St. Paul Mercury Insurance Co. v. American Bank Holdings, Inc.

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 8:09-cv-00961-RWT. [999795180]. [15-1559]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1559

ST. PAUL MERCURY INSURANCE COMPANY,
Plaintiff - Appellee,
v.
AMERICAN BANK HOLDINGS, INC.,
Defendant - Appellant,
and
AMIEL CUETO,
Defendant.
------------------------UNITED POLICYHOLDERS,
Amicus Supporting Appellant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:09-cv-00961-RWT)

Argued:

January 27, 2016

Decided:

April 14, 2016

Before TRAXLER, Chief Judge, and WILKINSON and NIEMEYER, Circuit
Judges.

Affirmed
opinion,
joined.

by
in

published opinion.
Judge Niemeyer wrote the
which Chief Judge Traxler and Judge Wilkinson

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ARGUED: Albert Joseph Mezzanotte, Jr., WHITEFORD, TAYLOR &
PRESTON, L.L.P., Baltimore, Maryland, for Appellant.
Thomas
James Judge, Jr., LOSS, JUDGE & WARD, LLP, Washington, D.C., for
Appellee.
ON BRIEF: Dwight W. Stone, II, WHITEFORD, TAYLOR &
PRESTON, L.L.P., Baltimore, Maryland, for Appellant.
Brent H.
Olson, LOSS, JUDGE & WARD, LLP, Washington, D.C., for Appellee.
Lorelie S. Masters, Christopher R. Healy, PERKINS COIE LLP,
Washington, D.C.; Amy Bach, Dan Wade, UNITED POLICYHOLDERS, San
Francisco, California, for Amicus Curiae.

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NIEMEYER, Circuit Judge:
On June 18, 2008, American Bank Holdings, Inc., was served
with a complaint and summons that issued from a state court in
Belleville,

Illinois.

Because

of

an

internal

oversight,

however, American Bank did not respond to the summons, and the
court,

on

July

23,

2008,

entered

a

$98.5

million

default

judgment against it.

Some eight months after receipt of the

summons,

25,

on

February

insurance company

2009,

American

Bank

notified

its

-- St. Paul Mercury Insurance Company -- of

the lawsuit, and St. Paul Insurance denied coverage due to the
late notice.

American Bank was thereafter able to have the

default judgment vacated and the lawsuit dismissed, but at an
expense of some $1.8 million.
In this action, which St. Paul Insurance filed to obtain a
declaratory judgment that it had no duty to pay for American
Bank’s

defense,

American

Bank

filed

a

counterclaim

for

a

declaratory judgment that it was indeed owed reimbursement for
its defense and for damages based on the amount of attorneys
fees and costs incurred both in the underlying action and in
this action.
On the parties’ cross motions for summary judgment, the
district court entered judgment for St. Paul Insurance.

Among

other things, the court concluded that because American Bank did
not

provide

St.

Paul

Insurance
3

with

notice

“as

soon

as

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practicable,” as required by the terms of its insurance policy,
and because the late notice caused St. Paul Insurance prejudice,
St. Paul Insurance was within its right to deny coverage.

We

affirm.
I
On

June

11,

2008,

Amiel

Cueto,

a

disbarred

lawyer

and

convicted felon who was acting pro se, filed an action in the
St. Clair County Circuit Court in Belleville, Illinois, against
American

Bank

and

10

other

defendants,

alleging

that

they

fraudulently failed to fund his $8 million sale of real property
to Lester J. Petty and Associates, Inc., causing the deal to
collapse.

The complaint sought both compensatory and punitive

damages.

Both

however,
engage

in

that
any

American
American
lending

Bank
Bank,

and
as

business

St.

Paul

a

holding

as

alleged

Insurance
company,
and

event, it conducted no business in Illinois.

agree,

did

that,

not

in

any

Indeed, American

Bank, based in Maryland, asserts that it had nothing to do with
the

Illinois

transaction

and

suggests

that

the

suit

was

frivolous, if not fraudulent.
The complaint against American Bank and the summons were
served on June 18, 2008, on CT Corporation as the agent of
American Bank for receiving service of process in Maryland.

