Balick, LLC 300 Delaware Avenue, Suite 750 711 King Street . Scheff, Esquire Maura Fay, Esquire i Jeffrey Feldman, Esquire Dilworth Paxon LLP Montgomery, Mc Cracken, Walker & 1735 Market Street Rhoads, LLP Philadelphia, PA 19103 1 123 South Broad Street, 28th Floor Counsel for Steven R. Quinn., Jr., Esquire Paul Greco, Esquire Karen Pieslak Pohlmann, Esquire Vincent T.

Laigaie, Esquire Cozen O’Connor Miller, Alfano & Raspanti, P. 1900 Market Street 1818 Market Street, Suite 3402 Philadelphia, PA 19103 , Philadelphia, PA 19103 Counsel for Anthony J T urek Counsel for Harry TJ Roberts Philip Trainer, Jr. Maguire, Esquire Ashby & Geddes 222 Delaware Avenue, 17th Floor P.

and the DVI Liquidating Trust ‘ Dennis J Buckley, Trustee ofthe DVI Liquidating Trust David E. Connolly, Jr., Esquire Martin James Weis, Esquire Connolly, Bove, Lodge & Hutz Dilworth Paxson LLP The Nemours Building First Federal Plaza 1007 North Orange Street Suite 500 P. Box 2207 Wilmington, DE 19801 Wilmington, DE 19899 Counsel for Steven R.

Box 2031 1251 Avenue of the Americas Wilmington, DE 19899 New York, NY 10020 Attorneys for Ojicial Committee 0f Attorneys for Dennis J Buckley, Trustee 0f Unsecured Creditors of DVL Inc., et al. Wilmington, DE 19801 Wilmington, DE 19801 Counsel for Michael O ’Hanlon Counsel for Harry TJ Roberts Arthur G. Garjinkel i Philadelphia, PA 19109 A Counsel for Michael O ’Hanlon 4154852 Case -cv-00955—G|\/IS Document 93-2 Filed 05/07/2007 Page 2 of 2 David W. Cieslik, Esquire Thomas Ayala, Esquire Conrad, O’Brien, Gelman & Rohn, P. Morgan Lewis & Bockius, LLP 1515 Market Street, 16th Floor 1701 Market Street Philadelphia, PA 19102-1916 Philadelphia, PA 19103-2921 Counsel for Richard E.

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