Athridge v. Aetna Cas. And Sur. Co

• Decision Date: 14 May 2010
• Citation: 604 F.3d 625
• Parties: Thomas P. ATHRIDGE, Sr. and Thomas P. Athridge, Jr., Appellantsv.AETNA CASUALTY AND SURETY CO., Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

604 F.3d 625

Thomas P. ATHRIDGE, Sr. and Thomas P. Athridge, Jr., Appellantsv.AETNA CASUALTY AND SURETY CO., Appellee.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 16, 2009.

Decided May 14, 2010.

COPYRIGHT MATERIAL OMITTED

Appeal from the United States District Court for the District of Columbia (No. 1:96-cv-02708).

Erik S. Jaffe argued the cause and filed the briefs for appellants.

Steven M. Klepper argued the cause for appellee. With him on the brief was Geoffrey H. Genth.

Before: ROGERS, GARLAND and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge:

Tommy Athridge and his father have spent more than a decade trying to collect the judgment entered against the driver responsible for an accident that severely injured Athridge. In this diversity action, the Athridges seek to recover from the driver's insurer, Aetna Casualty and Surety Company. The Athridges appeal a jury verdict that absolved Aetna of liability under its policy as well as a grant of summary judgment in favor of Aetna on the Athridges' alternative theories of liability. We affirm.

I.

On July 29, 1987, Jorge Iglesias, then 16, went to the house of his cousins, Francisco and Hilda Rivas, who were out of town. Entering their house through an open window, Iglesias found the keys to the Rivases' car and took it for a drive. What began as a joyride ended in tragedy when Iglesias struck and seriously injured his friend Tommy Athridge, who was on foot and became the victim in a game of “chicken” gone awry. We have described the details of the accident elsewhere. See Athridge v. Rivas, 141 F.3d 357, 359 (D.C.Cir.1998).

This lawsuit is one thread in the web of litigation spun from that unfortunate event. Its premise is simple enough. The Athridges won a $5.5 million judgment against Iglesias in a previous lawsuit. He never paid. In an attempt to collect the judgment, the Athridges brought this suit against Aetna, Iglesias's insurer. This is the second time some part of this suit has come before us. In the previous appeal, we partially reversed a grant of summary judgment in favor of Aetna and explained that Aetna's liability turned on the applicability of a policy exclusion that barred coverage for any person using a vehicle without a reasonable belief that he is entitled to do so. See Athridge v. Aetna Cas. & Sur. Co. (Aetna I), 351 F.3d 1166, 1172 (D.C.Cir.2003). Because Iglesias's state of mind at the time of the accident presented a disputed question of material fact, we remanded the case for further proceedings. Id. at 1172, 1177. On remand, Aetna prevailed when a jury concluded that Iglesias lacked a reasonable belief that he was entitled to drive the Rivases' car. The Athridges appeal the jury verdict, asserting that various procedural and evidentiary errors at trial require reversal.

This appeal encompasses more than that verdict, however. On remand, the Athridges renewed two alternative theories of liability they had raised, but the district court declined to address, prior to Aetna I. These theories spring from Aetna's participation in the Athridges' original lawsuit against Iglesias-the case in which the Athridges won the $5.5 million judgment. See Athridge v. Iglesias, 950 F.Supp. 1187, 1194 (D.D.C.1996).

For that trial, Iglesias retained his own lawyer, Irving Starr, to defend him. A few days before the start of trial, Starr ran into Paul Pearson, a lawyer Aetna had retained in a previous matter related to the accident. Starr asked for Pearson's help in the impending trial, and Pearson agreed. Starr made no offer to pay Pearson, knowing Iglesias could not afford another lawyer, and when Pearson agreed to help, Starr assumed he would do so for free. Unbeknownst to Starr, Pearson then went to Aetna and persuaded it to pay him to help Starr on the strength of his argument that securing a verdict for Iglesias in this matter would be in the insurer's interest. Pearson entered an appearance for Iglesias on the second day of trial, but only after Iglesias and Starr had signed a handwritten document acknowledging that Pearson's assistance in no way indicated that Aetna was forfeiting its right to disclaim coverage for the accident. Pearson participated actively in Iglesias's defense and withdrew only after Aetna told him, while the appeal was pending, that it would no longer pay him to help Iglesias.

On remand from Aetna I, the Athridges maintained that Pearson's involvement at Iglesias's trial created liability for Aetna apart from whether the policy covered the accident. First, they argued that Aetna was estopped from denying coverage because it had participated in Iglesias's legal defense. Second, they claimed that, under its policy, Aetna's participation triggered an obligation to pay postjudgment interest on the award against Iglesias, even in the absence of any duty to pay on the underlying judgment.

