Bamford, Inc. v. Regent Insurance Company et al
MEMORANDUM AND ORDER - Defendant's motion (Filing No. 85 ) for partial summary judgment is granted. Plaintiff's request for damages for loss of business opportunities is denied as a matter of law. Ordered by Senior Judge Lyle E. Strom. (GJG)
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
BAMFORD, INC., a Nebraska
REGENT INSURANCE COMPANY,
a Wisconsin business
MEMORANDUM AND ORDER
This matter is before the Court on the motion (Filing
No. 85) of defendant Regent Insurance Company (“Regent”) for
partial summary judgment on the issue of plaintiff Bamford
(“Bamford”) Inc.’s damages for “loss of business opportunities.”
After review of the briefs, indices of evidence, and relevant
case law, the Court finds as follows.
This case concerns a breach of the fiduciary duties of
good faith and fair dealing between Regent and its insured
Bamford was in litigation regarding a vehicle
accident, and Regent supplied Bamford’s legal counsel.
of accepting settlement offers, Regent insisted upon a trial.
After the jury determined damages, the parties entered into
post-verdict settlement negotiations.
Regent paid approximately
$6,000,000 and Bamford paid $1,999,996.49 out-of-pocket.
No. 87, at 2.
Bamford claims three kinds of damages from the initial
case, the settlement damages, attorney fees, and “loss of
business opportunities” damages.
This motion concerns the “lost-
business-opportunities” form of damages.
Bamford elected to pay
its out-of-pocket expenses from an Edward Jones investment
According to Bamford, that investment account increased
significantly in value after Bamford withdrew its funds.
Bamford’s withdrawal from its investment account, Bamford “los[t]
business opportunities in the amount of $24,865.32 by losing
investment value of reserve assets in order to pay
Filing No. 87, at 3 (citing Filing No. 1).
Since the filing of the complaint, Bamford’s president, Roger
Scheidies, believes that figure increased to $540,766.12 and
Bamford has amended its complaint accordingly (Filing No. 92).
A motion for summary judgment shall be granted by the
Court “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.”
Fed. R. Civ. P. 56(a).
A “material” fact is one
that “might affect the outcome of the suit under the governing
law,” and a genuine issue of material fact exists when “the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.”
242, 248 (1986).
Anderson v. Liberty Lobby, Inc., 477
On a motion for summary judgment, facts
must be viewed in the light most favorable to the nonmoving party
only if there is a genuine dispute as to those facts.
SatCom Marketing, L.L.C., 705 F.3d 823, 828 (8th Cir. 2013).
The moving party bears the burden to establish that no
genuine issue of material fact exists.
Fed. R. Civ. P. 56(a);
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).
moving party does not meet its initial burden, summary judgment
must be denied even if no affidavits or other evidence have been
submitted in opposition to the motion.
See id. at 159-60.
the moving party has met its burden, “the non-moving party may
not rest on the allegations of his pleadings, but must set forth
specific facts, by affidavit or other evidence, showing that a
genuine issue of material fact exists.”
Singletary v. Mo. Dept.
of Corrections, 423 F.3d 886, 890 (8th Cir. 2005).
The issue before the Court is whether Bamford’s lostbusiness-opportunity damages is foreseeable.
The Court finds the
lost investment value is not foreseeable.
Regent has provided persuasive argument from the Sixth
Circuit which addresses the issue before this Court directly.
Filing No. 87, at 8 (citing Ventas, Inc. v. HCP, Inc., 647 F.3d
291, 327 (6th Cir. 2011); citing also Layne v. Bank One, Ky.,
N.A., 395 F.3d 271, 277, n.7 (6th Cir. 2005); Or. Steel Mills,
Inc. v. Coopers & Lybrand, L.L.P., 83 P.3d 322, 329-30 (Or.
2004)); Mutuelles Unies v. Kroll & Linstrom, 957 F.2d 707, 714
(9th Cir. 1992).
In Vertas, the Sixth Circuit found that
Kentucky law would “deny recovery of compensatory damages arising
from currency market fluctuations wholly unrelated to the
defendant's conduct [because t]hese damages are unforeseeable.”
Ventas, 647 F.3d at 327 (citing Or. Steel Mills, 336 Or. 329, 83
P.3d 322, 329-30).
Likewise, Bamford’s “lost-business-
opportunity” damages are unrelated to Bamford’s injury and
Bamford elected to withdraw its funds from its
Regent did not cause Bamford to liquidate
assets from this specific account.
However Bamford chose to
finance its settlement agreement, those options were not within
Regent could not have foreseen Bamford would
remove money from its investment account and that the account
would appreciate substantially in value.
Conversely, the Court
agrees with Regent when it argues, if the account decreased
substantially in value, Bamford’s damages would not sustain a
Therefore, as a matter of law, plaintiff may not
recover the difference in the value of “investment” funds that it
liquidated to pay its share of the settlement with a third party
at the time of settlement and the value that plaintiff estimates
such funds would have achieved as of May 19, 2014, had it not
liquidated the fund to settle its claims.
IT IS ORDERED:
1) Defendant’s motion (Filing No. 85) for partial
summary judgment is granted.
2) Plaintiff’s request for damages for loss of business
opportunities is denied as a matter of law.
DATED this 15th day of October, 2014.
BY THE COURT:
/s/ Lyle E. Strom
LYLE E. STROM, Senior Judge
United States District Court
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