The

next day, CT Corp. transmitted the papers to American Bank’s
office in Greenbelt, Maryland, addressed to American Bank’s CFO,
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in

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accordance

with

the

Pg: 5 of 26

standing

received from American Bank.

instructions

that

it

had

As of that time, however, American

Bank’s CFO had left the employ of American Bank.

An officer of

an American Bank subsidiary subsequently came across the papers
and forwarded them to American Bank’s local lawyer in late July
2008.

But the lawyer claimed that he never received them.

American

Bank

failed

to

respond

to

the

Cueto

suit,

When
Cueto

obtained a default judgment on July 23, 2008, in the amount of
$7,390,855.10

in

compensatory

damages,

$66,517,695.90

in

punitive damages, and $24,636,183.65 in attorneys fees, for a
total of $98,544,734.65.
More than six months later, Cueto began efforts to collect
on the default judgment in Maryland and elsewhere, sending the
relevant court papers to American Bank. American Bank received
them

around

insurance
papers.

February

broker,

13,

providing

the

and

thereafter

broker

with

notified

copies

of

its
the

The broker in turn notified St. Paul Insurance by email

on February 25, 2009.
Paul

2009,

Insurance

had

any

This was the first point at which St.
knowledge

of

the

default judgment, or the collection efforts.
acknowledged

receiving

the

papers

on

Cueto

lawsuit,

the

St. Paul Insurance

February

26,

2009,

and

explained that it “retain[ed] the right to raise any and all
coverage issues and to assert appropriate coverage defenses that
may apply during the course of our investigation.”
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American Bank’s general counsel Erik Bolog called St. Paul
Insurance’s claims counsel, Christopher Nelson, the next day, on
February
Nelson
“yes.”

27,

“if

2009.

we

During

During

the

telephone

were

covered

for

this,”

the

ensuing

call,

and

investigation

Bolog

Nelson

of

the

asked

responded
claim

and

coverage for it, Nelson prepared draft letters dated March 13
and March 16, 2009, stating St. Paul Insurance’s position and
confirming that the Cueto complaint “involve[d] a Lending Act,”
for which the policy provides coverage, but “reserv[ing] the
right to deny coverage due to late notice.”

On April 15, 2009,

St. Paul Insurance formally notified American Bank that St. Paul
Insurance was denying coverage due to a lack of timely notice.
The letter stated:
I have reviewed the Lawsuit and the Policy in order to
determine whether coverage is afforded.
As we have
discussed, I regret to inform you that [St. Paul
Insurance] must decline coverage for this matter.
As
you know, the Policy provides:
The Insureds shall, as a condition precedent
to their rights under this Policy, give to
the Insurer written notice of any Claim made
against the Insureds as soon as practicable,
but in no event later than: (a) sixty (60)
days after expiration of the Policy Year in
which the Claim was first made . . . .
*

*

*

Clearly, notice was not given to [St. Paul Insurance]
within the time provided for in the Policy and [St.
Paul Insurance] therefore must decline coverage on
this basis.
In addition to the Bank’s failure to
comply with the Policy’s condition precedent to
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coverage,
the
Bank’s
action,
prejudiced [St. Paul Insurance].

or

inaction,

has

Before even notifying St. Paul Insurance of the Cueto suit,
American Bank retained the law firm of Bryan Cave in St. Louis,
Missouri, which filed unsuccessful motions in the Illinois state
court

to

lawsuit.

vacate

the

default

judgment

and

dismiss

the

Cueto

After American Bank then retained the Chicago firm of

Sidley Austin to oversee appeals, an Illinois state appellate
court

held

that

the

trial

court

did

not

have

personal

jurisdiction over American Bank and accordingly dismissed the
Cueto

suit,

a

ruling

that

Cueto

did

not

appeal

further.

American Bank estimated that it spent approximately $1.8 million
in its efforts to resist enforcement of the default judgment and
have the Cueto lawsuit dismissed.
During the course of the proceedings in Illinois, on June
1, 2009, Cueto sent a demand letter to American Bank, seeking a
settlement of his claims in exchange for payment of $10 million.
American Bank passed the letter on to St. Paul Insurance and
demanded that St. Paul Insurance settle the claim for an amount
“within

the

policy

limits.”

St.

repeated its denial of coverage.

