Amica Mutual Insurance Company v. Gibbs Armstrong Borochoff Mullican & Hart, P.C. et al

Filing 34

OPINION AND ORDER by Judge Terence Kern ; granting in part and denying in part 17 Motion to Dismiss (cds, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
AMICA MUTUAL INSURANCE COMPANY, )
)
Plaintiff,
)
)
v.
) Case No. 10-CV-218-TCK-TLW
)
GIBBS ARMSTRONG BOROCHOFF
)
MULLICAN & HART, P.C., GEORGE
)
GIBBS, an individual, and GEORGE
)
MULLICAN, an individual,
)
)
Defendants.
)
OPINION AND ORDER
Before the Court is Defendants’ Motion to Dismiss First Amended Complaint (Doc. 17),
wherein Defendants move for dismissal of Plaintiff’s First Amended Complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”).
I.

Background
The following facts are alleged in Plaintiff’s First Amended Complaint. Plaintiff Amica

Mutual Insurance Company (“Amica”) insured Larry Cantrell (“Cantrell”) under a personal
automobile insurance policy that provided uninsured/underinsured (“UM/UIM”) coverage. Cantrell
was a police officer for the City of Sapulpa and was killed in a motor vehicle accident while on duty
on July 31, 2005. Iris Cantrell (“Mrs. Cantrell”), Cantrell’s mother, was appointed personal
representative of Cantrell’s estate and contended that the accident was caused as a result of the
negligence of an uninsured or underinsured motorist. Cantrell’s estate submitted a UM/UIM claim
to Amica as a result of the accident and death of Cantrell.
In February 2007, Amica retained Defendants Gibbs Armstrong Borochoff Mullican & Hart

(“Law Firm”) and George Gibbs (“Gibbs”) for “coverage advice and additional advice with respect
to Amica’s investigation of the UM claim presented by [Mrs. Cantrell].” (First. Am. Compl. ¶ 8.)
On March 13, 2007, Gibbs provided a written coverage opinion to Amica, concluding that uninsured
motorist coverage did not apply to Mrs. Cantrell’s claim. Specifically, Gibbs stated:
We believe the police vehicle which your insured and his father occupied at the time
of the accident does not meet the definition of an uninsured motor vehicle pursuant
to the [P]olicy. Therefore, we feel the uninsured motorist coverage does not apply.
(Id. ¶ 9 (“First Coverage Opinion”).) Amica alleges that the First Coverage Opinion was in error
and that Gibbs drafted a second opinion (“Second Coverage Opinion”) dated March 16, 2007,
revising his opinion and concluding that “[Cantrell] would obviously meet the definition of an
insured under the Uninsured Motorist Coverage Section Policy.” (Id. ¶ 11.) However, Gibbs
concluded that Amica’s ultimate liability analysis was correct because “we have no reason to believe
that (the other driver involved in the accident with Cantrell) was more than 50 percent at fault for
the subject accident” based on (1) Oklahoma Highway Patrol’s conclusion that “[C]antrell was
traveling at an excessive rate of speed at the time of the accident and (2) the adverse driver was not
in [Cantrell’s] lane at the time [Cantrell] swerved to avoid a collision with the adverse vehicle.” (Id.
¶ 13.) Amica relied on Gibb’s advice and subsequently denied Mrs. Cantrell’s claim. Amica also
generally alleges that Gibbs advised Amica to “close its file without communicating its [denial]
decision to Mrs. Cantrell” and “keep a low profile and let sleeping dogs lie.” (Id.) In addition,
Amica contends that Gibbs did not recommend hiring an accident reconstructionist or suggest that
Amica pursue any additional avenues of investigation.
Mrs. Cantrell, as administratrix of Cantrell’s estate, filed suit against Amica for bad faith and
breach of contract on April 14, 2008 in Creek County, Oklahoma (“underlying action”). Law Firm

