Maxum Indemnity Company v. Drive West Insurance Services, et al

Filing

OPINION filed : REVERSED and REMANDED, decision not for publication. Eugene E. Siler , Jr., Circuit Judge; Eric L. Clay, (authoring), Circuit Judge; and Julia Smith Gibbons, (dissenting), Circuit Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0760n.06
No. 15-3199

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MAXUM INDEMNITY COMPANY,

FILED
Nov 18, 2015
DEBORAH S. HUNT, Clerk

Plaintiff-Appellee,
v.
DRIVE WEST INSURANCE
SERVICES, INC./MULBERRY
INSURANCE SERVICES, INC., et al.,
Defendant,

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF OHIO

NATIONAL CONDO &
APARTMENT INSURANCE GROUP,
INC.,
Defendant-Appellant.

BEFORE:

SILER, CLAY, and GIBBONS, Circuit Judges.

CLAY, Circuit Judge. Plaintiff Maxum Indemnity Company filed this diversity action
pursuant to 28 U.S.C. § 1332 seeking rescission of a professional errors and omissions insurance
policy with Defendant Drive West Insurance Services, Inc. or, alternatively, a declaration that
the insurance policy fails to afford coverage in the underlying litigation by Defendant National
Condo & Apartment Insurance Group, Inc. against its insured, Drive West. We have appellate
jurisdiction pursuant to 28 U.S.C. § 1291. We disagree with the determination of the district
court that the language of the insurance contract unambiguously barred coverage of the claims

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submitted to Maxum, and therefore REVERSE and REMAND for further proceedings
consistent with this opinion.
I.
In June 2011, Drive West Insurance Services, Inc. d/b/a Mulberry Insurance Services,
Inc. (“Mulberry”), a wholesale insurance broker, contacted Defendant National Condo
& Apartment Insurance Group, Inc. (“NCAIG”), a retail insurance broker, regarding a
commercial real estate/habitation insurance program. Mulberry, a California corporation, and
NCAIG, an Ohio corporation, entered a business relationship, whereby Mulberry issued quotes
and binders for insurance coverage to NCAIG, which NCAIG then issued to its own clients.
Although the quotes and binders issued by Mulberry to NCAIG named AIX Specialty
Insurance Company (“AIX”) and North American Specialty Insurance Company as the insurance
carriers, those companies had never issued or approved the policies, whose policy limits
amounted to well over $100,000,000. At that point, unbeknownst to NCAIG, an individual
named Michael Ward, who lacked authority to sell insurance policies, was selling these
insurance policies through his captive insurance company, JRSO, Inc. The insurance coverage
that property owners thought they were buying simply did not exist.
By September 14, 2011, following communication from counsel for AIX, NCAIG
contacted Mulberry, and learned from Mulberry of the involvement of Ward and JRSO. On
September 19, 2011, counsel for AIX sent cease-and-desist letters to both Mulberry and NCAIG
informing each party that AIX had no business relationship with it, and had never issued or
approved any of the policies in question. While the letters demanded that the companies cease
using the AIX name, neither letter threatened suit. NCAIG then contacted Ward, who described
the cease-and-desist letter as a misunderstanding, and reassured NCAIG and Mulberry that he
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would secure another carrier for the insurance program. Ward subsequently informed NCAIG
that North American Specialty/Capacity, a Swiss Re entity, would be the “front paper” for the
program, and that Swiss Re would be the reinsurer, and made the same assurance to AIX
counsel. Subsequent binders and quotes issued by Mulberry to NCAIG, also fraudulent, named
North American Specialty Insurance Company (“North American Specialty”) as the carrier.
At NCAIG’s request to Ward, Mulberry was removed from the insurance program in October
2011, and was replaced the following month by another wholesale broker the following month.
Thereafter, Mulberry and NCAIG had little contact.
On February 10, 2012, Swiss Re sent Mulberry a cease-and-desist letter stating that,
pursuant to its own internal investigation and information from the Illinois Department of
Insurance, it had learned of policies issued by Ward and JRSO allegedly carried by North
American Specialty, which lacked the authority of North American Specialty. The letter warned
Mulberry that if Mulberry continued marketing policies allegedly issued by North American
Specialty, Swiss Re would “not hesitate to take all steps necessary, including injunctive relief,”
but did not request monetary relief, or threaten a suit for damages. AIX sent Mulberry a second
cease-and-desist letter on February 17, 2012 later stating that it had become aware that Mulberry
had continued to use the AIX name, although AIX itself had never issued the policies, and that
AIX would “be referring this matter to the fraud units at all appropriate Insurance Departments,”
but again did not threaten legal action. The Illinois Department of Insurance sent Mulberry a
letter on February 22, 2012, addressed only “Dear Producer or Consumer,” informing Mulberry
that it had, “or may have, been issued a binder of coverage or an insurance policy purporting to
be from” AIX or North American Specialty which may not be legally valid. The letter stated that
the Department of Insurance would “seek appropriate regulatory relief for affected parties” and

