521 F.3d 833 (8th Cir. 2008), 07-1916, Spirtas Co. v. Federal Ins. Co.

Docket Nº:07-1916.
Citation:521 F.3d 833
Party Name:SPIRTAS COMPANY, doing business as Spirtas Wrecking Company, Appellant, v. FEDERAL INSURANCE COMPANY, Appellee.
Case Date:April 01, 2008
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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521 F.3d 833 (8th Cir. 2008)

SPIRTAS COMPANY, doing business as Spirtas Wrecking Company, Appellant,

v.

FEDERAL INSURANCE COMPANY, Appellee.

No. 07-1916.

United States Court of Appeals, Eighth Circuit.

April 1, 2008

Submitted: December 13, 2007.

Appeal from the United States District Court for the Eastern District of Missouri.

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Timothy E. Hayes, argued, Thomas M. Payne III and Daniel R. Schramm, on the brief, St. Louis, MO, for appellant.

Jonathan Constine, argued, Doublas S. Cosno, Washington, DC. Gerlad P. Greiman, St Louis, MO, on the brief, for appellee.

Before BYE, ARNOLD, and MELLOY, Circuit Judges.

BYE, Circuit Judge.

Spirtas Company appeals the district court's 1 grant of summary judgment in favor of Federal Insurance Company, which insured Spirtas by virtue of directors and officers liability (D&O) policies it had sold and issued. The district court determined Federal had no obligation to defend or indemnify Spirtas in a lawsuit brought against it by MIG/Alberici LLC (MIG). We affirm.

I

The district court's decision contains a thorough discussion of the factual background. See Spirtas Co. v. Fed. Ins. Co., 481 F.Supp.2d 993, 994-96 (E.D. Mo. 2007). We provide an abbreviated version here.

Spirtas is a Missouri corporation in the business of demolishing structures. It was insured by Federal under D&O policies issued in Missouri which, as relevant, contained exclusions (hereinafter contract exclusions) precluding coverage for claims "based upon, arising from, or in consequence of any actual or alleged liability . . . under any written or oral contract or agreement, provided that this Exclusion[] shall not apply to the extent that an Insured Organization would have been liable in the absence of the contract or agreement."

Spirtas entered into a written subcontract agreement with MIG obligating Spirtas to serve as a demolition subcontractor on a project located in New Jersey. A dispute arose between MIG and Spirtas over Spirtas's performance of the subcontract. MIG sued Spirtas in Michigan state court. MIG's complaint contained five counts. One count alleged a breach of contract based upon Spirtas's failure to complete its work as required under the subcontract. One count was titled "Express or Implied Trust" and alleged an express trust relationship existed between MIG and Spirtas as a result of the subcontract and Spirtas breached its trust obligations by failing to pay other subcontractors, suppliers, and job creditors of the New Jersey project. Another count was for conversion and alleged Spirtas wrongfully converted funds MIG paid to Spirtas under the subcontract by refusing to pay other subcontractors, suppliers, and job

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creditors. Another count was for unjust enrichment and alleged Spirtas would be unjustly enriched if allowed to...

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