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continued its representation of Amica, defending Amica against Mrs. Cantrell’s suit. Specifically,
Defendant George Mullican (“Mullican”) handled the underlying action on behalf of Law Firm.
Amica alleges that Mullican “was convinced that [Mrs. Cantrell’s] bad faith claim was without merit
and that the advice provided to Amica by Law Firm was sound.” (Id. ¶ 15.) Amica further alleges
that the lawsuit could have been settled for $200,000.00 but that Mullican discouraged any attempt
to settle, instead recommending that Amica pursue discovery and eventually file a motion for
summary judgment.
The underlying action was removed to this court on September 17, 2008 and assigned to the
Honorable Judge Claire V. Eagan. Amica contends that “[b]y early 2009, [it] began questioning the
advice it had been given by Law Firm, Gibbs, and Mullican.” (Id. ¶ 18.) In March 2009, Amica
reassigned the underlying action to another law firm and “became convinced that the advice it had
been given by Law Firm, Gibbs[,] and Mullican was erroneous and that such advice had actually
increased the value of Plaintiff’s bad faith claim.” (Id. ¶ 19.)
Amica filed a motion for summary judgment in the underlying action, which was denied by
Judge Eagan. Judge Eagan found that there were genuine issues of material fact sufficient to
preclude summary judgment on the breach of contract claim, including facts regarding the location
of the vehicles involved in Cantrell’s accident and Cantrell’s speed. (See Doc. 126 in Case No. 08CV-0546-CVE-PJC).1 Judge Eagan also denied summary judgment on the bad faith claim, finding

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The Court’s recitation of Judge Eagan’s findings does not convert Defendants’ Motion to
Dismiss into one for summary judgment. Specifically, a court may “take judicial notice of its own
files and records, as well as facts which are a matter of public record” without converting a motion
to dismiss into a motion for summary judgment. Tal v. Hogan, 453 F.3d 1244, 1265 n. 24 (10th Cir.
2006) (citing Van Woudenberg ex rel. Foor v. Gibson, 211 F.3d 560, 568 (10th Cir. 2000)).

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that Mrs. Cantrell raised genuine issues of fact as to whether Amica “overlooked relevant material
facts, and as to whether a more thorough investigation would have produced relevant information.”
(Id. 11.) Specifically, Judge Eagan cited questions of fact regarding whether Amica could have
discovered additional relevant information had it hired its own accident reconstructionist. Judge
Eagan also found:
Mrs. Cantrell has also offered sufficient evidence from which a jury could find that
[Amica] handled her claim in bad faith. Mrs. Cantrell has offered evidence that
[Amica] originally was not going to investigate her claim at all[,] attempted to keep
her from retaining an attorney[,] and closed her filed without communicating its
decision to her in a timely manner. Mrs. Cantrell did not learn of [Amica’s] decision
until over a year and a half after she notified [Amica]. When discussing the insurer’s
duty of good faith and fair dealing the Oklahoma Supreme Court has stated that “[o]f
particular importance is the delicate position of the insured after a loss is incurred.
. . .” [Buzzard v. Farmers Ins. Co., Inc., 824 P.2d 1105, 1109 (Okla. 1991).]
Particularly in light of its knowledge that Mrs. Cantrell lost her son and husband, a
jury could reasonably find that [Amica’s] conduct towards Mrs. Cantrell was
unreasonable under the circumstances.
(Id. 11-12.) The underlying matter was settled subsequent to Judge Eagan’s summary judgment
ruling and was therefore never tried to a jury. Amica represents that the settlement amount was
“substantially in excess of $200,000.[00]” (Id. ¶ 23). Amica now brings suit against Defendants
for contribution, professional negligence/legal malpractice, and indemnity. Defendants have moved
to dismiss all claims.
II.

Rule 12(b)(6) Standard
In considering a motion to dismiss under Rule 12(b)(6), a court must determine whether the

plaintiff has stated a claim upon which relief may be granted. The inquiry is “whether the complaint
contains ‘enough facts to state a claim to relief that is plausible on its face.’” Ridge at Red Hawk,
LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544)). In order to survive a Rule 12(b)(6) motion to dismiss, a plaintiff must “‘nudge [ ]

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[his] claims across the line from conceivable to plausible.’” Schneider, 493 F.3d at 1177 (quoting
Twombly, 550 U.S. at 570). Thus, “the mere metaphysical possibility that some plaintiff could prove
some set of facts in support of the pleaded claims is insufficient; the complaint must give the court
reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these
claims.” Schneider, 493 F.3d at 1177.
The Tenth Circuit has interpreted “plausibility,” the term used by the Supreme Court in
Twombly, to “refer to the scope of the allegations in a complaint” rather than to mean “likely to be
true.” Robbins v. Okla. ex rel. Okla. Dep’t of Human Servs., 519 F.3d 1242, 1247 (10th Cir. 2008).
Thus, “if [allegations] are so general that they encompass a wide swath of conduct, much of it
innocent, then the plaintiffs have not nudged their claims across the line from conceivable to
plausible.” Id. (internal quotations omitted). “The allegations must be enough that, if assumed to
be true, the plaintiff plausibly (not just speculatively) has a claim for relief.” Id. “This requirement
of plausibility serves not only to weed out claims that do not (in the absence of additional
allegations) have a reasonable prospect of success, but also to inform the defendants of the actual
grounds of the claim against them.” Id. at 1248. In addition, the Tenth Circuit has stated that “the
degree of specificity necessary to establish plausibility and fair notice, and therefore the need to
include sufficient factual allegations, depends on context,” and that whether a defendant receives
fair notice “depends on the type of case.” Id.
III.

