Continental Casualty Co. v. Wendt
| Decision Date | 07 March 2000 |
| Docket Number | No. 99-12520,99-12520 |
| Citation | 205 F.3d 1258 |
| Parties | (11th Cir. 2000) CONTINENTAL CASUALTY COMPANY, a foreign corporation Plaintiff-Appellee, v. BERNARD WENDT, Defendant-Appellant |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Appeal from the United States District Court for the Middle District of Florida
Before DUBINA and BLACK, Circuit Judges, and BECHTLE* Senior District Judge.
Defendant-Appellant Bernard Wendt appeals the district court's grant of summary judgment in favor of plaintiff-appellee Continental Casualty Company in a declaratory judgment action brought by Continental seeking a declaration of rights and obligations on insurance policy(ies) issued by Continental to Defendant Thomas P. Hall.
We affirm the district court's judgment based on its well-reasoned order filed on June 29, 1999, and attached hereto as an Appendix.
AFFIRMED.
APPENDIX
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
CONTINENTAL CASUALTY COMPANY, a foreign corporation, Plaintiff,
v.
Thomas P. HALL, P.A., Thomas P. Hall, individually, and Bernard Wendt, Defendants.
Case No. 97-323-CIV-OC-10B.
Plaintiff has brought this action for declaratory judgment to determine the applicability of the limits of a Lawyers Professional Liability Insurance Policy issued by the Plaintiff to Defendant, Thomas P. Hall. The case is now before the Court on the Plaintiff's Motion for Summary Judgment (Doc. 14). Defendant Wendt has filed his response (Doc. 17), and the motion is now ripe for decision. Upon due consideration, the Court has determined that the motion for summary judgment is due to be Granted.
The pleadings, affidavits, depositions, answers to interrogatories, and admissions on file, viewed in the light most favorable to the non-moving party, disclose the following details.
Plaintiff, Continental Casualty Company ("Continental"), issued two Lawyers Professional Liability policies to Defendants Thomas P. Hall, P.A. and Thomas P. Hall ("Hall"). See Exhs. 1 & 2 to Plaintiff's Motion for Summary Judgment (Doc. 14). The first policy was in effect from November 1, 1995 to November 1, 1996 ("the 1996 policy"). The second policy was in effect from November 1, 1996 to November 1, 1997 (the "1997 policy"). For all purposes relevant to this case, the two policies contained identical terms and provisions. Both policies had limits of liability of $100,000 per claim with a $300,000 aggregate. The limits available on both policies were diminished by attorneys fees and costs incurred in defense of any claims. See Affidavit of Nancy Pistilli Hurst, Exh. 5 to Plaintiff's Motion for Summary Judgment (Doc. 14).
From the Spring of 1994 through the Summer of 1995, Hall promoted the sale of notes issued by K.D. Trinh and also provided legal services regarding various aspects of the transactions. See Defendant's' Response to Plaintiff's Motion for Summary Judgment (Doc. 17, pg. 8). K.D. Trinh is a Canadian federal corporation, doing business in the state of Florida by selling promissory notes to investors through agents. One such agent was Bernard Wendt. See First Amended third-Party Complaint, Exh. 3, pg. 1 to Plaintiff's Motion for Summary Judgment (Doc. 14).
In 1996, Thomas Hall and Bernard Wendt, among others, were named as Defendants in a class action law suit, styled Edwin Cowan et al. V. K.D. Trinh Investments, Inc. ("the Cowan Litigation"). See Third Amended Complaint, Exh. 7 to Plaintiff's Motion for Summary Judgment (Doc. 14). The case, filed in the United States District Court for the Middle District of Florida, Fort Myers Division, was brought by individuals who had invested in K.D. Trinh Investments, Inc. Hall was sued for giving inaccurate legal advice, and for making false and misleading statements regarding the legality of K.D. Trinh Investments as securities. See Defendants' Response (Doc. 17, pg. 2). On April 10, 1996, during the 1996 policy period, Continental was notified of the claims brought against Hall. See Affidavit of Nancy Pistilli Hurst, Exh. 5 to Plaintiff's Motion for Summary Judgment (Doc. 14). Continental ultimately settled the claims in the Cowan litigation by payment of the total aggregate limit of liability available under the 1996 policy less fees and expenses. See Release of All Claims, Exh. 5.A to Plaintiff's Motion for Summary Judgment (Doc. 14). The settlement amounted to $295,000.00 plus any retainage not spent by Hall's counsel in monitoring the action and having the release approved. See id.
In August of 1997, during the period of the second policy, Bernard Wendt filed a Third Party Complaint against Hall in the case of Ed Lasky, et al. v. Bernard Wendt v. Thomas P. Hall, et al. (Case No. 97-520-CA) in the Fifth Judicial Circuit in and for Lake County, Florida ("the Wendt Litigation"). See Exhs. 3 & 4 to Plaintiff's Motion for Summary Judgment (Doc. 14). In the Wendt litigation, the complaint alleged that Wendt had sold over $1 million dollars worth of promissory notes to over 44 investors. See Exh. 3.A, 9 to Plaintiff's Motion for Summary Judgment (Doc. 14). The complaint claimed that K.D. Trinh was, in fact, a "fraudulent enterprise which sustained itself through its selling agents, including Wendt." See id. at 19. Wendt then filed the third party complaint against Hall claiming that Hall had made misrepresentations to him regarding the legality of such investments. See Exhs. 3 & 4 to Plaintiff's motion for summary judgment (Doc. 14).