Paul

Insurance,

however,

American Bank never accepted

Cueto’s settlement, instead pursuing its efforts to have the
default judgment overturned in court.

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St. Paul Insurance commenced this action for a declaratory
judgment that it had no duty to provide coverage to American
Bank

because

American

Bank

failed

to

provide

it

with

notice of the Cueto suit, as required by the policy.

timely
By an

amended complaint, it also contended that American Bank breached
its duty under the policy to defend the Cueto suit upon being
served

with

it.

declaratory

American

judgment

that

Bank
it

filed

indeed

a

had

counterclaim
coverage

for

under

a

the

policy and for damages for reimbursement of its attorneys fees
and costs.

In its counterclaim, American Bank advanced theories

of coverage based on waiver and estoppel.

It also asserted a

statutory claim under Maryland law for a lack of good faith in
denying insurance coverage.
On the parties’ cross motions for summary judgment, the
district court granted judgment to St. Paul Insurance and denied
American Bank’s motion.

It concluded that American Bank had

provided late notice of Cueto’s suit and that St. Paul Insurance
had suffered prejudice as a result.

It also concluded that

American Bank breached its duty timely to defend the suit, also
resulting

in

prejudice

to

St.

Paul

Insurance.

Finally,

it

rejected American Bank’s claims of coverage based on waiver and
estoppel and its claim based on St. Paul Insurance’s lack of
good faith in denying coverage.

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the

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district

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court’s

judgment,

American

Bank

filed

this appeal, contending (1) that it provided timely notice to
St.

Paul

Insurance;

(2)

that

defend;

and

(3)

that

respect

to

its

waiver,

it

material

complied

factual

estoppel,

with

its

disputes

and

bad

duty

remain

faith

to

with

claims,

precluding the entry of summary judgment against it.

II
American Bank contends first that, contrary to the district
court’s

holding,

it

provided

St.

Paul

Insurance

with

timely

notice of the suit because it provided St. Paul Insurance with
notice within days of when it first learned of the suit around
February 13, 2009.

As American Bank argues, its “obligation to

notify St. Paul was not triggered until it had actual knowledge
of the Cueto action, shortly after February 12, 2009.
from that time, [its] notice was not late.”

Measured

(Emphasis added).

It argues further that the policy does not support the district
court’s ruling that “constructive notice via service of process
on

the

insured’s

constitute[d]

actual

registered
notice

agent

for

[on

purposes

obligation to notify St. Paul of a claim.”

June

of

18,

triggering

2008]
[its]

Finally, it reasons

that “common sense dictates that there can be no obligation to
notify

St.

Paul

of

a

claim

until

knowledge of it.”

9

the

insured

has

actual

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making

this

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lack-of-actual-notice

argument,

American

Bank fails to provide textual support based on the terms of the
St. Paul Insurance policy.

Indeed, the term “actual knowledge”

is foreign to the notice provision contained in the policy.

The

policy provision reads:
The Insureds shall, as a condition precedent to their
rights under this Policy, give to the Insurer written
notice of any Claim made against the Insureds as soon
as practicable, but in no event later than: (a) sixty
(60) days after expiration of the Policy Year in which
the Claim was first made . . . .
(Emphasis added).
defined

to

The term “Claim” as used in the provision is

include,

as

relevant

here,

“a

civil

proceeding

against any Insured commenced by the service of a complaint or
similar pleading.”
policy,

the

(Emphasis added).

requirement

to

give

Thus, according to the

notice

is

triggered

not

by

“actual knowledge” of a claim, but by “service of a complaint”
upon the insured.

The two, however, are effectively the same in

the circumstances presented in this case.
Here,

there

is

no

dispute

that

the

Cueto

complaint

was

served on CT Corp. on June 18, 2008, and that CT Corp. was
American Bank’s designated resident agent for receiving service
of

process.

Under

Maryland

law,

every

corporation

designate a resident agent to receive service of process.
Md. Code Ann., Corps. & Ass’ns § 2-108(a)(2).

must
See

Maryland law also

provides that “[s]ervice of process on the resident agent . . .

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constitutes

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effective

corporation.”

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service

of

Id. § 1-401(a).

process

.

.