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that the Offices of the Special Deputy Receiver had identified and seized monies that may have
been intended as premium payments, but did not suggest legal action against Mulberry itself.
Meanwhile, Mulberry had applied for professional errors and omissions liability coverage
through Maxum Indemnity Corporation (“Maxum”), a Delaware corporation with its principal
place of business in Georgia, on January 31, 2012. In response to Question 12(C), which asked
if the Applicant had “any knowledge of any potential errors or omissions claim(s),” Mulberry
checked “No.” Maxum issued professional liability insurance policy PFP 6018512-01 (the
“Policy”) to Mulberry; coverage began March 1, 2012. The exclusions section of the Policy
provided, in relevant part:
This insurance does not apply to:
J. Any “claim” arising out of or resulting from any “wrongful act” or
“personal/advertising injury”,
(1) Disclosed in your application of insurance or any accompanying
documents provided to us; or
(2) You had knowledge of or information related to, prior to the first
inception date of the continuous claims-made coverage with us,
and which may result in a “claim”.
Under the Policy, a “wrongful act” was “any actual or alleged negligent act, error or omission in
the rendering or failure to render ‘professional services’.” The Policy defined “claim,” in turn, as
a “written or verbal demand received by any ‘insured’ for money or services, including notice of
service” of a civil proceeding for monetary damages or “institution of any administrative,
judicial, arbitration or alternative dispute proceedings against any ‘insured’.” The scope of its
duty to defend, pursuant to coverage section 1(A), was as follows:
We will have the right and duty to defend any “insured” against any “suit”
seeking those “damages”. However, we will have no duty to defend an “insured”
against any “suit” seeking “damages” for a “wrongful act” to which this insurance
does not apply.
The policy did not include a choice of law.

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In Spring 2012, upon becoming aware of the lack of valid insurance for their property,
some of the property owners filed suit against NCAIG, alleging breach of contract, negligence,
and breach of fiduciary duty. NCAIG sent Mulberry a letter on June 26, 2012 notifying it of the
lawsuits and of its intention to hold Mulberry responsible for losses caused to NCAIG. NCAIG
proceeded to file third-party claims and cross-claims against Mulberry in several lawsuits.
By August 27, 2012, Maxum was aware of three claims filed by NCAIG against
Mulberry, and undertook an investigation. Invoking Exclusion J.2, Maxum denied liability
coverage to Mulberry for the third-party claims and cross-claims asserted by NCAIG in a letter
dated October 8, 2012 on the basis that Mulberry had “knowledge and information relating to”
the forged insurance before Mulberry’s professional liability coverage began on March 1, 2012.
The Policy was rescinded effective October 15, 2012. As NCAIG continued to assert third-party
claims and cross-claims claims against Mulberry, Maxum continued denying coverage. On June
14, 2014, NCAIG obtained a default judgment against Mulberry in one of the underlying actions.
On March 20, 2013, Maxum filed suit in the United States District Court for the Southern
District of Ohio against Mulberry, NCAIG, and others seeking rescission of the Policy or, in the
alternative, a declaration that Maxum had no obligation to defend or indemnify Mulberry in any
of several underlying lawsuits because Exclusion J.2 excluded those claims from coverage.
Mulberry did not defend this litigation, and a default judgment entered against it on May
29, 2013. Maxum and NCAIG then cross-moved for summary judgment. Maxum’s motion for
summary judgment asked the court only for a declaration that Exclusion J.2 of the Policy did not
cover the claims in the underlying litigation.

Maxum argued that the relevant provision

contained unambiguous language excluding the underlying claims from coverage, since letters
had been sent to Mulberry before the inception date of the policy on March 1, 2012. For its part,

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NCAIG argued that the language of the policy excluded only those damage claims of which
Mulberry had subjective knowledge prior to the inception date of the Policy, and that Maxum
had failed to show that Mulberry had known of any specific claims. It also contended that
Maxum had breached its duty to defend Mulberry in the underlying litigation, and wrongfully
denied coverage.
The district court declined to conduct a choice-of-law analysis, choosing instead to rely
on basic principles of contract interpretation on which Ohio and California law do not differ. As
it read the Policy, Exclusion J.2 unambiguously covered all wrongful acts of which Mulberry
knew prior to coverage. Because the claims NCAIG sought to bring arose from the wrongful
acts of Ward, of which Mulberry had related information prior to the inception, it held NCAIG’s
claims excluded from coverage.

