Arch Ins. Co. v. Sunset Fin. Servs., Inc.

• Decision Date: 29 September 2015
• Docket Number: WD 78337
• Citation: 475 S.W.3d 730
• Parties: Arch Insurance Company, Respondent, v. Sunset Financial Services, Inc., Appellant.
• Court: Missouri Court of Appeals

475 S.W.3d 730

Arch Insurance Company, Respondent,

v.Sunset Financial Services, Inc., Appellant.

WD 78337

Missouri Court of Appeals, Western District.

FILED: September 29, 2015

Motion for Rehearing and/or Transfer to Supreme Court Denied October 27, 2015

Application for Transfer Denied December 22, 2015

Laurence R. Tucker, Kansas City, MO; Wilbur L. Tomlinson, St. Louis, MO for Respondent.

Eric S. Johnson, Kansas City, MO for Appellant.

Before Division Three: Karen King Mitchell, Presiding Judge, Lisa White Hardwick and Anthony Rex Gabbert, Judges.

Lisa White Hardwick, Judge

The circuit court granted summary judgment in favor of Arch Insurance Company ("Arch") based on a determination that Arch had no duty to indemnify Sunset Financial Services ("SFS") for an arbitration award. On appeal, SFS contends the circuit court erred in finding that indemnity coverage was barred by an insurance policy exclusion. SFS also argues that the court erred in sua sponte granting Arch summary judgment on SFS's counterclaim for vexatious refusal to indemnify. For reasons explained herein, we find no error and affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

In early 2008, Theodore Davis, a 56–year–old disabled man, met with Joseph Schoonover of SFS to discuss making investments to supplement his disability income. Based on Schoonover's advice, Davis agreed to invest in certain Real Estate Investment Trusts ("REITs") from Behringer Harvard and KBS. Schoonover advised Davis that such investments would yield a 7% return.

By April 2012, both the Behringer Harvard and KBS REITs suspended distributions and limited the ability of shareholders to redeem their investments. Davis began a series of complaints to SFS, Behringer Harvard, and KBS seeking redemption of his shares. Davis also lodged complaints with the Missouri Secretary of State, the Better Business Bureau, and the Securities and Exchange Commission about his inability to get his money back or a return on his investment.¹

Davis filed several arbitration claims against SFS arising out of Schoonover's recommendations, including: (1) breach of fiduciary duty; (2) common law fraud; (3) negligence; (4) failure to supervise; (5) violations of the Missouri Securities Act of 2003; and (6) violations of the Missouri Merchandising Practices Act. SFS tendered the arbitration proceeding to Arch, which had issued SFS an errors and omissions insurance policy. Arch defended SFS subject to full reservation of its right to deny indemnity coverage. The arbitrator issued an award in favor of Davis and against SFS.

Thereafter, Arch filed an action for a declaratory judgment seeking a ruling that it had no duty to indemnify SFS. SFS brought a counterclaim seeking damages for breach of contract and vexatious refusal to pay under Sections 375.296 and 375.420, RSMo,² as well as a declaratory judgment that Arch had a duty to indemnify SFS. Arch alleged that facts established during the arbitration indicated that a policy exclusion applied to bar coverage. Arch cited Exclusion N, which provided that the policy did not apply to any "Claim:"

... based upon, arising out of or in any way involving insolvency, receivership, conservatorship, liquidation, bankruptcy, inability or refusal to pay of any organization, entity or vehicle of any kind ... in which [SFS] has placed or recommended to be placed the funds of a client or account.

Arch argued that this exclusion was applicable because Davis only brought his claims against SFS due to the REITs' refusal to pay dividends or redeem his shares. Both parties filed motions for partial summary judgment regarding Arch's duty to indemnify.

The circuit court concluded that the circumstances surrounding Davis's claim against SFS "clearly demonstrate that the precipitating events giving rise to [the] complaints" were the two REITs' suspension of payments and severe limitation of Davis's ability to redeem his shares. Accordingly, the court was "compelled to determine" that Davis's claims were "clearly" within the policy exclusion's broad language. The court ruled that Arch had no duty to indemnify SFS. The court also sua sponte granted Arch summary judgment on SFS's counterclaim for vexatious refusal to pay based on its finding that Arch had no duty to indemnify SFS. SFS appeals.

STANDARD OF REVIEW

The propriety of summary judgment is an issue of law. Truck Ins. Exchange v. Prairie Framing, LLC., 162 S.W.3d 64, 79 (Mo.App.2005). Accordingly, we review the trial court's grant of summary judgment essentially de novo. id. We review the record in the light most favorable to the non-moving party, according it "the benefit of all reasonable inferences." ITT Commercial Fin. Corp. v. Mid–Am. Marine Supply Co., 854 S.W.2d 371, 376 (Mo. banc 1993). Nevertheless, if the non-moving party does not contradict the facts relied upon by the moving party in support of its motion, we regard those facts as true. Truck ins. Exchange, 162 S.W.3d at 79.

