Capital Environmental Services v. North River Insurance Company
Filing
UNPUBLISHED AUTHORED OPINION filed. Originating case number: 1:10-cv-00792-TSE-TCB Copies to all parties and the district court/agency. [998884786].. [11-1326]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1326
CAPITOL ENVIRONMENTAL SERVICES, INCORPORATED,
Plaintiff - Appellant,
v.
NORTH RIVER INSURANCE COMPANY,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
T. S. Ellis, III, Senior
District Judge. (1:10-cv-00792-TSE-TCB)
Argued:
May 17, 2012
Before NIEMEYER and
Senior Circuit Judge.
Decided:
GREGORY,
Circuit
Judges,
Affirmed by unpublished opinion.
Judge
opinion, in which Judge Niemeyer joined.
June 28, 2012
and
Gregory
HAMILTON, 1
wrote
the
ARGUED:
Stephen Anthony Horvath, BANCROFT, MCGAVIN, HORVATH &
JUDKINS, PC, Fairfax, Virginia, for Appellant.
Margaret F.
Catalano, CARROLL, MCNULTY & KULL, LLC, Basking Ridge, New
Jersey, for Appellee.
ON BRIEF:
Melissa H. Katz, Wesley D.
Allen, BANCROFT, MCGAVIN, HORVATH & JUDKINS, PC, Fairfax,
Virginia, for Appellant. Heather E. Simpson, CARROLL, MCNULTY &
1
Because Senior Judge Hamilton did not participate in oral
argument due to illness, this decision is filed by a quorum of
the panel, pursuant to 28 U.S.C. § 46(d).
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KULL, LLC, Basking Ridge, New Jersey; Craig J. Franco, ODIN,
FELDMAN & PITTLEMAN, PC, Fairfax, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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GREGORY, Circuit Judge:
Capitol
Environmental
Services,
Inc.
(“Capitol”)
argues
that the district court erred in granting summary judgment in
favor
of
The
North
River
Insurance
Company
(“North
River”)
because the settlement agreement between Capitol and Earth Tech,
Inc.
(“Earth
Tech”)
included
the
contractual
dismissed as moot by the Florida state courts.
indemnity
claim
We disagree.
We
hold that because Capitol could never be held liable for any
damages to Earth Tech on a theory of contractual indemnity after
Earth Tech was made whole on its breach of contract claim, North
River has no duty to indemnify Capitol for the damages covered
by the settlement agreement.
I.
Capitol is a waste-disposal company that had been hired as
a contractor by St. Marks Refinery for waste disposal.
Capitol
in
provide
turn
hired
Earth
Tech
as
a
subcontractor
to
hazardous-waste transportation and disposal services.
Capitol
also subcontracted with Freehold Cartage, Inc. (“FCI”) to pick
up and transport waste from St. Marks Refinery to the disposal
facility.
On
September
25,
2002,
as
FCI
employee
Peter
Blash
was
backing a semi-tractor-trailer into the St. Marks Refinery, his
tractor-trailer lay across Virginia State Road 363, and Annette
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Carey collided into the tractor-trailer, resulting in injuries
to her and her husband.
center
line
of
the
The tractor-trailer was angled over the
road
so
that
its
headlights
pointed
in
Carey’s lane, which caused a glare that distracted her from the
trailer
ahead
providing
in
her
lane.
Earth
Tech
was
responsible
flagmen
to
direct
traffic
at
the
site.
for
Several
witnesses testified that an Earth Tech flagman “jumped” in front
of
her
vehicle,
causing
her
to
swerve
and
hit
the
tractor-
trailer.
Carey filed suit in state court in Florida against Peter
Blash, FCI, and Earth Tech for her injuries and her husband’s
loss of consortium.
Earth Tech and FCI each paid $250,000 in
2006 to extinguish their respective liabilities in the action.
Earth
Tech
filed
a
third-party
complaint
against
Capitol,
alleging, inter alia, breach of contract, contractual indemnity,
and common-law indemnity.
On March 29, 2007, the Second Judicial Circuit for Wakulla
County, Florida, granted Earth Tech’s motion for partial summary
judgment
against
Capitol,
holding
that
Capitol
breached
the
subcontract because it failed to purchase adequate insurance to
cover Earth Tech’s subcontract work.
The court subsequently
granted Capitol’s motion for summary judgment on the common-law
indemnity charge but denied it as to the contractual indemnity
claim.
The
trial
court
sua
sponte
4
severed
the
contractual
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indemnity claim, and the breach of contract claim went to a jury
to determine damages.
The jury awarded $585,525 to Earth Tech
on February 6, 2008, for the breach of contract claim.
On
July
13,
2007,
Capitol
filed
a
declaratory
judgment
action against North River in the United States District Court
for
the
Eastern
indemnification
Capitol.
District
according
of
Virginia
to
North
seeking
River’s
defense
policy
and
held
by
The district court found that it would be premature to
award summary judgment on the indemnification claim because the
record was “insufficiently developed” because Florida courts had
“not yet ruled on whether Capitol breached its duty to indemnify
Earth Tech.”