.

on

the

Thus, service on CT Corp. on

June 18, 2008, effected service on American Bank, triggering
American Bank’s duty to notify St. Paul Insurance “as soon as
practicable” thereafter.
While the insurance policy does not use the term “actual
knowledge” to trigger the notice requirement, American Bank was
nonetheless

also

imputed,

as

a

matter

of

law,

with

actual

knowledge as of June 18, 2008, under established principles of
Maryland agency law.
can

have

knowledge

Because a corporation is a fiction that
only

through

its

agents,

knowledge

of

an

agent acquired within the scope of the agency relationship is
imputable to the corporation.

See Plitt v. Kellam, 160 A.2d

615, 619 n.4 (Md. 1960) (“The knowledge [of the agent that is]
imputed
(emphasis

to

the

added));

principal
see

is

also

considered

Martin

actual

Marietta

Corp.

knowledge”
v.

Gould,

Inc., 70 F.3d 768, 773 (4th Cir. 1995) (“Thus, under the rule of
imputation the principal is chargeable with the knowledge the
agent has acquired, whether the agent communicates it or not”
(applying Maryland law)).

As such, on June 18, 2008, when CT

Corp. was served with process in the Cueto case -- process that
was

physically

transmitted

to

American

Bank

the

next

day

--

American Bank, as a corporation, had “actual knowledge” of the
lawsuit.

Thus, while we reject the premise of American Bank’s
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argument that it was required by the policy to give notice only
after it received “actual knowledge” of the suit, we nonetheless
conclude that, as a matter of law, American Bank received actual
knowledge of the suit on June 18, 2008, when its authorized
agent, CT Corp., was served with process.
American Bank seeks to avoid these conclusions by claiming
that the suit papers, which were addressed and delivered to the
desk of its CFO, were not effectively served on it because, as
of that time, its CFO had departed from its employ.

But this

argument overlooks the fact that the papers were delivered to
American Bank by CT Corp. in the manner that American Bank had
previously instructed.

The most that American Bank’s argument

accomplishes is to reveal the fact that the suit papers were not
routed internally so as to get promptly into the hands of its
counsel.

As the district court found, “through a variety of

corporate screw-ups, significant suit papers that should have
gotten

immediate

attention

didn’t.”

But

internal

“corporate

screw-ups” provide no basis to excuse American Bank’s failure to
give St. Paul Insurance timely notice of the Cueto suit after
being validly served with process.
Alternatively,
St.

Paul

Insurance

American
with

Bank

notice

contends
on

that,

February

in
25,

providing
2009,

it

effectively satisfied the policy’s notice provision because the
policy authorizes a notice either “as soon as practicable” or by
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60 days after the expiration of the policy year on October 1,
2008,

i.e.,

by

November

29,

2008.

Focusing

on

the

second

option, it argues that its failure to satisfy the November 29
deadline was of no legal moment because, by then, the July 2008
default judgment had already been entered, making the difference
between a “timely” notice by November 29, 2008, and notice on
February 25, 2009, insignificant, as St. Paul Insurance could
not have suffered prejudice, as required by Maryland law, if its
position would have been the same on November 29, 2008, and
February 25, 2009.
This argument, however, rests on a misreading of the notice
provision contained in the policy.

While American Bank suggests

that the notice provision gives it two alternative deadlines for
providing notice -- either “as soon as practicable” or “sixty
(60)

days

after

interpretation

is

expiration
not

of

supported

the
by

Policy
the

Year”

text.

--

The

this
notice

provision reads, “The Insureds shall . . . give to the Insurer
written notice of any Claim . . . as soon as practicable, but in
no event later than . . . sixty (60) days after expiration of
the

Policy

Year.”

(Emphasis

added).

The

policy’s

notice

provision thus defines a single deadline for providing notice,
i.e.,

“as

soon

as

practicable,”

and

the

required

notice

can

never be later than 60 days after the expiration of the policy
year.

This is indicated by the language, “but in no event later
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than.”

