[brief] (“[...]”) and [...] (“[...]”) (the “Utilities” and the “Utilities Litigation”), and stay the instant litigation (the “DJ Action”) pending conclusion of the arbitration.  [...]’s Indemnity Claim is subject to arbitration pursuant to the arbitration clauses in the only policies remaining at issue in the DJ Action – the Pollution Liability Policy numbered [...] (the “[...]”), and the Umbrella Liability Policy numbered [...] (the “[...]”).  The trial court held that the arbitration provision in the [...] does not allow for [...] to demand arbitration without the consent of [...].  T1 76:15-18.  The trial court also held that the arbitration clause in the [...] “does not apply here. ”  T1 76:15-18; 76:24-25.  The trial court further ruled that [...] had waived its right to arbitrate [...]’s Indemnity Claim under the factors set forth in *Cole v. Jersey City Medical Center*, 215 N.J. 265 (2013).  Da250, T1 68:13-16.  Under the Federal Arbitration Act ("FAA") – which applies to this dispute – as well as New Jersey law, the arbitration clauses at issue provide *either* party with the broad right to invoke arbitration.  Once [...] demanded to arbitrate [...]’s Indemnity Claim, [...] was required to arbitrate as its consent was provided when it accepted the insurance policies.  Furthermore, the [...] is at issue in the DJ Action and its arbitration clause squarely applies.  [...] has not established by clear and convincing evidence, as it must, that [...] intentionally relinquished its right to arbitrate [...]’s Indemnity Claim.  The lower court relied heavily on the passage of time from the filing of the DJ Action to the Motion to Compel Arbitration.  But, time alone is not a fair barometer as this case was stayed for many years at [...]’s insistence.  The key issue is when could [...] actually demand to arbitrate and achieve a binding result.  This case is analogous to *Chassen v. Fidelity National Financial, Inc.*, 836 F.3d 291 (3d Cir. 2016) where a multi-year delay in demanding arbitration was not deemed a waiver because compelling arbitration at the outset would have been futile.  Likewise, in this case, any arbitration demand by [...] prior to 2024 would have been futile and accomplished nothing.  The only reason why the DJ Action includes [...]’s Indemnity Claim was to avoid running afoul of New Jersey’s entire controversy doctrine which requires parties to present all claims and defenses related to the underlying controversy in a single proceeding.  Until [...]’s settlement with the Utilities in late 2023, [...] could not, and did not, pursue its Indemnity Claim against [...] because it was not ripe.  Arbitration also would have been futile prior to 2024 because any arbitration between [...] and [...] would have been non-binding on the other insurers who possessed non-arbitrable contribution claims against [...] and therefore had the right to relitigate the very issues subject to arbitration.  Thus, even if [...]’s Indemnity Claim were ripe prior to 2024, which it was not, it would have suffered from the same infirmity as the defense cost dispute until [...] settled with the other insurers who had a direct right of contribution.  Thus, it was only after the other insurers settled, the Utilities Litigation was resolved, and the stay was lifted in June of 2024 that [...]’s Indemnity Claim was ripe and amenable to binding resolution via arbitration.  [...] promptly moved to compel arbitration at that time.  Under these unique facts, the Cole factors demonstrate that [...] did not waive the right to arbitrate.