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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND PARTS INCORPORATED, et al. Plaintiffs * * * * * * * * * *

Civil Action No. RWT 07-2882

UTICA MUTUAL INSURANCE CO., Defendant

MEMORANDUM OPINION I. BACKGROUND The Plaintiffs Dwight Puckett and B&J Auto Supply ("B&J") filed an insurance coverage action to recover the fees and costs that they incurred in defending a lawsuit. The lawsuit in question had been filed against them on July 2, 2005 by Amy Blankenship, who was a seventeenyear-old high school junior at the time she worked as a stock person at B&J. She filed suit against Puckett and B&J in the Circuit Court for Prince George's County in a case entitled Blankenship v. B&J Auto Supply, Inc., et al., Case No. CAL-05-1101. Her suit against B&J and Puckett alleged that she had been sexually harassed by Puckett, who was her supervisor and manager, from June to October of 2003. The harassment was alleged to have culminated on October 1, 2003, when Puckett followed Blankenship into a basement area of B&J, grabbed her hand, said that he wanted her to give him a "hand job," but that when she got scared, and froze up, he grabbed her hand and helped her the whole time. Prior to the incident in question, the Defendant Utica Mutual Insurance Company ("Utica") had issued Business Owners Insurance Policy Number BOP3175192 ("Policy")to B&J for the period May 1, 2003 to May 1, 2004. The Policy provided third-party liability coverage subject to certain conditions and exclusions.

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On July 28th 2005, the Plaintiffs notified Utica of the suit filed by Ms. Blankenship. Utica conducted an investigation and denied that it had a duty to defend the suit, citing certain exclusions under the Policy. Correspondence between the parties dealing with the coverage issue ensued. On September 14th 2006, in the underlying action brought by Ms. Blankenship, the Circuit Court for Prince George's County granted summary judgment to B&J on all counts, with the exception of one remaining count for negligent retention and supervision. Thereafter, Ms. Blankenship dismissed her suit. No settlement was reached with her, nor was any payment made to her. On July 30, 2007, B&J and Puckett filed a declaratory judgment action against Utica in the Prince George's County Circuit Court, and Utica removed the case to this court on the basis of this Court's diversity jurisdiction. II. DISCUSSION There are three motions pending before the Court. The main motion is the Defendant's Motion for Summary Judgment [Paper No. 23]. There is also a related Plaintiffs' Motion to Strike Defendant's Response [Paper No. 40] and the Plaintiffs' Motion to Supplement the Record [Paper No. 47]. First, with regard to the Plaintiffs' Motion to Strike the Defendant's Response [Paper No. 40], the Court will deny that motion. In this case, the Response was not filed by the deadline of May 2, 2008, in accordance with the briefing schedule. There was, however, some understandable confusion because the docket entry generated an automatic response time that was longer than the time provided for in the order, namely May 9, 2008. The Court will not strike the response under those circumstances. At worst, this constitutes excusable neglect, and the Court finds no prejudice and will therefore deny that motion. The Plaintiffs have also filed a Motion to Supplement the Record [Paper No. 47]to provide

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the deposition testimony of Scott Rose along with certain records. In order to have all the information relevant to this case, the Court will grant that motion. A. Standard of Review The principal motion is Defendant's Motion for Summary Judgment [Paper No. 23]. Summary judgment is proper if there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 302 (4th Cir. 2006). A dispute of material fact is genuine if sufficient evidence favoring the nonmoving party exists for the trier of fact to return a verdict for that party. Anderson, 477 U.S. at 248-49. The nonmoving party, however, cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another. Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1986). The Court may rely upon only those facts that are supported by the record

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Maryland Law