In short, American Bank had a continuing duty to provide

notice

as

soon

as

practicable,

so

long

as

the

as-soon-as-

practicable notice did not come later than 60 days after the
policy term, and it failed to comply with that duty here.
American Bank argues against this interpretation further by
contending
deadline
summary

that

St.

position
judgment

Paul

as

its

stage,

Insurance
own

suggesting

forfeited the argument.

the

practicable.

policy

its

took

reply

that

St.

the
brief

Paul

singleat

the

Insurance

The record, however, does not support

American Bank’s assertion.
quoted

until

never

In its complaint, St. Paul Insurance

provision

requiring

notice

as

soon

as

It then alleged that, because that provision was

not complied with, the condition precedent to coverage was not
satisfied.

And

again,

in

its

opening

brief

in

support

of

summary judgment, St. Paul Insurance quoted the policy provision
and argued, “Had St. Paul been provided with notice as soon as
practicable,
properly

it

could

retained

and

have

ensured

timely

filed

that
an

defense

counsel

appropriate

dismiss for lack of personal jurisdiction.”

motion

was
to

(Emphasis added).

Then, during oral argument before the district court, counsel
for St. Paul Insurance again stated:
With respect to late notice, that’s the second duty
that was breached by [American Bank].
Under the
notice provision, they have to provide notice as soon
as practicable.
And under case law back in 2009 and
case law now, the as-soon-as-practicable provision has
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always, generally in most states, [required] proof of
prejudice, whereas the latter part of the notice
provision, where it says notice within sixty days of
the expiration of the policy has been considered a
claims-made
provision
that
has
to
be
enforced
strictly.
[American Bank] did not provide notice as
soon as practicable.
(Emphasis

added).

In

ruling

on

the

motions

for

summary

judgment, moreover, the district court relied only on the “as
soon as practicable” language to define the notice requirement,
analyzing

it

in

duty to defend.

conjunction

with

American

Bank’s

contractual

It concluded that “as soon as practicable”

meant in sufficient time to file a response in court on behalf
of American Bank “within the time set by the Illinois court
system for responding to lawsuits,” in this case, 30 days after
service.

American

Bank’s

argument

that

St.

Paul

Insurance

forfeited its argument for a single deadline simply cannot be
maintained.
In any event, notwithstanding American Bank’s efforts to
constrict

St.

Paul

Insurance’s

position

with

its

forfeiture

argument and thereby limit the scope of our review, our ultimate
task is to review the district court’s judgment and the relevant
policy language on which the judgment was based.

The district

court held that American Bank failed to provide notice as soon
as practicable, and the policy supports that ruling, describing,
as

we

hold,

a

single

as-soon-as-practicable

deadline

for

providing notice, so long as the notice is not more than 60 days
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after

the

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policy

term.

The

Pg: 16 of 26

defining

characteristic

of

that

notice obligation is notice given “as soon as practicable.”
In sum, when American Bank was served with the complaint
and summons in the Cueto suit on June 18, 2008, its duty to
notify

St.

Paul

Insurance

was

triggered.

Yet,

it

did

not

provide St. Paul Insurance with notice until eight months later,
on February 25, 2009.

No one can credibly argue that that lapse

of time was “as soon as practicable.”

As a result, American

Bank’s notice to St. Paul Insurance was not timely.
American Bank maintains correctly, however, that even if it
failed to provide notice as soon as practicable, Maryland law
still

requires

that

St.

Paul

Insurance

“establish[]

by

a

preponderance of the evidence that the lack of . . . notice has
resulted in actual prejudice to [it].”
§ 19-110 (emphasis added).

Md. Code Ann., Ins.

The Maryland Court of Appeals has

recognized that “[i]t is very difficult to fashion a workable
‘one

size

fits

all’

standard”

to

define

actual

prejudice.

Allstate Ins. Co. v. State Farm Mut. Auto. Ins. Co., 767 A.2d
831, 841 (Md. 2001).
involved

an

insured’s

But under the facts before it, which
lack

of

cooperation

rather

than

late

notice, the Maryland Court of Appeals interpreted § 19-110’s
prejudice requirement to hold that the insurer suffered actual
prejudice when “there was a credible defense to be presented and

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. . . [the insured’s] non-cooperation precluded State Farm from
even presenting that defense.”

Id. at 844.

In this case, the district court concluded that American
Bank’s late notice precluded St. Paul Insurance from exercising
its contractual rights, as stated in the policy, to participate
in

American

strategies

Bank’s

before

defense

the

and

default

advance

judgment

credible
was

defense

entered.