Contribution Claim
The right to contribution is set forth in Okla. Stat. tit. 12, § 832 (“Section 832”), which

provides:
A.

When two or more persons become jointly or severally liable in tort for the
same injury to person or property or for the same wrongful death, there is a

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right of contribution among them even though judgment has not been
recovered against all or any of them except as provided in this section.
B.

The right of contribution exists only in favor of a tort-feasor who has paid
more than their pro rata share of the common liability, and the total recovery
is limited to the amount paid by the tort-feasor in excess of their pro rata
share. No tort-feasor is compelled to make contribution beyond their pro rata
share of the entire liability.

C.

There is no right of contribution in favor of any tort-feasor who has
intentionally caused or contributed to the injury or wrongful death.

D.

A tort-feasor who enters into a settlement with a claimant is not entitled to
recover contribution from another tort-feasor whose liability for the injury or
wrongful death is not extinguished by the settlement nor in respect to any
amount paid in a settlement which is in excess of what was reasonable.

E.

A liability insurer which by payment has discharged, in full or in part, the
liability of a tort-feasor and has thereby discharged in full its obligation as
insurer, is subrogated to the tort-feasor’s right of contribution to the extent
of the amount it has paid in excess of the tort-feasor’s pro rata share of the
common liability. This provision does not limit or impair any right of
subrogation arising from any other relationship.

F.

This act does not impair any right of indemnity under existing law. When one
tort-feasor is entitled to indemnity from another, the right of the indemnity
obligee is for indemnity and not contribution, and the indemnity obligor is
not entitled to contribution from the obligee for any portion of the indemnity
obligation.

G.

This act shall not apply to breaches of trust or of other fiduciary obligation.

H.

When a release, covenant not to sue, or a similar agreement is given in good
faith to one of two or more persons liable in tort for the same injury or the
same wrongful death:
1.

It does not discharge any other tort-feasor from liability for the injury
or wrongful death unless the other tort-feasor is specifically named;
but it reduces the claim against others to the extent of any amount
stipulated by the release or the covenant, or in the amount of the
consideration paid for it, whichever is greater; and

2.

It discharges the tort-feasor to whom it is given from all liability for
contribution to any other tort-feasor.

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Defendants argue that Amica’s contribution claim fails under Rule 12(b)(6) because there
is no “common liability” among Amica and Defendants to make them joint tortfeasors. (Mot. to
Dismiss 6.)

Specifically, Defendants maintain they cannot be a joint tortfeasor with Amica

because there is no contractual or special relationship between Mrs. Cantrell and Defendants that
would create a duty to Mrs. Cantrell on the part of Defendants. In response to this argument, Amica
contends that Defendants owed a duty to Mrs. Cantrell because it was reasonably foreseeable that
Mrs. Cantrell would be harmed by Defendants’ actions. Amica does not provide, nor could the
Court find, any case explicitly finding a duty to an insured by the attorneys of the insured’s
insurance company in conjunction with the preparation of a coverage opinion or the defense of a bad
faith suit brought by the insured. Instead, Amica cites to various cases which it contends
demonstrate a “trend in Oklahoma law to recognize a duty of care to an insured by persons/entities
other than the insurer.” (Resp. to Mot. to Dismiss 5.)
The Court is unwilling to find that Defendants owed a duty to Mrs. Cantrell based on the
“trend” cited by Amica, see Wofford v. E. State Hosp., 795 P.2d 516, 521 (Okla. 1990) (noting that
the existence of a duty is a question of law for the court), as the cases cited by Amica in support of
such a “trend” are distinguishable from the instant case. (See Resp. to Mot. to Dismiss 5-11 (relying
on Brown v. State Farm Fire and Cas. Co., 58 P.3d 217 (Okla. Civ. App. 2002), Stroud v. Arthur
Anderson & Co., 37 P.3d 783 (Okla. 2001), and North Am. Specialty Insur. Co. v. Britt Paulk
Agency, Inc., 511 F. Supp. 2d 1099 (E.D. Okla. 2007) to demonstrate said “trend”).) For example,
in Brown, the Oklahoma Court of Civil Appeals held that an insurance investigator, hired by an
insurance company to investigate the cause of a fire at the insured’s property, had a duty to the
insured to conduct a fair and reasonable investigation. See Brown, 58 P.3d at 223. The court