ANALYSIS

Duty to Indemnify

In Point I, SFS contends the circuit court erred in granting Arch's motion for summary judgment as to its duty to indemnify. SFS asserts that Exclusion N of the insurance policy does not apply to the claims against it for recommending unsuitable investments. SFS argues that because the underlying arbitration claim did not include a "single allegation" that the REITs were unable or refused to pay and because the arbitration award itself did not refer to such non-payment, Arch cannot show that the insolvency provision in Exclusion N bars coverage.

Interpretation of an insurance policy is an issue of law, subject to de novo review. Allen v. Continental W. Ins. Co., 436 S.W.3d 548, 553 (Mo. banc 2014). When construing the terms of a policy, we apply the meaning which would be attached by "an ordinary person of average understanding if purchasing insurance." Id. at 553–54 (citation omitted). We give the language of the policy its plain meaning. Id. at 554. If the language is ambiguous, we resolve the ambiguity against the insurer-drafter. Id. An ambiguity exists only when the language is reasonably susceptible to different constructions. Id. "Absent an ambiguity, however, Missouri appellate courts do not resort to canons of construction." Id. When the language is unambiguous, it must be enforced as written. Id.

SFS argues that the plain language of the policy makes clear that Exclusion N applies only to bar certain claims, and does not bar coverage for specific types of losses. SFS notes that the policy defines "loss" as "monetary judgments, awards or settlements that [SFS] is legally obligated to pay on account of a covered Claim ." Thus, SFS asserts that because Davis sought to recover a monetary judgment arising out of misrepresentations about unsuitable investments, this is a "loss" as defined by the policy, rather than a "claim." SFS concludes that because Exclusion N does not specifically mention "loss," the exclusion does not apply. In other words, SFS essentially argues that we are limited to considering the language of the Statement of Claim in the underlying arbitration in determining whether the exclusion applies. We disagree with SFS's interpretation.

"Claim" is defined under the policy as either "a written demand for monetary damages " or "an arbitration commenced by the filing of the statement of claim in which monetary damages are sought ." (Emphasis added). Damages are necessarily encompassed within a claim; if damages were not sought in the underlying action, the action would not constitute a "claim" under the policy. The damages for which Davis sought to recover were directly connected to the claim, which itself arose out of the REITs' refusal to pay. Moreover, the policy plainly contradicts SFS's assertion that we are limited to the language of Davis's complaint in determining the duty to indemnify because a claim is defined as "an arbitration" which is merely "commenced" by the filing of a Statement of Claim. In other words, if the "arbitration" arises out of or in any way involves the refusal to pay, the exclusion applies to bar coverage—the Statement of Claim is merely one aspect of the arbitration.

In determining whether Davis's claim involved a refusal to pay, we are guided by well-settled principles of Missouri law. An insurer's duty to defend and duty to indemnify are separate and distinct. Lumber Mut. Ins. Co. v. Reload, Inc., 113 S.W.3d 250, 253 (Mo.App.2003). "An insurer may have a duty to defend claims falling within the policy even if it may not ultimately be obligated to indemnify the insured." Id. The duty to defend arises from the potential liability to pay based on the facts as they appear at the outset of the case. McCormack Baron Mgmt. Servs., Inc. v. Am. Guarantee & Liab. Ins. Co., 989 S.W.2d 168, 170 (Mo. banc 1999). The duty to defend is determined by "comparing the language of the insurance policy with the allegations in the complaint." Id. By contrast, the duty to indemnify is determined by "the facts as they are established at trial or as they are finally determined by some other means." Id. at 173.

The facts established during the arbitration indicated that Davis's claims against SFS were based upon, arose out of, or at least "involved" the REITs' refusal to pay Davis. During opening statements, Davis's attorney explained that Davis wanted a safe investment, but that the REITs "stopped making payments at all." Davis testified that he "didn't start running into all these problems until [the REITs] stopped paying and [he] started finding out" that he could not redeem his investment. Moreover, Davis was asked about the G REIT, a similar investment he made based upon Schoonover's recommendation. Although the G REIT was of the same type of high-risk investment as the two REITs at issue here, Davis earned a good return on the G REIT and had no complaints regarding its suitability or Schoonover's recommendation.³

SFS argues that the present case is identical to Aks v. Southgate Trust Co., No....