It

explained:
Had the insured not breached its obligation [to give
timely notice and] to defend, this would have been a
relatively trivial matter [based on a lack of personal
jurisdiction] and, by any standards -- with apologies
to Potter Stewart, I know it when I see it -- this is
prejudice.
Even

though

American

Bank

had

the

contractual

duty

to

provide its own defense, for which it would, under the policy,
be

reimbursed

by

St.

Paul

Insurance,

the

policy

nonetheless

provides that St. Paul Insurance “shall have the right and shall
be

given

the

opportunity

to

effectively

associate

with,

and

shall be consulted in advance by, [American Bank] regarding:
(a)

the

selection

substantive
the

filing

defense
and

of

strategies,

content

settlement negotiations.”
late

notice

denied

appropriate

St.

of

defense

counsel;

including

decisions

substantive

motions;

(Emphasis added).
Paul

Insurance

the

(b)

regarding
and

(c)

American Bank’s
opportunity

to

participate in the selection of counsel, to speak with counsel,

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discuss

credible

Pg: 18 of 26

defense

strategies

Cueto’s suit before the default judgment.

for

dismissing

St. Paul Insurance

was also denied the opportunity to involve itself in considering
the possibility of settlement negotiations with Cueto prior to
the

default

judgment

and

prior

to

the

expenditure

million incurred by American Bank to vacate it.
notice

precludes

an

insurer

from

of

$1.8

When a late

exercising

meaningful

contractual rights provided to it by the policy -- in this case,
all the contractual rights -- we agree with the district court
that the insurer has suffered actual prejudice.
Accordingly,

we

affirm

the

district

court’s

judgment

concluding that St. Paul Insurance was entitled, by reason of
late notice, to deny insurance coverage to American Bank for the
Cueto suit.
untimely

Because we conclude that American Bank’s notice was

and

caused

prejudice,

we

need

not

address

St.

Paul

Insurance’s alternative argument that American Bank should also
be

denied

coverage

because

it

breached

its

contractual

duty

timely to defend the Cueto action.

III
American Bank also contends that St. Paul Insurance waived
or

is

estopped

from

asserting

its

late-notice

defense

to

coverage and that the district court erred in granting St. Paul
Insurance summary judgment with respect to these arguments.

18

It

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relies

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mainly

on

a

telephone

Pg: 19 of 26

conversation

initiated

by

its

general counsel, Erik Bolog, with St. Paul Insurance’s claims
counsel, Christopher Nelson, on February 27, 2009, during which
Nelson

stated,

according

to

American

coverage existed for the Cueto suit.
it

relied

on

this

representation

Bank,

that

insurance

American Bank claims that
“in

deciding

to

continue

litigating the Cueto Action, whereas it would have pursued early
settlement if St. Paul had instead declined coverage.”
The
showing

district
that

court,

American

relying

Bank

on

changed

the

absence

its

of

evidence

position,

rejected

American Bank’s arguments, stating, “I don’t see any basis on
this summary judgment record, with all of the inferences given
in favor of American Bank Holdings, that there was any change of
position in reliance upon that or any prejudice to American Bank
Holdings to the extent that I credit the notion that someone
said, ‘You’re covered,’ and then changed their mind.”

We agree

with the court’s conclusion for multiple reasons.
With respect to waiver, the record facts do not support any
finding of an intentional waiver by St. Paul Insurance of its
late-notice

defense.

The

record

shows

that

American

Bank’s

insurance broker forwarded the Cueto suit papers by email to St.
Paul Insurance on February 25, 2009, telling St. Paul Insurance
that American Bank was “no[t] involved or related to any of the
entities

or

individuals

that

are
19

listed.”

The

broker

also

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advised St. Paul Insurance that American Bank had hired the law
firm of Bryan Cave in St. Louis to represent it.

Responding the

next day, February 26, St. Paul Insurance acknowledged receipt
of the email, stating that it “retain[ed] the right to raise any
and

all

coverage

issues

and

to

assert

appropriate

coverage

defenses that may apply during the course of our investigation.”
On the following day, February 27, 2009, American Bank’s
general counsel Bolog called St. Paul Insurance’s claims counsel
Nelson to discuss the suit.