Capitol Envt’l Servs., Inc. v. North River Ins.
Co., 536 F. Supp. 2d 633, 645-46 (E.D. Va. 2008).
The court
noted, “North River has a duty to indemnify Capitol in the Earth
Tech
action
only
if
Capitol
demonstrates
that
it
was
found
liable to Earth Tech for bodily injury actually covered by the
North River policy.”
Id. at 645.
Accordingly, the court said,
if Capitol’s liability arose out of Earth Tech’s negligence,
that would give rise to Capitol’s liability to Earth Tech only
under a breach of contract theory, which in turn would not be
covered by North River’s policy.
Id.
The parties agreed in a joint stipulation that the Florida
court
was
the
appropriate
forum
to
resolve
the
remaining
contractual indemnity claim between Earth Tech and Capitol, but
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that in the event that the Florida court did not consider the
indemnity claim, the parties would return to Virginia federal
court to resolve the issue.
Capitol
sought
indemnity
claim
denied.
The
in
a
the
court
trial
for
Florida
dismissed
the
court,
the
severed
which
the
contractual
contractual
trial
court
indemnification
claim as moot, finding that any damages that would be awarded to
Earth Tech on this claim would be duplicative of the damages
awarded for breach of contract.
On
May
28,
2008,
the
Circuit
Court
of
Wakulla
County,
Florida, entered final judgment on the breach of contract claim
in
favor
of
Earth
district
court
judgment,
but
Tech,
of
and
appeal
added
Capitol
in
appealed
Florida,
prejudgment
to
which
interest
the
first
affirmed
to
the
bringing the total final judgment to $889,152.72.
the
damages,
On November
30, 2009, the first district court of appeal affirmed the trial
court’s decision that the contractual indemnity claim was moot.
Neither
Capitol
nor
Earth
Tech
sought
appeal
to
the
Florida
Supreme Court.
In August 2010, Capitol and Earth Tech entered a settlement
agreement, in which Capitol agreed to pay $769,087,68 to Earth
Tech
according
to
a
payment
schedule
in
satisfaction
of
the
judgment and “all claims and counterclaims asserted, or which
could have been asserted.”
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On
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July
16,
2010,
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Capitol
filed
a
second
declaratory
judgment action against North River in the eastern district of
Virginia, which action forms the basis for the instant appeal.
The district court denied Capitol’s motion for summary judgment
and granted North River’s on March 15, 2011, holding that North
River has no duty to indemnify Capitol.
The court found that
the dismissal of the contractual indemnity claim on mootness
grounds constituted an adjudication on the merits under Florida
law
and
that
litigating
legally
Earth
the
Tech
issue
obligated
is
precluded
again.
to
pay
As
by
Earth
such,
Tech
res
judicata
Capitol
under
never
the
from
became
contractual
indemnity theory, and accordingly North River had no duty of
indemnification.
settlement
The
agreement
court
between
further
Capitol
determined
and
Earth
that
Tech
did
the
not
encompass the contractual indemnity claim because that claim had
already been extinguished according to a final decision of the
Florida state courts.
Capitol filed a notice of appeal to this Court.
II.
On
between
appeal,
Capitol
Capitol
and
argues
Earth
that
Tech
the
settlement
includes
the
agreement
dismissed
contractual indemnity claim and that North River must indemnify
Capitol
for
this
claim
according
7
to
its
insurance
policy.
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Reviewing de novo the district court’s grant of summary judgment
for North River, see Higgins v. E.I. Dupont de Nemours & Co.,
863 F.2d 1162, 1167 (4th Cir. 1988), we affirm.
North River’s policy covers “those sums that the insured
becomes legally obligated to pay as damages because of ‘bodily
injury’
or
‘property
damage.’”
includes a carve out:
J.A.
243.
The
. . .
also
North River is not obligated to pay for
damages assumed in a contract or agreement.
exception
policy
to
the
exception:
[t]hat
the
insured
contract or agreement.”
there
would
is
have
J.A. 243.
But there is an
coverage
in
the
for
absence
“damages
of
the
The settlement agreement
between Capitol and Earth Tech is an assumption of liability by
Capitol,
absence
and
of
Capitol).
Capitol
the
would
agreement
have
(due
to
had
that
the
liability
court
judgment
in
the
against
The parties agree that the judgment against Capitol
for breach of contract is not covered by the North River policy.
The
only
question
that
remains
agreement
between
Capitol
and
is
whether
Earth
Tech
the
settlement
included
the
contractual indemnity claim, which could be covered by the North
River policy.
Capitol argues that because the settlement agreement covers
“all claims and counterclaims asserted, or which could have been
asserted” in the Earth Tech and Capitol law suit, the agreement
necessarily covers the claim for contractual indemnity despite
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the fact that the state appeals court had ordered judgment for
$889,152.72 on the breach of contract claim.
Capitol’s argument
is unconvincing.
First, the judgment for $889,152.72 made Earth Tech whole
for its injury.
Even if judgment were somehow awarded against
Capitol under the contractual indemnity theory, Capitol would
owe no amount of money under such a theory because Earth Tech
has already recovered the full amount of its injury.