Any other reading, including NCAIG’s preferred reading

requiring subjective knowledge of specific claims was strained, in its view. Accordingly, it
denied NCAIG’s motion for summary judgment. It granted summary judgment to Maxum and
issued a declaration stating that “the insurance contract between Plaintiff and Mulberry does not
afford coverage and Plaintiff owes no obligation under such contract to Defendants or any other
entity or individual in connection with the underlying actions.” NCAIG appealed.
II.
We review a grant of summary judgment de novo. Kalamazoo Acquisitions, L.L.C. v.
Westfield Ins. Co., 395 F.3d 338, 341 (6th Cir. 2005). Summary judgment is warranted where
“the pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Id. (citing Fed R. Civ. P. 56(c)). On crossmotions for summary judgment, “the court must evaluate each party’s motion on its own merits,

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taking care in each instance to draw all reasonable inferences against the party whose motion is
under consideration. B.F. Goodrich Co. v. U.S. Filter Corp., 245 F.3d 587, 592 (6th Cir. 2001)
(citing Taft Broadcasting Co. v. U.S., 929 F.2d 240, 248 (6th Cir.1991)).
A. Choice of Law
As a threshold matter, we must decide, as the district court did not, which state’s law to
apply.

The district court adopted Maxum’s argument that choice-of-law analysis was

unnecessary because it would win under application of either Ohio or California law.

Its

decision cited case law from both jurisdictions in support of its ultimate result. The better course
of action would have been to choose which state’s law applied.
Federal courts sitting in diversity apply the choice-of-law rules of the forum state; here,
Ohio. See Performance Contracting Inc. v. DynaSteel Corp., 750 F.3d 608, 611 (6th Cir. 2014).
Under Ohio choice-of-law rules, courts interpreting contracts that lack choice-of-law provisions
“apply the law of the state with the most significant relationship to the contract.” Int’l Ins. Co. v.
Stonewall Ins. Co., 86 F.3d 601, 604 (6th Cir. 1996). In assessing the significance of those
relationships, Ohio has adopted the test articulated in §§ 188 and 6 of the Restatement (Second)
of Conflict of Laws. Id. Section 188 provides:
(1) The rights and duties of the parties with respect to an issue in contract are
determined by the local law of the state which, with respect to that issue, has
the most significant relationship to the transaction and the parties under the
principles stated in § 6.
(2) In the absence of an effective choice of law by the parties . . . the contacts to
be taken into account in applying the principles of § 6 to determine the law
applicable to an issue include:
(a) the place of contracting,
(b) the place of negotiation of the contract,
(c) the place of performance,
(d) the location of the subject matter of the contract, and
(e) the domicil, residence, nationality, place of incorporation and place of
business of the parties.
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The general principles articulated in § 6 are as follows:
(1) A court, subject to constitutional restrictions, will follow a statutory directive
of its own state on choice of law.
(2) When there is no such directive, the factors relevant to the choice of the
applicable rule of law include
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative
interests of those states in the determination of the particular
issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.
The insurance contract at issue in this case was between Mulberry, a California
corporation, and Maxum, a Delaware corporation with its principal place of business in Georgia.
Mulberry negotiated the contract and entered into it from California. Maxum would have
tendered any payment under the contract to Mulberry in California, but the lawsuits it chose not
to defend were filed in state and federal courts located in Ohio. The fraudulent quotes and
binders at issue in those suits were apparently issued to owners of properties in a variety of
jurisdictions. Weighing the Restatement factors, we deem California to have had the most
significant relationship to the Maxum Policy, the parties to it, and performance under its terms.
B. Interpretation of Exclusion J.2 under California contract law
Under California law, “ordinary rules of contractual interpretation apply” to insurance
contracts. Palmer v. Truck Ins. Exch., 21 Cal. 4th 1109, 1115 (1999). Courts place the burden of
proving an exclusion on the insurer; if an exclusion “ambiguously lends itself to two or more
reasonable constructions, the ambiguity will be resolved against the insurer and in favor of
coverage.” Smith Kandal Real Estate v. Cont’l Cas. Co., 67 Cal. App. 4th 406, 414 (1998).
Exclusion J.2 provides that the Policy did not cover:
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J. Any “claim” arising out of or resulting from any “wrongful act” or
“personal/advertising injury”,
(1) Disclosed in your application of insurance or any accompanying
documents provided to us; or
(2) You had knowledge of or information related to, prior to the first
inception date of the continuous claims-made coverage with us,
and which may result in a “claim”.
NCAIG argues that only those claims arising from wrongful acts that they subjectively
believed, prior to inception of the Policy, would result in claims that are uncovered. Maxum
counters that the Exclusion J.2 applies to all claims where the insured simply had information
prior to the coverage period relating to a “wrongful act” that resulted in a claim. Especially
because the presumption of coverage is so strict, we are not prepared to say that either
construction is unreasonable in this case.