As of that time, American Bank had

already retained Bryan Cave to represent it in the Cueto suit,
and Bryan Cave had already filed a motion on American Bank’s
behalf to

vacate

stated

his

in

the

$98.5

deposition

million

that

he

default

called

judgment.

because

of

Bolog
the

big

problem he had, especially because the judgment was so large and
the suit was so frivolous.

In this context, he asked whether

American

for

“yes.”

Bank

was

“covered

this,”

and

Nelson

responded

Taken in context, this statement related to whether the

type of claim described by Bolog would fall under the policy and
did not respond or even relate to a late-notice question.
conversation, according to Bolog, went as follows:
My recollection of the call with Mr. Nelson was that I
called him and told him we had a problem. It was a 98
million-dollar judgment against us.
The judgment was in my mind disturbing for numerous
factors, most importantly being that [American Bank]
had never done any business whatsoever in Illinois,
20

The

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Pg: 21 of 26

had no relationship whatsoever to the transaction,
which was part of the underlying claim, that somehow a
by now I know convicted felon who had done 7 and a
half years for fraud and other related issues upon a
court had obtained a 98 million-dollar judgment
against [American Bank] for something [American Bank]
had no involvement in nor did [American Bank’s
subsidiary] for that matter have any involvement in,
that the judgment on its face was certainly corrupt,
that somehow 66 million dollars in punitive damages
had been awarded into a trust on behalf of St. Clair
County, and this judge allowed this person who had
been disbarred and spent 7 and a half years in prison
for frauds upon the court to be the trustee, to be
able to use those funds for whatever purpose he so
chose, including settling the compensatory part of the
claim, and then awarded 30 some-odd million dollars in
legal fees to a law firm that entered its appearance
the day after the judgment had been entered. I found
all that to be disturbing to say the least.
Then I’ve learned of course that the plaintiff was a
former trial lawyer who was a convicted felon.
I
advised him that this felon’s brother was the chief
judge of this court, that the associate judge,
Gleeeson, who was the judge that signed this order,
somehow needed the approval of the brother to become a
tenured judge, and that from all accounts from
newspapers and all the information I could gather, St.
Clair County, Illinois, was known as a judicial
cesspool and that questionable judgments and verdicts
happened there on a regular basis.
I asked him if we were covered for this.
He said,
yes.
He did not equivocate.
He did not say, we’re
taking a look at it.
I have no recollection of any
type of ambivalence in his position.
(Emphasis added).

Remarkably, this conversation did not include

any discussion of notice, nor did it indicate that St. Paul
Insurance

was

waiving

any

late-notice

defense.

Indeed,

the

record makes clear that St. Paul Insurance intended to preserve
a late-notice defense, as further evidenced during the next two
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weeks, when it drafted at least two letters stating that as its
position.
explained,

In

each

“Although

draft,
it

it

recited

appears

that

the

the

facts

Claim

and

then

involves

a

Lending Act [for which Lender Liability Coverage was afforded by
the policy], it is not clear whether notice was given to [St.
Paul Insurance] as soon as practicable.

[St. Paul Insurance]

reserves the right to deny coverage due to late notice.”

On

April 15, 2009, at the conclusion of its investigation, St. Paul
Insurance sent American Bank a letter formally denying coverage
for a lack of timely notice.
In this context, there was no waiver of the late-notice
defense.

Maryland

intention

to

Law

relinquish

requires
an

that

existing

waiver
right,

be

“an

actual

benefit,

or

advantage, with knowledge, either actual or constructive, of its
existence, or such conduct as to warrant an inference of such
intention to relinquish.”

Creveling v. GEICO, 828 A.2d 229, 243

(Md. 2003) (emphasis added) (internal quotation marks omitted)
(quoting GEICO v. Grp. Hosp. Med. Servs., 589 A.2d 464, 466 (Md.
1991)).
If Bolog’s testimony is accurate -- and, at this stage we
assume that it is -- it appears that Nelson’s affirmation of
coverage was referring to no more than the nature of the claim
as a Lending Act and the Lender Liability Coverage provided by
the policy, as noted in Nelson's draft letters.
22

In no manner

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could Nelson’s response be construed as an actual intention to
waive the late-notice defense.
waiver

from

Nelson’s

And there is no basis to infer

conduct.

