1 17-965-cv Zahoruiko v. Fed. Ins. Co. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROC EDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMEN T FILED WITH THIS CO URT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA BASE (WITH THE NOTATION

A SUMMARY ORDER @ ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Seco nd Circuit, held at the Thurgood Marshall United Stat es Courthouse, 40 Foley Sq uare, in the City of New York, on the 5 th day of January, two thousand eighteen. PRESENT: REENA RAGGI, DEBRA ANN LIVINGSTON, RAYMOND J. LOHIER, JR., Circuit Judges.

___________________ __________________ J. GRAHAM ZAHORUIKO, Plaintiff-Appellant , v. No. 17-965-cv FEDERAL INSURANCE COMPANY, Defendant-Appellee , CHUBB NATIONAL INSURANCE COMPANY, DBA FEDERAL INSURANCE COMPANY, CHUBB GROUP OF INSURANCE COMPANIES, collectively and individually, Defendants.

___________________ __________________2 FOR APPELLANT: J. Graham Zahoruiko, pro se , Tolland, Connecticut.

FOR APPELLEE: Jeffrey L. Williams, Carlton Fields Jorden Burt, P.A., Hartford, Connecticut. Meredith W. Caiafa, Carlton Fields Jorden Burt, P.A., Atlanta, Georgia. Appeal from a judgment of the United States District Court for the District of Connecticut (Vanessa L. Bryant, Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the judgment entere d on March 6, 2017, is AFFIRMED. Plaintiff J. Graham Zahoruiko, proceeding pro se , appeals from an award of summary judgment to Federal Insurance Comp any (“Federal”) on Zahoruiko’s breach of

contract and related claims based on Federal’ s denial of coverage under a director and officer liability insurance policy. Specifically, Zahoruiko cha llenges the district court’s

determination that he was not entitled to coverage under Co nnecticut law because he did not timely notify Federal of the claims for which he sought insurance coverage. We review the challenged award de novo and will affirm only if the record, viewed in the light most favorable to Zahoruiko, shows no genuine dispute of material fact and Federal’s entitlement to judgment as a matter of law. See Jackson v. Fed. Express , 766 F.3d 189, 193–94 (2d Cir. 2014). In doing so, we assume the parties’ fa miliarity with the underlying facts, the procedural history of the case, a nd the issues on appeal, which we reference only as necessary to explai n our decision to affirm substantia lly for the reasons stated by the3 district court. See Zahoruiko v. Fed. Ins. Co ., No. 3:15-cv-474 (V LB), 2017 WL 776645 (D. Conn. Feb. 28, 2017). Under Connecticut law, an insurer can be discharged from its coverage obligations pursuant to the “notice” provision of an in surance policy only by showing: “(1) an unexcused, unreasonable delay in notification by the insured; and (2) resulting material prejudice to the insurer.” Arrowood Indem. Co. v. King , 605 F.3d 62, 77 (2d Cir. 2010). Insofar as Zahoruiko argues on appeal that Fe deral failed to show prejudice, he forfeited the argument by failing to raise it in the district court. See Harrison v. Republic of Sudan , 838 F.3d 86, 96 (2d Cir. 2016) (“It is a well-esta blished general rule that an appellate court

will not consider an issue raised for the first time on appeal.” (internal quotation marks and alteration omitted)). In any even t, upon an independent review of the record and relevant case law, we conclude, as the district cour t did, that Federal is entitled to summary judgment. An insured’s “duty to give notice does not arise unless and until facts develop which would suggest to a person of or dinary and reasonable prudence that liability may have been incurred, and is complied with if notice is given within a r easonable time after the situation so assumes an aspect suggestive of a possible claim for damages.” Arrowood Indem. Co. v. King , 605 F.3d at 77 (inter nal quotation marks omitted ). “The purpose of the requirement for prompt notice is to give the insurer a full opportunity to investigate the

claim.” Id. at 78. As to the prejudice prong, “the insurer bears the burden of proving, by4 a preponderance of evidence, that it has been prejudiced by the insure d’s failure to comply with a notice provision.” Arrowood Indem. Co. v. King , 39 A.3d 712, 725–26 (Conn. 2012). Zahoruiko’s delay in notifying Federal of his need for coverage was both unexcused

and unreasonable. When the action at issue was commenced against Zahoruiko in 2010, a reasonably prudent person would have unders tood that liability might be incurred. Moreover, when default was en tered against Zahoruiko, he certainly should have known that he could be found liable. Nevertheless, Zahoruiko failed to notify Federal until one and a half years after the lawsuit was commenced and 15 months after the default. Insofar as Zahoruiko argues that his untimely notice shou ld be excused because the entity that sued him engaged in unscrupulous tac tics, he fails to explain ho w that conduct prevented him from timely providing notice of the action to Federal. Zahoruiko’s arguments that the district c ourt improperly assumed prejudice and that Federal failed to carry its preponderance burden are equally meritless. Federal provided a declaration from a senior claim officer stating that Zahoruiko’s failure to give notice until after default was entered denied it the opportuni ty to interview witne sses or participate in the defense or any proposed settlement of the cl aim. Zahoruiko argues that the declaration is speculative, and that Fede ral would not have defended his claim because it denied coverage based on a different clause of the policy. The argument does not persuade. Connecticut recognizes that the denial of the o pportunity to investigate, as well as entry of5 default, are prejudic ial to an insurer. Ellis v. Cty. Agency, Inc ., No. CV1460 17155S, 2017 WL 3011674, at *3 (Conn. Super. Ct. May 25, 2017) (“Entry of a default judgment against an insured is evidence of prej udice as well as the lack of opportunity for the insurer to investigate a claim and to purs ue a compromise or settlement.” (internal citation omitted)); Jazlowiecki v. Nationwide Ins. Co. of Am ., No. HHDCV126036618S , 2014 WL 4746527, at *6 (Conn. Super. Ct. Aug. 8, 2014) (same). Zahoruiko’s prejudice challenge is further belied by his own waiver in th e underlying action of defenses that Federal could otherwise have asserted. Federal having carried its bur den, and Zahoruiko having failed to adduce evidence sufficient to support a jury verdict in his favor, see Burt Rigid Box, Inc. v. Travelers Prop. Cas. Corp. , 302 F.3d 83, 91 (2d Cir. 2002), or even to challenge Federal’s showing of prejudice in the district court, summary judgment was correctly entered in

Federal’s favor.

We have considered Zahoruiko’s remaini ng arguments and conclude that they are without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court