Byrd & Associates PLLC, et al v. Evanston Insurance Company

Filing 511107103

Case: 09-60220

Document: 00511107103

Page: 1

Date Filed: 05/11/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-60220 S u m m a r y Calendar May 11, 2010 Lyle W. Cayce Clerk

B Y R D & ASSOCIATES, PLLC; ISAAC K BYRD, JR., Plaintiff-Appellants, v. E V A N S T O N INSURANCE COMPANY, D e fe n d a n t-A p p e lle e .

A p p e a l from the United States District Court fo r the Southern District of Mississippi U S D C No. 3:08-CV-260

B e fo r e JOLLY, WIENER, and ELROD, Circuit Judges. P E R CURIAM:
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T h e issue in this appeal is whether the district court erred when it granted s u m m a r y judgment to Evanston Insurance Company (Evanston) in its p r o fe s s io n a l liability insurance contract dispute with Byrd & Associates, PLLC (B y r d ) because the contract terms unambiguously denied coverage to the claim u n d e r ly in g the dispute. We hold that the district court did not err; therefore, we A F F IR M . B y r d initially purchased a professional liability insurance policy with
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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Case: 09-60220

Document: 00511107103 Page: 2 No. 09-60220

Date Filed: 05/11/2010

E v a n s to n in May of 2003 with coverage extending back to February 28, 2003. T h e policy was renewed annually by Byrd through February of 2006. The policy a g r e e m e n t in question has a policy period of one year beginning on February 28, 2 0 0 5 , and ending on February 28, 2006. The policy provides coverage for claims m a d e during the policy period, or the extended reporting period, because of any " A c t " occurring during the policy period, as well as any "Act" occurring prior to t h e policy period "provided that, on or prior to the effective date of this policy, no I n s u r e d was aware of any facts or circumstances from which a reasonable person w o u ld have anticipated a Claim." T h e policy defines an "Act" as "[t]he performance of or omission of a duty o r obligation by The Insured while rendering legal advice or legal services for o t h e r s ." Additionally, the policy contains a "Prior Acts Exclusion" which

p r e c lu d e s coverage as "to any Claim based upon, arising out of, or in any way in v o lv in g any Act . . . happening prior to February 28, 2003." O n March 29, 2005, Barbara Butler, a former client of Byrd's, sued Byrd f o r legal malpractice for failing to provide notice of a claim in her wrongful death m e d i c a l malpractice case within the statute of limitations prescribed by the M is s is s ip p i Tort Claims Act. See Miss. Code. Ann. § 11-46-11. Shortly

t h e r e a ft e r , Byrd filed a claim for coverage with Evanston requesting the p r o v is io n of a defense against the claim. Evanston denied the request because t h e underlying act occurred in 2000, which was prior to the coverage period. G r a n ts of summary judgment are reviewed de novo, with this court a p p ly in g the same standard as the district court, viewing the evidence in the l i g h t most favorable to the non-movant. Lauderdale v. Tex. Dep't of Criminal J u s tic e , Institutional Div., 512 F.3d 157, 162 (5th Cir. 2007). Summary

ju d g m e n t is appropriate when a review of the evidence reveals no genuine issue o f material fact and the movant is entitled to judgment as a matter of law. Fed. R . Civ. P. 56(c)(2).

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Case: 09-60220

Document: 00511107103 Page: 3 No. 09-60220

Date Filed: 05/11/2010

B y r d argues that the insurance policy in this case is ambiguous, thereby c r e a tin g a genuine issue of material fact as to what the terms of the policy mean. B y r d further argues that the policy should be construed against Evanston, the p a r ty that drafted the policy, and in favor of itself. Under Mississippi law, if the la n g u a g e in an insurance policy is clear and unambiguous, it is the duty of the ju d g e to construe the meaning of its terms as it is written. Jackson v. Daley, 739 S o . 2d 1031, 1041 (Miss. 1999). The rule of construction requiring that an in s u r a n ce policy be read in a manner favoring the insured only applies where the c o n tr a c t is ambiguous. See, e.g., Nationwide Mut. Ins. Co. v. Yelverton, 417 F. S u p p . 2d 817, 820 (S.D. Miss. 2006). Courts will not strain to find an ambiguity w h e r e none exists, but will instead fulfill the intentions of the parties. Id. "If th e policy language is clear, unequivocal, and, hence unambiguous, its terms will b e enforced." Id. (citation omitted). Byrd maintains that the "Prior Acts

E x c lu s io n " contained in the policy is inconsistent with the coverage provisions, t h e r e b y creating an ambiguity. We conclude, however, that the district court p r o p e r l y determined that no ambiguity exists in the policy agreement with r e s p e c t to the "Prior Acts Exclusion." T h e coverage provisions of the policy encompass claims arising from acts o c c u r r i n g outside of the policy period so long as Byrd was unaware of any facts fr o m which it could reasonably anticipate a claim at the time of the policy a g r e e m e n t. The "Prior Acts Exclusion" is not inconsistent with this provision as it merely clarifies that the coverage provisions (including those extending c o v e r a g e to acts occurring prior to the policy period) will not apply to any claims s t e m m in g from acts occurring prior to February 28, 2003. The "Prior Acts E x c lu s io n " caps the retroactive coverage of the insurance policy. B e c a u s e there is no ambiguity in the policy, the exclusion is to be given its fu ll effect. As such, this case requires no determination as to whether Byrd r e a s o n a b ly anticipated Barbara Butler's claim against it. Byrd's other a r g u m e n t s in this case also rely on a finding that the presence of the "Prior Acts 3

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Document: 00511107103 Page: 4 No. 09-60220

Date Filed: 05/11/2010

E x c lu s io n " creates an ambiguity in the policy, and thus we need not address t h e m . The district court properly held that no genuine issue of material fact e x is t s in this case and that Evanston is entitled to judgment as a matter of law. A F F IR M E D .

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