Moreover,

because

St.

Paul

Insurance had the suit papers for only a day, it would not be
reasonable to conclude that it had conducted an investigation
and intentionally decided in the conversation on February 27,
2009, to waive any late-notice defense.
American Bank also relies on a telephone conversation on
March 16, 2009, in which St. Paul Insurance’s claims counsel
allegedly told American Bank representatives that American Bank
could not settle the Cueto suit without St. Paul Insurance’s
consent,

allegedly

implying

coverage.

But,

again,

that

conversation did not relate to the late-notice issue, nor did it
in any way indicate a waiver of the notice requirement.

To the

contrary, at the time the statement was made, St. Paul Insurance
was

still

considering

whether

to

provide

coverage

with

a

reservation of rights to deny coverage due to late notice, as
indicated in the draft letters dated March 13 and March 16,
2009.

While

coverage,

the

St.

Paul

record

Insurance

facts

do

ultimately

not,

to

any

decided
extent,

to

deny

support

American Bank’s claim that this March 16 conversation manifested
St. Paul Insurance’s intent to waive its right to assert a latenotice defense to coverage.

23

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The same record facts also require rejection of American
Bank’s estoppel argument.

Under Maryland law, “[o]ne asserting

the benefit of an estoppel must have been misled to his injury
and have changed his position for the worse.”
Jefferson

Nat’l

Life

(emphasis added).

Ins.

Co.,

302

A.2d

49,

Rubinstein v.
52

(Md.

1973)

We again see no evidence in the record that

would permit a reasonable jury to conclude that American Bank
actually changed its position for the worse in reliance on its
conversations with St. Paul Insurance representatives.
American Bank contends that, had it known that St. Paul
Insurance

would

deny

coverage

in

April

2009,

it

would

have

sought a settlement, mediation, or other resolution of the Cueto
suit in February or March 2009.
credit such claims.

But no reasonable jury could

Indeed, Bolog’s conversation with Nelson

and American Bank’s early retention of Bryan Cave suggest that,
based

on

its

assessment

that

the

suit

was

frivolous

and

apparently corrupt, American Bank was not thinking of settlement
or an alternative dispute resolution at all.

Moreover, there is

no evidence that if it had sought a settlement, it would have
received a more favorable outcome than it actually received -i.e., vacating the default judgment and dismissing the case at a
cost

of

some

$1.8

million.

In

fact,

the

only

evidence

of

settlement was Cueto’s later offer to settle for $10 million,
which

American

Bank

refused

to
24

accept.

In

short,

American

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Bank’s

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estoppel

argument

Pg: 25 of 26

amounts

to

pure

speculation.

See

Creveling, 828 A.2d at 247 (refusing to find an estoppel when
the

“prejudice

or

detrimental

reliance

suffered

. .

.

[was]

purely speculative”).
We

therefore

conclude

that

the

district

court

properly

rejected American Bank’s waiver and estoppel arguments.

IV
Finally,

American

Bank

contends

that

St.

Paul

Insurance

failed to act in good faith in denying coverage for the Cueto
claim, in violation of Maryland statutory law.
Ann., Cts. & Jud. Proc. § 3-1701.

See Md. Code

We conclude that this claim

was properly dismissed.
Section 3-1701(d)(1)(i) provides that the statutory claim
for failure to act in good faith applies to civil actions in
which

the

actually

insured
exists

seeks

under

a

an

determination
insurance

of

policy,

whether
and

§

coverage
3-1701(e)

requires a finding “in favor of the insured” on that coverage
question.

See Md. Code Ann., Cts. & Jud. Proc. §§ 3-1701(d), 3-

1701(e).

In view of our ruling that the district court did not

err

in

condition

concluding
precedent

that
of

American
coverage

Bank
by

failed

failing

to
to

satisfy
give

a

timely

notice, American Bank cannot satisfy the statutory requirement
under

§

3-1701(e)

that

there

be

25

a

finding

in

favor

of

the

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insured that coverage actually existed.

We therefore affirm the

district court’s summary judgment on this claim.
*

*

*

For the reasons given, the judgment of the district court
is
AFFIRMED.

26