Hall notified Continental of the Wendt litigation in August of 1997 and ultimately made a claim under the 1997 policy. See Second Amended Complaint (Doc. 21, 13). Continental now seeks declaratory judgment concerning its obligation to provide insurance to Hall for the second lawsuit-the Wendt litigation-filed during the 1997 policy period.
Section 1 of the 1997 policy issued to Hall provides as follows:
I.Coverage Agreements
* * * *
B.The wrongful act, [as insured above], must happen before the end of the policy term stated on the Declarations and claim therefor must first be made against you and reported to us during that policy term.
Any claim or claims arising out of the same or related wrongful acts, shall be considered first made during the policy term in which the earliest claim arising out of such wrongful acts was made.
Section III(a), entitled Limits of Liability, states that:
the limit of liability stated for "each claim" is the maximum we will pay for all claims and claim expenses arising out of, or in connection with, the same or related wrongful acts. All such claims whenever made, shall be considered first made during the policy term in which the earliest claim arising out of such claim and related wrongful acts was made, and all such claims shall be subject to the same limit of liability. This limit applies regardless of the number of you who are insured under this policy or the number of claims against you.
"Claim" is defined as "the receipt of a demand for money or services, naming you and alleging a wrongful act." See Insurance Contract, Exh. 2 to Plaintiff's Motion for Summary Judgment (Doc. 14).
Plaintiff commenced this action by the filing of a complaint (Doc .1) for declaratory judgment pursuant to 28 U.S.C. 2201 seeking a declaratory decree that "Continental has no duty to defend or indemnify Hall for the claims brought against him by Wendt" or alternatively, that "Continental's liability in this regard [is limited] to $100,000 [for] 'each claim.' " The Plaintiffs have amended the complaint twice. On September 28, 1998, Plaintiff filed a motion for summary judgment (Doc. 14) to which the Defendant Wendt has filed his response (Doc. 17).
Summary judgment is appropriate only when the court is satisfied that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R .Civ.P. 56(c). In applying this standard, the court must examine the pleadings, affidavits and other evidence in the record "in the light most favorable to the non-moving party." Samples on Behalf of Samples v. Atlanta, 846 F.2d 1328, 1330 (11th Cir.1988). The moving party bears the initial burden of establishing the nonexistence of a triable fact issue. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant is successful on this score, the burden of production shifts to the non-moving party who must then come forward with sufficient evidence of each and every element that he or she must prove. Rollins v. TechSouth, Inc., 833 F.2d 1525, 1528 (11th Cir.1987). The non-moving party may not simply rest on the pleadings, but must use affidavits, depositions, and answers to interrogatories or other evidence to demonstrate that a material fact issue remains to be tried. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.
Plaintiff alleges, in its motion for summary judgment, that, as a matter of law, the term "same or related" acts in the insurance policy is not ambiguous. See Plaintiff's Motion for Summary Judgment . The Plaintiff also argues that no material issues of fact remain as to whether Hall's conduct, which was the subject of the Cowan litigation, was the same or was related to his conduct which forms the basis of the Wendt litigation. See id. at 9.
The Defendant responds that the term "related" as used in the policy is ambiguous. See Defendant's Memorandum in Response to Plaintiff's Motion for Summary Judgment Furthermore, the Defendant argues that Hall's actions were not in fact "the same or related" in the two lawsuits. See id. at pgs. 6-7. The basis for this assertion is the Defendant's theory that "[a]ll of the acts or omissions by Hall constituted separate and distinct acts to individuals ... Hall's duty in each circumstance was distinct and different to each person who was affected...
To continue reading
Request your trial
-
Roberts v. Gordy
...Id."The moving party bears the initial burden of establishing the nonexistence of a triable fact issue." Continental Cas. Co. v. Wendt , 205 F.3d 1258, 1261 (11th Cir.2000) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). If the movant establishes th......
-
Worthington Fed. Bank v. Everest Nat'l Ins. Co.
...); see also Gregory v. Home Ins. Co., 876 F.2d 602, 606 (7th Cir.1989) (cited with approval in Bay Cities ); Continental Cas. Co. v. Wendt, 205 F.3d 1258, 1262–64 (11th Cir.2000) (applying Florida law). On the other hand, where there is a single discrete cause that is alleged to have result......
-
Everest Indem. Ins. Co. v. Jake's Fireworks, Inc.
...Bureau Mut. Ins. Co., Inc. v. Evans , 7 Kan.App.2d 60, 637 P.2d 491, 494 (1981) ).141 Id. (citation omitted).142 Cont'l Cas. Co. v. Wendt , 205 F.3d 1258, 1262 (11th Cir. 2000) (citing Webster's Third New International Dictionary (1981)).143 Doc. 63 at 16.144 Doc. 20-1 at 67.145 Id.146 Id.1......
-
Langdale Co. v. Nat'l Union Fire Ins. Co. of Pittsburgh
...v. MGIC Indem. Corp., 608 F.Supp. 383 (D.Haw.1985), aff'd in part, rev'd in part, 795 F.2d 1450 (9th Cir.1986) ; and Cont'l Cas. Co. v. Wendt, 205 F.3d 1258 (11th Cir.2000).48 Doc. No. 75, pp. 40–41.Langdale argues that pursuant to the wording of Endorsement 8 as well as the case law, "the ......