Graphic Arts Mutual Insurance v. Caldwell Chevrolet, Inc.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 0:11-cv-01255-MBS. Copies to all parties and the district court/agency. [999143817].. [13-1241]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-1241

GRAPHIC
ARTS
MUTUAL
INSURANCE COMPANY,

INSURANCE

COMPANY;

UTICA

MUTUAL

Plaintiffs - Appellees,
v.
CALDWELL CHEVROLET,
Chevrolet,

INC.,

d/b/a

Fred

Caldwell’s

Clover

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Rock Hill.
Margaret B. Seymour, Senior
District Judge. (0:11-cv-01255-MBS)

Submitted:

June 17, 2013

Decided:

July 5, 2013

Before MOTZ, DUNCAN, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Adam J. Neil, Wesley B. Sawyer, MURPHY GRANTLAND, P.A.,
Columbia, South Carolina, for Appellant. Elizabeth S. Skilling,
John A. Merrick, Robert F. Friedman, HARMAN, CLAYTOR, CORRIGAN &
WELLMAN, Richmond, Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In this diversity insurance coverage dispute, the district
court issued a declaratory judgment finding the insurer had no
duty to defend or indemnify the insured.

See Graphic Arts Mut.

Ins. Co. v. Caldwell Chevrolet, Inc., No. 0:11-01255-MBS (D.S.C.
Sept. 10, 2012).
This

The insured now appeals and we affirm.

appeal

grows

out

of

a

suit

filed

by

a

number

of

plaintiffs in state court against Caldwell Chevrolet, Inc. and
other car dealers.
engaged

in

a

common

“administrative
characterized

Plaintiffs asserted that the dealers had

fees”
the

from
fees

practice

of

buyers.
as

collecting
The

dealers

“mandatory,”

illegal
allegedly

administrative

reimbursement for actual costs to the dealer, rather than simply
a way to inflate the price of a car.

Caldwell sought a defense

in the state action from its insurer, Graphic Arts, which agreed
to defend under a reservation of rights.
initiated

this

action,

seeking

a

Graphic Arts then

declaration

that

it

had

no

obligation to Caldwell under the policy.
The district court held that the policy issued by Graphic
Arts

did

action.

not

provide

coverage

to

Caldwell

in

the

underlying

The court reasoned that the endorsement for failing to

comply with a “[t]ruth in lending statute, or any statute that
. . .

regulates

disclosures”

did

not

apply

because

the

underlying complaint “d[id] not allege violation of a lending or
leasing

disclosure

statute.”

The
2

court

also

found

that

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“coverage does not exist” because the policy expressly excludes
coverage

for

intentional

act

“[a]ny
.

.

dishonest,
.

fraudulent,

committed

by

the

criminal

‘insured’”

and

or
the

underlying complaint made allegations falling “expressly” within
this exclusion.
On

October

9,

2012,

within

twenty-eight

days

of

the

district court’s entry of judgment, Caldwell filed a Rule 59
motion asking the district court to alter or amend its judgment
inter alia on the basis of “newly discovered evidence.”

This

“new” evidence was a March 2009 letter sent to Graphic Arts
which assertedly triggered coverage.
the

motion,

finding

Caldwell

had

The district court denied
failed

“to

demonstrate

due

diligence to discover the alleged relevance of the March Letter
to this litigation.”

See Boryan v. United States, 884 F.2d 767,

771 (4th Cir. 1989).
Caldwell then noted this appeal raising the same arguments
rejected by the district court.

After careful review of the

record, the briefs of the parties, and the controlling law, we
affirm on the basis of the careful opinions of the district
court.
legal
before

We dispense with oral argument because the facts and
contentions
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED

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