Regis Insurance Co v. AM Best Co Inc

Filing

NOT PRECEDENTIAL OPINION Coram: SMITH, JORDAN and VAN ANTWERPEN, Circuit Judges. Total Pages: 6. Judge: SMITH Authoring.

Case: 14-3040

Document: 003111925952

Page: 1

Date Filed: 04/08/2015

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-3040
_____________
REGIS INSURANCE COMPANY,
Appellant
v.
A.M. BEST COMPANY, INC.
_____________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 2-10-cv-03171
District Judge: The Honorable Petrese B. Tucker
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
March 16, 2015
Before: SMITH, JORDAN, and VAN ANTWERPEN, Circuit Judges
(Filed: April 8, 2015)
_____________________
OPINION
_____________________
SMITH, Circuit Judge.



This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.

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Date Filed: 04/08/2015

A.M. Best (“Best”) is a rating agency that specializes in rating the financial
health of insurance companies. On January 12, 2010, Best issued a press release
regarding Regis Insurance (“Regis”), which is the basis of Regis’ defamation and
commercial disparagement claims against Best. The press release began:
A.M. Best Co. has downgraded the financial strength rating to B(Fair) from B+ (Good) and issuer credit rating to “bb-”from “bbb-”
of Regis Insurance Company (Regis) (Wayne, PA). The outlook for
both ratings has been revised to negative from stable.
These rating actions reflect the recent disclosure of the lack of
financial flexibility at Regis’ privately held parent, Tiber Holding
Corporation (Wilmington, DE), due to that organization’s high
consolidated financial leverage, lack of access to additional capital
and other operating issues.1
In November 2009, as part of its annual rating process, Best met with Regis
to discuss Regis’ financial health. At that meeting, Best requested the financial
statements of Regis’ parent, Tiber Holding (“Tiber”), which Regis promptly
provided. Best’s published rating methodology considers the financial condition of
parent corporations to be potentially relevant. Although Best claims it had
previously requested Tiber’s financial statements, it is undisputed that it had not
received them. In reviewing Tiber’s financial statements, Best learned that Tiber’s
liabilities exceeded its assets by a factor of 3.5, and that it had a negative net worth

1

Regis also argued that other statements made later in the press release,
which did not specifically relate to Tiber, were defamatory. As these statements
were not meaningfully discussed in the District Court’s opinion from which Regis
appeals, or in Regis’ brief, they do not provide a potential basis for reversal.
2

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of nearly $45 million. The primary reason was that Tiber owed the Superintendent
of Insurance of New York, in its capacity as Liquidator of Nassau Insurance
(“Nassau”),2 nearly $43 million. The $43 million was split between two
judgments, with final judgment dates (according to the financial statements) of
August 2000 and May 2002; both of which had been accumulating interest.3
After multiple levels of internal review at Best, including an appeal by
Regis, and conversations between Best and the Pennsylvania Department of
Insurance (initiated at Regis’ request), a senior rating committee at Best decided to
downgrade Regis over “concern[] about [the] uncertainty” surrounding Tiber’s
financial situation. In fact, given that Tiber was insolvent, guidelines in Best’s

2

“Through a subsidiary, Tiber owned Nassau . . . until Nassau was ordered
into receivership.” Levin v. Tiber Holding Corp., No. 98-8643, 2000 WL
33911225, at *1 (S.D.N.Y. Aug. 14, 2000), vacated, 277 F.3d 243 (2d Cir. 2002).
3
The fallout of the collapse of Nassau has been before this Court twice, with
both Richard and Jeanne DiLoreto filing unsuccessful appeals. The DiLoreto
couple have owned and controlled Regis, Tiber, Nassau, and a dizzying array of
related, largely sham entities. See, e.g., Levin v. Tiber Holding Corp., 277 F.3d
243, 248 (2d Cir. 2002) (“[Richard] DiLoreto admitted, under cross-examination,
that he was unaware whether . . . bonds [passed between entities he owned, in an
attempt to circumvent a consent decree] . . . were real”). Our prior decisions are In
re DiLoreto, 266 F. App’x 140, 145 (3d Cir. 2008) (Richard’s “failure to disclose
his . . . beneficial interests in various corporations and offshore entities, as well as
his false testimony . . . is sufficient evidence to support the denial of his discharge
[of debt in bankruptcy]”); and Di Loreto v. Costigan, 351 F. App’x 747 (3d Cir.
2009) (affirming dismissal of Jeanne’s claims that the Superintendent of Insurance
of New York’s efforts to enforce judgments against her resulted in a violation of
her due process rights).
3