This Court is therefore obliged to construe the

language of the Policy in favor of coverage. See Smith Kandal Real Estate, 67 Cal. App. 4th at
406.
NCAIG raises a separate issue, barely addressed by Maxum, as to whether Maxum
breached its duty to defend Mulberry in the underlying litigation. The Policy states:
We will have the right and duty to defend any “insured” against any “suit”
seeking those “damages”. However, we will have no duty to defend an “insured”
against any “suit” seeking “damages” for a “wrongful act” to which this insurance
does not apply.
In NCAIG’s view, because the Maxum failed to show that Mulberry subjectively believed that
the issuance of the fraudulent insurance would result in a claim, it also breached its duty to
defend the litigation, and is therefore liable for the default judgment. See Gray v. Zurich Ins.
Co., 65 Cal. 2d 263, 279 (1966) (holding that insurance companies that breach the duty to defend
to be liable on any subsequent judgment).
The next inquiry is whether the knowledge of claims should be subjective or objective:
namely, whether the language applies only to those wrongful acts that Mulberry believed, prior
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to coverage, would turn into claims or whether it applies to claims that it should have known
would do so. Without citing any case law applying an objective standard to similar language,
Maxum argues that, if Mulberry had issued over $100 million in false insurance, “claims were all
but a certainty.” Pl. Br. at 22.
While the court below agreed with Maxum’s interpretation of the language, other courts
have read similar language to cover only those claims that the insured, at inception, subjectively
anticipated might result in claims. See McDowell Bldg., LLC v. Zurich Am. Ins. Co., No. Civ.
RDB-12-2876, 2015 WL 1656497, at *2 (D. Md. Apr. 13, 2015) (exclusion where “prior to the
effective date of this policy you or any ‘Insured’ had no knowledge of any ‘claim’ or
circumstances, involving an act, error, or omission, which may result in a ‘claim’ under this
policy” applied only to outstanding claims and to circumstances that insured subjectively
believed would result in suit); see also Rivelli v. Twin City Fire Ins. Co., 359 F. App’x 1, 3 (10th
Cir. 2009) (affirming district court’s holding that exclusion for “any knowledge or information of
any act, error, omission, fact or circumstance which may give rise to a claim” necessitated a
subjective knowledge standard); James River Ins. Co. v. Hebert Schenk, P.C., 523 F.3d 915, 921
(9th Cir. 2008) (holding that where law firm’s insurance application had asked whether any
attorneys, “[a]fter inquiry . . . [were] aware of any circumstances, allegations . . . or contentions
as to any incident which may result in a claim,” the language “‘may result’ denote[d] something
more than a purely theoretical possibility of a lawsuit”). NCAIG also notes that courts finding
exclusions for claims of which an insured should have known usually on language about
reasonable foreseeability. See, e.g., Weddington v. United Nat’l Ins.Co., 346 Fed. App’x 224,
226 (9th Cir. 2009). Maxum does not cite any cases in which courts construed similar exclusions