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therefore reversed the lower court’s dismissal of the insured’s negligence claim against the
investigator, finding that the insured could bring a negligence claim based on the existence of such
a duty. Although Brown generally suggests that not only the insurance company has a duty of care
to its insured, the precise relationship at issue in this case – namely, that between the insured and
the attorneys hired by the insurance company to write a coverage opinion and defend the insurance
company against a bad faith suit by the insured – was simply not involved in Brown. The Court
finds that the relationship between an insured and an insurance investigator is not similar enough
to that between an insured and the attorneys representing the insured’s insurance company so as to
require expansion of Brown to the facts of the instant case. Similarly, the relationships involved
Stroud and Britt Paulk are also of a different nature than that presented here. See Britt Paulk, 511
F. Supp. 2d at 1105 (permitting contribution claim brought by insurance company against insurance
agents in conjunction with insurance company’s settlement of bad faith claim); Stroud, 37 P.3d at
794 (holding that an independent auditor’s duty of care in auditing a client’s financial statements
extends to persons other than the audit client where those third parties were foreseeable and it was
known that they would rely on the agent’s professional services).
In sum, Amica fails to provide authority for what would essentially amount to a new cause
of action against attorneys representing insurance companies, and the Court is unpersuaded that the
“trend” cited by Amica results in a duty on behalf of Defendants to Mrs. Cantrell. Therefore,
because the Court fails to find such a duty, and because Amica has not asserted any other basis of

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liability against Defendants, Defendants cannot be joint tortfeasors under Section 832, mandating
dismissal of Amica’s contribution claim.2
IV.

Professional Negligence/Legal Malpractice Claim
Defendants argue that Amica’s professional negligence/legal malpractice claim (“negligence

claim”) is barred pursuant to the doctrine of in pari delicto. As stated in Tillman v. Shofner, 90 P.3d
582, 584 (Okla. Civ. App. 2004):
The defense of in pari delicto has been recognized in Oklahoma. The Oklahoma
Supreme Court has referred to the general and universal rule “that where parties to
an immoral or illegal transaction are in pari delicto with each other, each is estopped,
as to the other, to take advantage of recovering damages for injuries sustained as a
consequence of their joint wrong. . . . And as between parties in pari delicto the law
will aid neither, but will leave them as it finds them.”
(citing Bowlan v. Lunsford, 54 P.2d 666, 668 (Okla. 1936)). The basis of the in pari delicto doctrine
is that “the law will not lend its aid to a transaction in violation of law, and particularly to a
participant, [as] no one knowingly participating in a transaction intended to accomplish a purpose
forbidden by law can bring an action for any cause directly connected with that illegality.” Tillman,
90 P.3d at 584-85 (citing Brinley v. Williams, 114 P.2d 463, 464-65 (Okla. 1941)).
Defendants argue that the in pari delicto applies in the instant case because “Amica violated
its statutory duties to its insured by ignoring a claim and hoping that the client would not press the
matter.” (Mot. to Dismiss 17; see id. 8-9 (citing Okla. Stat. tit. 36 § 3629 (requiring insurer to
submit written offer of settlement or rejection of claim to insured within ninety (90) days of receipt

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Defendants also argue that Amica’s contribution claim fails because there is no right of
contribution for a bad faith claim, there is no right of contribution for breach of a fiduciary
obligation, and settlement bars Amica’s contribution claim in this case. Because the Court agrees
with Defendants that there is no common liability under Section 832, it need not address these
arguments.