The magistrate judge turned to these alternative theories of liability after conducting the jury trial on Iglesias's state of mind and entered summary judgment for Aetna on both. He rejected the estoppel claim because the Athridges presented no evidence that Aetna controlled or prejudiced Iglesias's defense in any way. Athridge v. Aetna Cas. & Sur. Co., 510 F.Supp.2d 1, 7-8 (D.D.C.2007). He was also unpersuaded by the argument that Aetna was required to pay postjudgment interest, finding no such duty when the insurer had no liability for the underlying judgment. Id. at 3-5. The Athridges appeal both decisions.

This court has jurisdiction to hear the Athridges' appeal pursuant to 28 U.S.C. §§ 636(c)(3) and 1291 (2006). In Part II, we review the entry of summary judgment in Aetna's favor. In Part III we address the challenges to the jury verdict. Because this is a diversity action, we apply the substantive law of the District of Columbia. See Messina v. Nationwide Mut. Ins. Co., 998 F.2d 2, 4 (D.C.Cir.1993).

II.

At the outset, Aetna maintains that the Athridges forfeited their theories of liability arising from Aetna's participation in Iglesias's defense by failing to raise them in Aetna I. The Athridges counter that they were not obliged to make arguments the district court had failed to address. Not to be outdone, the Athridges also reply that Aetna forfeited its forfeiture argument by failing to raise it in a timely fashion in the district court on remand following Aetna I. We need not resolve these dueling claims of forfeiture. We assume for the purposes of our analysis that the Athridges have preserved these issues and nevertheless affirm the grant of summary judgment in Aetna's favor. See, e.g., Tax Analysts v. I.R.S., 495 F.3d 676, 680 (D.C.Cir.2007).

We review a grant of summary judgment de novo. See, e.g., Woodruff v. Peters, 482 F.3d 521, 526 (D.C.Cir.2007). Summary judgment is appropriate if “there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). “In reviewing a grant of summary judgment, we must ‘view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor.’ ” Woodruff, 482 F.3d at 526 (quoting Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 850 (D.C.Cir.2006)).

A.

The Athridges maintain that Aetna is estopped from disclaiming coverage for the accident because it paid Pearson to assist in Iglesias's defense without a suitable reservation of its right to disclaim coverage. See Appellants' Br. at 15. But under District of Columbia law, an insurer may be estopped from denying coverage only if its participation somehow prejudiced the insured by undermining his ability to defend himself. See Diamond Serv. Co. v. Utica Mut. Ins. Co., 476 A.2d 648, 658 (1984). See generally In re Himmelfarb's Estate, 345 A.2d 477, 483 (D.C.1975) (“An essential element of estoppel is prejudice caused by detrimental reliance.”).

The Athridges contend that prejudice is not an element of estoppel, and point to Continental Casualty Co. v. Hartford Fire Insurance Co., 116 F.3d 932 (D.C.Cir.1997), in support. Continental involved an insurer that “waived the right” to raise the breach of a policy provision as a defense to coverage. Id. at 939 n. 8. The Continental court made no mention of prejudice, but that is of no help to the Athridges' argument because waiver of a policy breach is distinct from estoppel by defense:

Waiver is an act or course of conduct by the insurer which reasonably leads the insured to believe that [a] breach will not be enforced. Estoppel, on the other hand, generally results when an insurance company assumes the defense of an action [and] to prevail on this basis, the insured is required, in some jurisdictions, to show prejudice while in other jurisdictions prejudice will be presumed.

Diamond, 476 A.2d at 654 (citation omitted). Thus for the Athridges' estoppel claim to succeed, Pearson's participation must have somehow harmed Iglesias's defense.

Anticipating our conclusion that estoppel requires a showing of prejudice, the Athridges maintain that prejudice should be presumed in this case. This argument stands on firmer ground: An insured may be entitled to a rebuttable presumption of prejudice, depending on the amount of control the insurer exercised over the defense. See Nat'l Union Fire Ins. Co. of Pittsburgh v. Aetna Cas. & Sur. Co., 384 F.2d 316, 318 (D.C.Cir.1967); Diamond, 476 A.2d at 657-58. Assuming the Athridges were entitled to this presumption, summary judgment was still proper because Aetna rebutted the presumption with uncontroverted evidence that its participation did not harm Iglesias. Cf. Curtis v. Cuff, 537 A.2d 1072, 1075 (D.C.1987) (holding that where “uncontroverted” evidence rebuts a presumption that a defendant consented to the driver's use of his vehicle, the defendant is “entitled to judgment as a matter of law”). To begin with, Iglesias knew that Aetna would not indemnify him if he lost-the...