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published methodology suggested that Regis should perhaps have been
downgraded all the way to a C or a C+ rating (a significantly more severe
downgrade than Regis actually received).
However, the District Court denied Best’s motion for summary judgment,
stating:
The Court finds that, without providing additional information,
analysis, and context, it was misleading for Best to suggest that there
had been a “recent disclosure of the lack of financial flexibility at
Regis’ privately held parent, Tiber Holding Corporation.” Best’s use
of the term “recent” implies that something vague and unspecified had
happened at Tiber in the last year to render it financially inflexible,
and thereby putting Regis at risk. But in reality, Tiber had been
insolvent for almost ten years at the time Best published its press
release. News of Tiber’s financial condition was only “recent” in the
sense that Best had recently learned of it. There is a marked and
appreciable difference between implying that Regis’ parent company
is experiencing recent financial difficulties and clearly stating that
Regis has been operating for almost ten years despite its parent
company’s financial difficulties (and that Best is only now learning of
it).
Regis Ins. Co. v. A.M. Best Co., Inc., No. 10-3171, 2013 WL 775521, at *8 (E.D.
Pa. Mar. 1, 2013) (footnote omitted).
The District Court concluded that the press release “implie[d] that something
vague and unspecified had happened at Tiber in the last year” by not considering
the fact that the press release specified what that “something” was: the “recent
disclosure of the lack of financial flexibility.” The phrasing of the press release
does not imply that Tiber’s lack of financial flexibility was itself recent, and
4

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indeed, to the extent that it implies anything other than what it literally says, it
implies that the lack of financial flexibility was not recent.4 Moreover, prior to
publishing the press release, Best twice showed Regis draft press releases
containing the identical “recent disclosure of the lack of financial flexibility”
language of which it now complains. Although Regis responded by disputing the
merits of the downgrade and threatening to sue over the downgrade, Regis never
took issue with any of the specific language used in the press release.
After allowing Regis to proceed to trial and present its case for six days, the
District Court granted judgment as a matter of law in favor of Best. The District
Court concluded that Regis did not introduce sufficient evidence to allow a
reasonable jury to conclude that Best acted with “actual malice” in issuing the
press release. The District Court then denied Regis’ request for a new trial. Regis
Ins. Co. v. A.M. Best Co., Inc., No. 10-3171, 2014 WL 2094199, at *1 (E.D. Pa.
May 20, 2014). Regis now appeals.5

4

Why else would the press release specify that there was a “recent
disclosure of the lack of financial flexibility,” as opposed to simply stating that
there was a “recent lack of financial flexibility?”
5
The District Court exercised jurisdiction pursuant to 28 U.S.C. § 1332(a);
we exercise jurisdiction pursuant to 28 U.S.C. § 1291. “We exercise plenary
review of the District Court’s grant of judgment as a matter of law,” LaVerdure v.
Cnty. of Montgomery, 324 F.3d 123, 125 (3d Cir. 2003), and review “a motion for
a new trial [for] abuse of discretion, except where a district court bases its denial of
the motion on an application of law, in which case an appellate court’s review is
plenary.” McKenna v. City of Philadelphia, 582 F.3d 447, 460 (3d Cir. 2009).
5

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As there is no dispute that the literal words of the press release were true,
Regis pursues a theory of defamation by implication or innuendo. “It is the duty of
the court in all cases to determine whether the language used in the objectionable
article could fairly and reasonably be construed to have the meaning imputed in the
innuendo. If the words are not susceptible of the meaning ascribed to them by the
plaintiff, and do not sustain the innuendo, the case should not be sent to a jury.”
McAndrew v. Scranton Republican Pub. Co., 72 A.2d 780, 783 (Pa. 1950). On
appeal, Regis makes no attempt whatsoever to defend the District Court’s
reasoning that the use of the word “recent” was misleading—instead it simply
argues that “[t]he issue of falsity should have been submitted to the jury because
the trial court had already determined that the statements in the Press Release were
capable of a defamatory meaning at the summary judgment stage.” As the words
in the press release cannot be properly construed to suggest that the “lack of
financial flexibility” was itself “recent,” Regis was not and is not entitled to have
its claim considered by a jury.6
We will affirm the District Court’s denial of Regis’ motion for a new trial.

6

See Burton v. Teleflex Inc., 707 F.3d 417, 434 (3d Cir. 2013) (under
Pennsylvania law, “[w]hether a communication is capable of defamatory meaning
is a ‘threshold issue’ to be determined by the court”); see also Gray v. St. Martin’s
Press, Inc., 221 F.3d 243, 250 (1st Cir. 2000) (appellate courts exercise de novo
review of whether a statement is capable of defamatory meaning).
6