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of proof of loss); Okla. Stat. tit. 36 § 1250.4(C) (requiring insurer to provide “adequate response”
to claimant within thirty (30) days of receipt of written communication); Okla. Stat. tit. 36 § 1250.6
(requiring insurer to acknowledge receipt of notification of claim within thirty (30) days); Okla. Stat.
tit. 36 § 1250.7 (setting forth requirements for insurer in denying or accepting a claim)).) In support
of this position, Defendants cite various cases where a plaintiff was unable to recover on a legal
malpractice claim because they were in pari delicto with the attorney defendant. (See id. 15-17
(citing, inter alia, Heyman v. Gable, Gotwals, Mache, Schwabe, Kihle & Gaberino, 994 P.2d 92
(Okla. 1999) and Tillman v. Shofner, 90 P.3d 582 (Okla. Civ. App. 2004)).
These cases are easily distinguishable from the instant matter, however, as the fault of the
plaintiffs in those cases was clearly established. For example, in Tillman, the plaintiff’s professional
negligence claim was barred pursuant to in pari delicto when both the plaintiff and the attorney had
pled guilty to criminal conspiracy to defraud the Internal Revenue Service and the United States
Bankruptcy Court. See Tillman, 90 P.3d at 585. Further, in Heyman, the plaintiffs’ legal
malpractice claim was barred by in pari delicto after they had a verdict of fraud entered against
them. The Oklahoma Court of Civil Appeals held that “[i]t would be contrary to public policy to
allow [plaintiffs] to benefit from their own confirmed fraud and recover a monetary judgment from
[their attorneys] to indemnify them for their fraud.” Heyman, 994 P.2d at 94. In this case, however,
Amica’s degree of fault, if any, has not been established. The underlying suit was settled, and
although Judge Eagan denied Amica’s motion for summary judgment, such a denial does not amount
to a finding of fault or liability on the part of Amica. Further, contrary to Defendants’ assertion,
there is nothing in the First Amended Complaint conclusively establishing Amica’s degree of fault
or violation of the statutes cited by Defendants in their motion. There is accordingly no basis for

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this Court to dismiss Amica’s negligence claim on the basis that Amica “knowingly participat[ed]
in a transaction intended to accomplish a purpose forbidden by law.” Tillman, 90 P.3d at 584-85.
V.

Indemnity Claim
Amica contends that “in the event [Amica] and Defendants are deemed or found to have not

been joint tortfeasors for purposes of [Section 832],” it is entitled to “common-law, implied
indemnity from Defendants.” (First Am. Compl. ¶ 35.) In support of such claim, Amica alleges:
(1) “Defendants’ actions, inactions, and advice with regard to the Cantrell claim were negligent or
otherwise improper and erroneous,” (id. ¶ 36); (2) “Defendants’ actions, inactions, and advice with
regard to the Cantrell claim were legally imputed to Plaintiff,” (id. ¶ 37); (3) “[d]ue to Defendants’
actions, inactions and advice, [Amica] was constructively liable to Cantrell for bad faith damages,”
(id. ¶ 38); (4) “[Amica] was potentially and/or actually liable to Cantrell for both coverage and bad
faith damages,” (id. ¶ 39); (5) the settlement between Amica and Mrs. Cantrell was “reasonable in
both fact and amount,” (id. ¶ 40); (6) “[b]ut for the actions, inactions, and advice of Defendants, the
amount of settlement would have been significantly less than the amount ultimately paid,” (id.); and
(6) Amica’s settlement with Mrs. Cantrell “extinguished any liability Defendants may have had to
Cantrell,” (id. ¶ 42).
“A right to implied indemnity may arise out of a contractual or a special relationship between
parties and from equitable considerations.” See Daugherty v. Farmers Coop. Ass’n, 790 P.2d 1118,
1120 (Okla. Civ. App. 1989). “In the case of implied or noncontractual indemnity, the right rests
upon fault of another which has been imputed or constructively fastened upon he who seeks
indemnity.” Id. (internal citations and quotations omitted); see Braden v. Hendricks, 695 P.2d 1343,
1349 (Okla. 1985) (stating that Oklahoma “recognize[s] a right of indemnity when one – who was

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only constructively liable to the injured party and was in no manner responsible for the harm – is
compelled to pay damages because of the tortious act by another”).

