dissenting.
I respectfully dissent.
The trial court assessed the evidence that was admitted at the trial of the underlying tort action and the evidence that *336was precluded from admission at that trial and made a factual finding on the issue of “actual prejudice” to State Farm, under IA § 19-110. Specifically, the trial court found that there was a substantial likelihood that had Kirby not breached the cooperation clause, the verdict would have been different as to Winston only, i.e., that both Winston and Kirby would have been found liable. Thus, Kirby’s failure to cooperate resulted in actual prejudice to State Farm in that it deprived State Farm of the benefit of Kirby’s right of contribution against Winston. The trial court ruled that State Farm could disclaim coverage to the extent of one-half of the judgment amount, thus restoring it to the position it would have occupied had it not been prejudiced.
The majority suggests that the trial court applied a legally incorrect standard for “actual prejudice.” I disagree. Relying upon Harleysville Insurance Company v. Rosenbaum, 30 Md.App. 74, 351 A.2d 197 (1976), the trial court explained that in deciding whether State Farm had suffered actual prejudice, it considered whether Kirby’s failure to cooperate had made it substantially likely that the verdict rendered at the liability trial would have been different than it would have been had she cooperated. In Rosenbaum, the trial court found that the insurer had suffered actual prejudice as a result of the insured’s failure to give notice and to cooperate. This Court observed that before the 1964 enactment of Md.Code, article 48A, § 482, the predecessor statute to IA § 19-110, insurance companies could disclaim coverage for lack of notice without proof of actual prejudice, but could disclaim coverage for lack of cooperation only upon proof of actual prejudice. 30 Md.App. at 84, n. 12, 351 A.2d 197. The Court then looked to the case law pre-dating the predecessor statute and addressing disclaimers for lack of cooperation to glean the meaning of “actual prejudice” in the statute. Id. (citing United States Fid. & Guar. Co. v. Williams, 148 Md. 289, 307, 129 A. 660 (1925)). To be sure, the Court’s discussion of “actual prejudice” was dicta, because it ultimately held that the issue of actual prejudice had not been ripe for decision. Nevertheless, *337there was a firm basis to the meaning the Court ascribed to that phrase.
Our later opinion in Washington did not disapprove of the standard for actual prejudice explained in Rosenbaum. Rather, the Court concluded that the cases were factually inappo-site. In Rosenbaum, the insurer received notice of the accident from a third party -within weeks of its occurrence. Even though the insured did not respond to inquiries about the accident and eventually died, the insurer was not foreclosed from conducting an investigation and discovering the facts surrounding the accident. By contrast, in Washington, the insurer first received notice of the claim the day after the verdict against its insured was rendered. In the ensuing declaratory judgment coverage action, the insurer put on evidence showing that, as a consequence of the insured’s failure to give notice, it had been prevented from investigating the facts underlying the claim, and therefore was unable to show what facts it could have or would have discovered but for the insured’s breach. This Court affirmed the trial court’s factual finding of actual prejudice to the insurer, holding that when the insurer “has been deprived of all opportunity to defend,” and must prove a negative to show actual prejudice, the entry of the adverse judgment is itself “affirmative evidence” of actual prejudice. 60 Md.App. at 296, 482 A.2d 503. The Court did not change the standard for actual prejudice; rather, it clarified the circumstances under which the mere entry of an adverse judgment will suffice to satisfy that standard.
In St. Paul Fire Marine Ins. v. House, 315 Md. 328, 332, 554 A.2d 404 (1989), the Court of Appeals noted that article 48A, § 482 “measures by the standard of actual prejudice the materiality of the breach of [the] covenants [to give notice and to cooperate] by the insured for the purpose of determining if the breach excuses performance by the insurer.” (Emphasis supplied). See also Sherwood v. Hartford, 347 Md. 32, 42, 698 A.2d 1078 (1997)(quoting that language from House); T.H.E. Ins. v. P.T.P., Inc., 331 Md. 406, 414, 628 A.2d 223 (1993)(same). The use of the word “materiality” in that *338context suggests to me that the standard for “actual prejudice” described in Rosenbaum remains viable.
The majority does not specify the standard that the trial court should have applied in determining actual prejudice, reasoning that under any standard, the court erred in finding no prejudice with respect to the verdict against Kirby. The majority holds that under the circumstances in this case, the trial court erred in considering the evidence that was admitted and that was precluded at the trial of the underlying tort action and in determining from its evaluation of that evidence what a reasonable jury would have done had Kirby/State Farm been permitted to put on á defense. The majority concludes that, as in Washington, the insurer should not have been made to prove a negative, and the trial court should have found from the mere entry of judgment against Kirby that State Farm suffered actual prejudice. I disagree.
