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Plaintiff-appellant Ellen M. Peck appeals from a summary judgment entered in the United States District Court for the District of Connecticut (Goettel, J.) dismissing her action to recover damages from defendant-appellee Public Service Mutual Insurance Company ("Public Service") under Connecticut's direct action statute, Conn. Gen.Stat. § 38a-321 (2000). This action arises out of an underlying tort action brought by Peck in Connecticut Superior Court against, inter alia, South Norwalk Redevelopment Limited Partnership ("South Norwalk"). South Norwalk never notified its insurer, Public Service, of Peck's tort action. A default judgment was subsequently entered against South Norwalk as a result of its failure to respond to Peck's outstanding discovery requests, and a jury later awarded Peck $250,000 in damages. As part of a settlement with Peck, South Norwalk assigned to her whatever claims it had against Public Service.

332*332 After Peck filed the instant diversity action against Public Service, the latter moved for summary judgment on several grounds, one of which was that Public Service had been materially prejudiced by South Norwalk's failure to provide it with timely notice of Peck's underlying tort action. It was solely upon this ground that the District Court entered summary judgment for Public Service and dismissed Peck's complaint. For the reasons set forth below, we conclude that the District Court erred in holding as a matter of law that Peck failed to carry her burden of showing that Public Service was not materially prejudiced by any untimely notice Public Service received of Peck's underlying tort action. Accordingly, we vacate the summary judgment and remand the case to the District Court for proceedings consistent with this opinion.


326 F.3d 330 (2003)

Ellen M. PECK, Plaintiff-Appellant,


PUBLIC SERVICE MUTUAL INSURANCE COMPANY, Defendant-Appellee, Greater New York Mutual Insurance Company, Defendant.

No. 01-9459.

United States Court of Appeals, Second Circuit.

Argued: October 1, 2002.

Decided: April 17, 2003.

New York Law School location: File #3094, Box #145