Therefore, “to seek

indemnification, a party cannot have been actively at fault.” In re Cooper Mfg. Co., 131 F. Supp.
2d 1238, 1248 (N.D. Okla. 2001) (citing Travelers Ins. v. L.V. French Truck Serv., 770 P.2d 551,
555 n. 16 (Okla. 1988) and Porter v. Norton-Stuart Pontiac-Cadillac of Enid, 405 P.2d 109, 111
(Okla. 1965)). Further, the Tenth Circuit has clarified that in order for a party to recover
indemnification, the indemnifying defendant need not be directly liable to the injured party. See In
re Cooper Mfg. Co., No. 98-0580, 1999 WL 360173, at *2 (10th Cir. June 4, 1999) (reversing
district court’s holding that insurance company could not seek indemnity against its agent because
it could not prove that agent was directly liable to insured); In re Cooper Mfg. Co., 131 F. Supp. 2d
at 1246 (discussing Tenth Circuit’s holding in In re Cooper Mfg., 1999 WL 360173) (“The Tenth
Circuit held that in order to recover indemnification, an indemnitee [n]eed not establish direct
liability between the indemnitor [a]nd the party to whom the indemnitee [w]as liable[.] According
to the Tenth Circuit, an indemnitee [m]ay seek indemnification by establishing that the indemnitor’s
[a]cts directly caused the indemnitee [t]o become liable to a third party[.]”).
Defendants move to dismiss Amica’s indemnification claim because they contend that Amica
“admit[s] to being at least partially at fault.” (Mot. to Dismiss 12 (citing statement of law that a
party seeking implied indemnification cannot have been actively at fault).) In support of this
argument, Defendants cite to Paragraph 41 of the First Amended Complaint as an admission of fault
by Amica. Specifically, Paragraph 41 of the First Amended Complaint states:
Pursuant to In re Cooper Manufacturing, 131 F. Supp. 2d 1238 (N.D. Okla. 2001),
[Amica] does not seek from Defendants . . . all amounts paid to settle the bad faith
claim. Rather, [Amica] seeks to carve out any bad faith damages which are found
to be attributable to its own conduct, and seeks to hold Defendants responsible only

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for those damages caused by their own negligent or otherwise improper advice,
actions, and instructions.
Amica responds by also citing Paragraph 41 and argues that because it is seeking partial
indemnification therein, as was permitted in In re Cooper Manufacturing, 131 F. Supp. 2d 1238, its
claim is not subject to dismissal.
After review of the First Amended Complaint and In re Cooper Manufacturing, 131 F. Supp.
2d 1238, the Court agrees with Amica. First, the Court does not find that Paragraph 41 of the First
Amended Complaint demonstrates an admission of active fault, as argued by Defendants. Paragraph
41 instead seeks to carve out any damages “which are found to be attributable” to Amica’s conduct,
therefore presumably leaving determination of Amica’s fault, if any, to the jury. (First Am. Compl.
¶ 41.) Further, as noted by Amica, a court in this district has previously permitted the issue of partial
indemnification to go to a jury in In re Cooper Manufacturing, 131 F. Supp. 2d 1238. Specifically,
In re Cooper Manufacturing involved an indemnification claim by an insurance company against
its agent in conjunction with a settlement paid by the insurance company to its insured for the
insured’s bad faith claim. The agent moved for summary judgment on the indemnification claim,
arguing that the insurance company was directly at fault for the conduct underlying the insured’s
bad faith claim and was therefore barred from making a claim for indemnity. In response, the
insurance company clarified that, similar to Amica’s claim in this case, it was not seeking
indemnification of the entire $7.5 million it had paid in settlement, but was instead seeking
indemnification for only that portion of the settlement that was not attributable to its own conduct.
The court denied summary judgment on the indemnification claim, noting that the ultimate
apportionment of the $7.5 million would be a question for the jury. Id. at 1249. Further, the verdict
form tasked the jury with apportioning the settlement amount within the indemnification claim. (See

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Doc. 643 in Case No. 94-CV-901-H) (requesting jury to write in portion of underlying settlement
that insurance company could recover from agent based on indemnity).)
Defendants have failed to provide any argument regarding In re Cooper Manufacturing in
their reply brief and have not provided any case law suggesting that the type of apportionment in
In re Cooper Manufacturing was in error. Without such argument or authority, and given the
similarities between the indemnity claims in In re Cooper Manufacturing and this case, the Court
denies Defendants’ motion to dismiss Amica’s indemnity claim.
VI.

Conclusion
For the reasons stated herein, Defendants’ Motion to Dismiss (Doc. 17) is GRANTED IN

PART and DENIED IN PART. Specifically, the Motion to Dismiss is granted as to Amica’s
contribution claim and denied as to Amica’s professional negligence/legal malpractice and
indemnification claims.

IT IS SO ORDERED THIS 28th day of July, 2011.

________________________________________
TERENCE C. KERN
UNITED STATES DISTRICT JUDGE

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