At the
time
legally
of
the
obligated
agreement,
pay
to
settlement
Tech
Earth
Capitol
damages
was
under
not
the
contractual
indemnity theory.
Capitol is not now -- nor will it ever be --
legally
to
obligated
pay
damages
to
Earth
Tech
under
the
contractual indemnity theory.
In any case, there has never been
a
under
judgment
against
Capitol
the
contractual
court
decision
indemnity
theory.
Second,
the
Florida
state
that
the
contractual indemnity claim was moot was a final judgment on the
merits, and therefore the claim could not be reasserted against
Capitol.
Florida Rule of Civil Procedure 1.420(b) states that
any involuntary dismissal “other than a dismissal for lack of
jurisdiction
or
for
improper
venue
or
for
lack
of
an
indispensable party, operates as an adjudication on the merits.”
One Florida appellate court has observed that “[t]he reluctance
of
the
Florida
courts
to
decide
9
moot
questions
is
based
on
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policy reasons, not lack of jurisdiction.”
Merkle v. Jacoby,
912 So. 2d 593, 594 (Fla. Dist. Ct. App. 2d Dist. 2005) (citing
Cook v. City of Jacksonville, 823 So. 2d 86 (Fla. 2002).
Under
Florida law, even if a case would otherwise be moot, a court may
nonetheless
consider
the
exceptions applies:
merits
when
one
of
three
policy
“(i) when questions raised are of great
public importance, (ii) when the questions raised are likely to
recur,
or
affect
(iii)
the
rights
determined.”
v.
State,
when
of
the
collateral
a
party
legal
consequences
from
the
flow
issue
that
to
be
J.A. 445 (district court opinion) (citing Godwin
593
So.
2d
211,
212
(Fla.
1992)).
The
Florida
appellate court in Merkle reasoned that because the mootness
rule in Florida is policy-based, dismissal on mootness grounds
is not jurisdictional for purposes of Rule 1.420(b).
See also
Semtek Intern. Inc. v. Lockheed Martin Corp., 513 U.S. 497, 501503 (2001) (discussing the history of the federal counterpart,
Rule 41(b)); Allie v. Ionata, 503 So. 2d 1237, 1241 (Fla. 1987)
(same) (holding that “[a] judgment on the merits precluding the
relitigation of the same cause of action is one based on the
legal rights and liabilities of the parties, as distinguished
from
one
based
contentions,
procedure.”).
or
on
on
technical
mere
matters
Therefore,
under
10
or
dilatory
of
form
Florida
or
objections
of
law
practice
the
or
or
mootness
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judgment was a valid and final decision on the merits at the
time of the settlement agreement between Capitol and Earth Tech.
No court has ever held that Capitol is liable to Earth Tech
for damages under a theory of contractual indemnity.
Because
the indemnity claim against Capitol had been dismissed as moot
and the settlement agreement did not resurrect it, Capitol was
not legally obligated to pay Earth Tech damages for indemnity.
The
North
River
policy
covers
“legally obligated to pay.”
only
claims
which
Capitol
is
Therefore, North River does not
have a duty to indemnify Capitol under the insurance policy.
The district court was correct to conclude that “the settlement,
which
purported
Capitol,
cannot
to
settle
be
said
all
to
claims
have
between
encompassed
Earth
Tech
and
the
breach
of
contractual indemnity claim because, at the time the settlement
was consummated, that covered claim was already extinguished.” 2
J.A. 446-47.
2
Capitol also argues that the district court erred in
concluding that res judicata barred it from considering whether
Capitol was liable to Earth Tech under the contractual indemnity
claim. But neither res judicata nor claim preclusion can apply
under Florida law when, as here, the parties to the prior and
subsequent proceedings are not the same.
E.C. v. Katz, 731
So.2d 1268, 1270 (Fla. 1999) (deciding that there is no doctrine
of non-mutual collateral estoppel in Florida, contrary to
federal law).
“[U]nless both parties are bound by the prior
judgment, neither may use it in a subsequent action.” Stogniew
v. McQueen, 656 So.2d 917, 919 (Fla. 1995); Massey v. David, 831
So. 2d 226, 233 (Fla. App. 1st Dist. 2002). Nor does Florida’s
privity exception apply on these facts. See Sentry Ins. v. FCCI
(Continued)
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For the foregoing reasons, we affirm the district court’s
grant of summary judgment for North River.
AFFIRMED
Mut. Life Ins. Co., 745 So.2d 349, 350 (Fla. 4th Dist. Ct. App.
(1999)) (applying res judicata where parties are not identical
because the insurance company’s and the insured’s “interests
were not antagonistic”).
Therefore, the Florida state court
decision that Earth Tech’s contractual indemnity claim was moot
does not bind Capitol in its instant litigation for indemnity by
North River.
Nevertheless, this is a pyrrhic victory for Capitol
because, as already stated, under no circumstances can Capitol
be liable for damages to Earth Tech under the theory of
contractual indemnification after Earth Tech was made whole by
the award of damages on the breach of contract claim.
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