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and relies on its analysis of lack of ambiguity. We agree with other courts that a subjective
knowledge standard is appropriate under this contract language.
Maxum can still evade coverage if it shows that Mulberry was subjectively aware of the
potential for suit arising from the unauthorized insurance prior to coverage. However, it has not.
In its policy application dated January 31, 2012, Mulberry represented that it knew of no
potential claims. Neither the letter it received in September 2011 from AIX nor any of the three
letters it received in February 2012 from AIX, Swiss Re, and the Illinois Department of
Insurance mentioned any potential demands for monetary relief, let alone a lawsuit for damages.
Maxum thus failed to meet its burden of showing that the claims were excluded based on
Mulberry’s prior knowledge, and is not entitled to summary judgment on the issue of coverage.
Furthermore, Maxum was not entitled to the declaration issued by the district court that it
had no duty to defend Mulberry. Under California law, the duty to defend an insured “aris[es]
on tender of defense and last[s] until the underlying lawsuit is concluded or until it has been
shown that there is no potential for coverage.” Montrose Chem. Corp. v. Super. Ct., 6 Cal. 4th
287, 295 (1993). An insurer’s duty to defend depends on the facts known to it at the time
defense is denied, rather than the ultimate adjudication of coverage. See Nat’l Steel Corp. v.
Golden Eagle Ins. Co., 121 F.3d 496, 500 (9th Cir. 1997). An insurer who refuses to defend (as
opposed to defending and reserving its rights to seek indemnification later from the insured) does
so at its own risk: if the insurer wrongfully refuses to defend, it will be bound by any ensuing
judgment against the insured. See Gray, 65 Cal. 2d at 279. Maxum may be bound by the default
judgment NCAIG secured against Mulberry.
NCAIG’s cross-motion for summary judgment must also be evaluated on its own merits.
See B.F. Goodrich Co., 245 F.3d at 592. That we must now construe all disputed facts in favor

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of Maxum, rather than NCAIG, does not affect our analysis that the policy applies to claims
concerning which an insured had information prior to the coverage period. The bar is lower for
NCAIG to establish a duty to defend than for Maxum to evade it; under California law, “the
insured need only show that the underlying claim may fall within policy coverage; the insurer
must prove it cannot.” Montrose Chem. Corp., 6 Cal. 4th at 300 (1993). The record does not
establish that Mulberry knew of claims prior to March 1, 2012. Moreover, because any dispute
about insurance language must be resolved in favor of coverage if language can be reasonably
construed to cover a claim, the third-party claims and cross-claims are covered by the policy, as
NCAIG contends in its motion for summary judgment. See Smith Kandal Real Estate, 67 Cal.
App. 4th at 414. Thus, the district court should not have issued a declaration that Maxum owed
no duty to NCAIG or Mulberry. NCAIG is entitled to summary judgment on the issues of
breach of the duty to defend and of coverage under the Policy.
III.
For the foregoing reasons, we REVERSE the district court’s grant of summary judgment
to Maxum, VACATE its declaration that Maxum owed no duty to NCAIG or Mulberry, and
REMAND for further proceedings, with an instruction to enter summary judgment in favor of
NCAIG.

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JULIA SMITH GIBBONS, Circuit Judge, dissenting. Because I do not think the
insurance policy clause in question is ambiguous, I respectfully dissent.
As the district court notes, this case “turns on whether Exclusion J.2 is ambiguous.”
Maxum Indem. Co. v. Drive W. Ins. Servs., Inc., No. 1:13-cv-191, 2015 WL 457025, at *3 (S.D.
Ohio Feb. 3, 2015). Under both California and Ohio law, contract terms are ambiguous when
subject to two or more reasonable interpretations. Savedoff v. Access Grp., Inc., 524 F.3d 754,
763 (6th Cir. 2008) (citing Covington v. Lucia, 784 N.E.2d 186, 190 (Ohio Ct. App. 2003));
Meridian Leasing, Inc. v. Associated Aviation Underwriters, Inc., 409 F.3d 342, 346 (6th Cir.
2005) (citing Safeco Ins. Co. of Am. v. Robert S., 28 P.3d 889, 893 (Cal. 2001)). I agree with the
district court that National Condo & Apartment Insurance Group’s (NCAIG) reading of the
exclusion clause is “strained” and therefore unreasonable.

Maxum Indem. Co., 2015 WL

457025, at *3.
Exclusion J, in full, provides:
This insurance does not apply to:
J.
Any “claim” arising out of or resulting from any “wrongful act” or
“personal/advertising injury”,
(1)
Disclosed in your application of insurance or any
accompanying documents provided to us; or
(2)
You had knowledge of or information related to, prior to
the first inception date of the continuous claims-made
coverage with us, and which may result in a “claim”.
NCAIG’s version of the exclusion essentially reads:
This insurance does not apply to:
J.
Any “claim” . . . (2) You had knowledge of or information related to . . .
and which may result in a “claim”.

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Instead of reading “knowledge of or information related to” as modifying “claim,” as NCAIG
advocates, it makes considerably more sense for clause (2) to refer to “wrongful act” or
“personal/advertising injury.”
In my opinion, NCAIG’s contrary interpretation is unreasonable, and I would affirm the
district court’s grant of summary judgment, because “[t]he claims Defendants seek to assert arise
from Ward’s wrongful acts of which Mulberry had related information prior to the insured timeperiod.” Maxum Indem. Co., 2015 WL 457025, at *3.

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