Protection Strategies, Inc v. Starr Indemnity & Liability Co

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cv-00763-LO-IDD Copies to all parties and the district court. [999590601]. [14-1972]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1972

PROTECTION STRATEGIES, INC.,
Plaintiff - Appellant,
v.
STARR INDEMNITY & LIABILITY CO.,
Defendant - Appellee,
v.
JOSEPH RICHARDS; DAVID LUX; DAVID SANBORN; KEITH HEDMAN,
Third Party Defendants.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Liam O’Grady, District
Judge. (1:13-cv-00763-LO-IDD)

Submitted:

April 30, 2015

Decided:

May 27, 2015

Before KEENAN, WYNN, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

John A. Gibbons, DICKSTEIN SHAPIRO LLP, Washington, D.C., for
Appellant.
Cara Tseng Duffield, Mary Catherine Martin, WILEY
REIN LLP, Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Protection
district

Strategies,

court’s

order

Incorporated,

granting

Starr

(PSI)

appeals

Indemnity

&

the

Liability

Company (Starr)’s Fed. R. Civ. P. 59(e) motion to alter or amend
the court’s prior order granting Starr summary judgment in PSI’s
civil

action.

We

conclude

that

PSI

fails

to

establish

reversible error in the district court’s judgment and affirm.
In 2012, PSI and its officers were the subjects of criminal
and

civil

investigations

relative

to

the

Small

Business

Administration’s Section 8(a) program, a program designed to aid
businesses owned by certain socioeconomic groups in accessing
the federal procurement market.

In 2013, PSI’s former chief

executive officer, former chief financial officer, former vice
president, and former president pled guilty in the United States
District Court for the Eastern District of Virginia to criminal
charges for fraud or conspiracy to commit fraud in connection
with the Section 8(a) program.
Through a civil action filed in the district court, PSI
sought reimbursement under insurance policies (the 2011 policy
and the 2012 policy) issued by Starr of certain costs expended
in

connection

with

these

investigations.

reimbursed to PSI $846,483.34.

Starr

ultimately

After the officers pled guilty,

however, Starr sought recoupment of the amount paid through a
counterclaim.

The district court granted summary judgment in
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Starr’s favor, concluding that the 2011 policy controlled, each
of

the

four

coverage

exclusions

on

which

Starr

relied

(the

exclusions for profit, fraud, and prior knowledge and based on a
warranty

letter)

barred

coverage

under

the

policy,

and

that

Starr was entitled to recoupment of costs reimbursed to PSI.
Starr later moved pursuant to Rule 59(e) to alter or amend the
district

court’s

judgment

to

reflect

it

was

entitled

to

recoupment of the $846,483.34 sum, plus pre- and post-judgment
interest.
judgment

The district court granted Starr’s motion, awarded it
in

the

amount

post-judgment interest.

of

$846,483.34

and

awarded

pre-

and

PSI appeals and challenges the district

court’s grant of summary judgment in Starr’s favor.
We review de novo the district court’s award of summary
judgment and view the facts in the light most favorable to the
non-moving

party.

(4th Cir. 2013).
record

shows

Woollard

v.

Gallagher,

712

F.3d

865,

873

“Summary judgment is appropriate only if the

‘that

there

is

no

genuine

dispute

as

to

any

material fact and the movant is entitled to judgment as a matter
of law.’”

Id. (quoting Fed. R. Civ. P. 56(a)).

The relevant inquiry on summary judgment is “whether the
evidence

presents

a

sufficient

disagreement

to

require

submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.”
Lobby,

Inc.,

477

U.S.

242,

251-52
3

Anderson v. Liberty

(1986).

To

withstand

a

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summary

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judgment

competent

motion,

evidence

the

sufficient

genuine

issue

of

material

Potomac

Elec.

Power

Co.,

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non-moving
to

fact
312

party

reveal

for

F.3d

the

trial.
645,

must

existence
See

649

produce
of

Thompson

(4th

Cir.

a
v.

2002)

(“Conclusory or speculative allegations do not suffice, nor does
a

mere

scintilla

of

evidence

in

support

of

[the

non-moving

party’s] case.” (internal quotation marks omitted)).

We will

uphold the district court’s grant of summary judgment unless a
reasonable jury could return a verdict for the non-moving party
on the evidence presented.

See EEOC v. Cent. Wholesalers, Inc.,

573 F.3d 167, 174-75 (4th Cir. 2009).
We conclude after review of the record and the parties’
briefs

that

the

district

court

did

granting summary judgment to Starr.

not

reversibly

err

in

We reject as without merit

PSI’s contention that the exclusion for prior knowledge in the
2011

policy

is

not

applicable

to

because the 2012 policy controls.

bar

coverage

in

this

case

Contrary to PSI’s suggestion,

Starr did not waive its right to rely on and is not estopped
from

relying

on

the

coverage

exclusions

in

the

2011

policy.

See Ins. Co. of N. Am. v. Atl. Nat’l Ins. Co., 329 F.2d 769,
775-76 (4th Cir. 1964); State Farm Fire & Cas. Co. v. Mabry,
497 S.E.2d 844, 846 (Va. 1998); Stanley’s Cafeteria, Inc. v.
Abramson, 306 S.E.2d 870, 873 (Va. 1983).

We also reject as

unsupported by the record PSI’s contention that the warranty
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letter bars coverage in this case because the district court
impermissibly

resolved

issues

of

fact

regarding

the

circumstances under which the letter was executed to find it was
part of the 2011 policy.

We further reject as without merit

PSI’s contention that the coverage exclusions relative to profit
and fraud do not apply to bar coverage with respect to PSI’s
general counsel and two employees because the exclusions were
applicable to bar coverage for these individuals as a result of
the guilty pleas of PSI’s former chief executive officer and
chief financial officer.

Additionally, as it is clear from the

undisputed evidence of record that there were not Claims under
the

2011

policy

contention

that

with
the

respect

district

to

court

these

individuals,

improperly

PSI’s

resolved

issues to reach this conclusion is without merit.

fact

Finally, we

reject as both unsupported by the record and otherwise without
merit

PSI’s

determination

arguments
that

Starr

challenging
was

the

entitled

district
to

the

court’s

remedy

of

Accordingly, we affirm the district court’s judgment.

We

recoupment under the terms of the 2011 policy.

dispense

with

contentions

are

oral

argument

adequately

because

presented

in

the
the

facts

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED
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