The cases addressing disclaimers of coverage under IA § 19-110 make plain that whether the insured’s breach of the covenant to give notice or the covenant to cooperate resulted in actual prejudice to the insurer is a question of fact to be decided by the trial court in the declaratory judgment action and to be reviewed under the clearly erroneous standard. See Washington, 60 Md.App. at 297, 482 A.2d 503 (“We do not find the trial court’s conclusion that there was actual prejudice to the [insurer] by reason of the [insured’s] failure to notify and cooperate was clearly erroneous”); Nationwide Insurance Co. v. United States Fidelity & Guaranty, 304 A.2d 283, 285 (D.C.1973) (holding that on the facts in evidence the trial court did not err in finding that the insurer had been prejudiced). For the trial court to determine as a matter of fact whether more likely than not the insured’s lack of cooperation in the underlying tort action materially affected the verdict, it must ascertain what the state of the evidence would have been in the underlying case had the insured cooperated, and what a reasonable jury would have done in response to that evidence. There simply is no other way for the trial court to decide the issue. In the case sub judice, unlike in Washington, that evidence was available to the trial court to evaluate.
*339Kirby notified State Farm about the accident and initially cooperated in the investigation. State Farm obtained a statement from her about her version of the accident and conducted an investigation that disclosed the existence of an independent witness, Linda Weiner. State Farm obtained a statement from Weiner, in which she gave her version of the accident. It also obtained other information, such as a police report and weather statistics. Thus, Kirby’s eventual lack of cooperation in the underlying tort action did not put State Farm in the position of having to prove the existence of unknown facts in the declaratory judgment action. Not only were the fruits of State Farm’s factual investigation known, State Farm was able to present Weiner’s live witness testimony at the declaratory judgment trial. In short, unlike in Washington, and unlike in most cases in which the insured’s breach begins with lack of notice, in this case the facts that would have been adduced at the underlying tort action trial but for Kirby’s lack of cooperation were known.
The trial court carefully considered the “precluded” evidence and the admitted evidence, performed a demeanor-based credibility assessment of Linda Weiner, and found that State Farm had suffered actual prejudice by virtue of the loss of its insured’s right of contribution against a joint tortfeasor. It issued a lengthy and thorough memorandum opinion explaining its findings, including the basis for its conclusion that the jury still would have found Kirby liable had it heard evidence from the defense. The trial court pointed out, for example, that Kirby’s version of events was inconsistent not only with Gregorie’s and Winston’s versions but also with Weiner’s version, with the photographs that showed the damage to the vehicles, and with the weather statistics. In my view, we cannot say that the trial court clearly erred in its fact finding.
Finally, the majority holds that the trial court erred in allowing State Farm to disclaim coverage to Kirby partially, to the extent of the dollar value by which it was prejudiced. Specifically, the majority reasons that the trial court erred in reading Fid. & Cas. Co. v. McConnaughy, 228 Md. 1, 179 A.2d *340117 (1962), as authority for such a ruling. I disagree with this conclusion also.
In McConnaughy, which was decided prior to the enactment of article 48A, § 482, the trial court in a declaratory judgment coverage action ruled on summary judgment, without explanation, that the insurer had not been prejudiced by the insured’s failure to cooperate, which had taken the form of procuring witnesses to testify falsely in his favor. The underlying tort action had resulted in a $10,000 judgment against the insured. The Court of Appeals reversed. In so doing, it observed that even though it accepted the insurer’s position that the insured’s actions had caused it prejudice, the insurer was prejudiced only to the extent of $6,500 of the judgment because its own evidence showed that but for its insured’s lack of cooperation, it would have paid $3,500 to settle the case.
I agree with the trial court in the instant case that McCon-naughy stands for the proposition that in a declaratory judgment coverage action in which the insurer seeks to disclaim coverage on the basis of the insured’s breach of the covenant to cooperate, the court may allow a partial disclaimer commensurate with the prejudice actually suffered by the insurer, «assuming that that is quantifiable.1 I do not read the lan*341guage of the subsequent enactments (article 48A, § 482 and IA § 19-110) as precluding trial courts from finding partial disclaimers of coverage, nor do I consider the factual distinctions between McConnaughy and the case sub judice to be meaningful. Because there was no clear error in the trial court’s factual finding that the only prejudice suffered by State Farm was its loss of the benefit of Kirby’s right of contribution against Winston, we should not disturb the trial court’s decision to allow State Farm to disclaim coverage to Kirby in an amount commensurate with that prejudice: one-half of the judgment.
. In a footnote in Sherwood v. Hartford, supra, 347 Md. 32, 698 A.2d 1078, the Court of Appeals indicated approval of the allowance of a partial disclaimer of coverage. Sherwood concerned an insurer’s obligation to pay pre-notice costs of defense incurred by the insured. After observing that in that context, the issue of actual prejudice includes an assessment of whether the insured’s pre-notice expenses were reasonable, and whether they "materially exceed[ed] that which the insurer would likely have incurred in any event,” id. at 48-49, 698 A.2d 1078, the Court commented:
The fact that an expense incurred by the insured was, itself, reasonable in amount does not necessarily resolve the question of prejudice. The insurer may, for example, have an arrangement with competent defense counsel or a competent investigator or other support person to provide service at a negotiated rate. If the insured, in derogation of its contractual duty not to do so, employs counsel or other litigation support persons at rates that, though not facially unreasonable, are nonetheless substantially in excess of those that would have otherwise been paid by the insurer had it been notified and undertak*341en the defense earlier, the insurer may have some basis for claiming prejudice at least to the extent of the difference.
347 Md. at 49, n. 7, 698 A.2d 1078(emphasis supplied).