In This Issue:

• Unfair Trade Practices Exclusion Doesn't Cover Consumer Protection Suits
• California's Cumis Rule Comes to Nevada
• "Bargaining Leverage" Insufficient to Trigger Exclusion for Monetary or Financial Gain
• Fifth Circuit: Two Policy Exclusions Preclude Coverage for FCA Suit

Unfair Trade Practices Exclusion Doesn't Cover Consumer Protection Suits

Why it matters: An unfair trade practices clause did not bar coverage for a policyholder's subsidiary, an Illinois federal court ruled, ordering the insurer to provide coverage to the insured's $3 million policy maximum. The subsidiary was hit with eight class action lawsuits for allegedly enrolling consumers in monthly membership programs and charging a fee without consent in violation of various consumer protection laws. Although the insurer initially provided a defense, it drew the line at the eighth lawsuit and said it would not pay more than $1 million for defense costs. The parent company sued the insurer, which relied upon a policy exclusion for claims related to alleged unfair trade practices. But reading the exclusion as a whole, the court said it was intended to cover antitrust-related violations, not fraud-based consumer protection claims such as those found in the underlying complaints. At best, the provision was ambiguous and needed to be resolved in favor of the insured, the judge wrote, granting summary judgment for the policyholder.

Detailed discussion: Big Bridge Holdings, Inc. purchased a $3 million liability policy from Twin City Fire Insurance Company that covered its entire organization, including subsidiary Sempris LLC. Sempris sells membership programs that provide discounts at various restaurants and retailers.

During the policy period, Sempris was sued eight times in various federal courts across the country. The lawsuits alleged both state and federal law violations for enrolling consumers in fee-based monthly membership programs without the consent of the plaintiffs.

Twin City initially provided coverage for the lawsuits. But when the eighth complaint was filed, the insurer sent a letter stating that it was denying coverage for any losses exceeding $1 million. Big Bridge responded with a declaratory judgment suit arguing that Twin City breached its duty to defend and/or indemnify Sempris, and breached the terms of the policy by failing to provide coverage in the full amount.

The insurer filed a counterclaim, arguing that coverage for the lawsuits against Sempris was barred by Section V(A)(5) of the policy, an exclusion that stated Twin City would not pay for any claim "based upon, arising from, or in any way related to any actual or alleged: … (5) price fixing, restraint of trade, monopolization, unfair trade practices or any violation of the Federal Trade Commission Act, Sherman Antitrust Act, Clayton Act, or any similar law regulating antitrust, monopoly, price fixing, price discrimination, predatory pricing or restraint of trade activities; provided, however, this exclusion shall not apply to Defense Costs incurred to defend such allegations up to a maximum of the lesser of (i) the remaining amount of the applicable limit of liability listed on the Declarations or (ii) $1,000,000."

Considering cross motions for summary judgment and applying Minnesota law, U.S. District Court Judge Robert M. Dow, Jr. sided with Big Bridge.

The term "unfair trade practices" was not defined by the policy, but the insurer emphasized the broad prefatory language of the exclusion to advocate for an extensive reading of the provision.

While the court agreed that the prefatory language was indeed broad, it took a different approach. "In order to understand the scope of a contractual term, it is necessary to consider the context in which the term appears, reading the provision as a whole," Judge Dow wrote. Section V(A)(5) contained eight separate categories of claims excluded from coverage, ranging from price fixing and restraint of trade to violations of the Sherman Antitrust Act and the Clayton Act.

"Read as a whole, these eight categories are best described as relating to antitrust violations," the court said. "One need look no further than the catch-all exception to reach this conclusion, as that exclusion describes the prior seven exclusions (or at least the prior three) as laws 'regulating antitrust, monopoly, price fixing, price discrimination, predatory pricing or restraint of trade activities.'"

In contrast, the eight underlying lawsuits "are best described as fraud-based consumer protection claims alleging deceptive (not anti-competitive) business practices," the judge explained. "[I]t would be an odd bit of contract drafting to aim to incorporate consumer-protection and other fraud-based violations into an exclusion that self-identifies as relating to 'antitrust, monopoly, price fixing, price discrimination, predatory pricing [and] restraint of trade activities' without mentioning the words 'fraud' or 'consumer protection' at all."

The court also rejected Twin City's contention that the phrase "unfair trade practices" encompassed both consumer protection and antitrust claims, similar to the Federal Trade Commission Act, which has both a consumer protection and an antitrust component.

"While there is some appeal to this argument, the total absence of any mention of fraud-based or consumer-protection claims in Section V(A)(5), coupled with the plain-language categorization of these exceptions in the catch-all provision as anti-competitive in nature, counsel in favor of reading 'unfair trade practices' as referencing that term in the antitrust context," the court said.

At a minimum, Judge Dow wrote, the phrase "unfair trade practices" is ambiguous as used in the exclusion. "And in the insured-friendly state of Minnesota, '[a]ny ambiguity is resolved in favor of the insured, and the burden is on the insurer to prove that the claim clearly falls outside the coverage afforded by the policy,'" the court said, citing similar decisions from the Seventh Circuit Court of Appeals and a federal court in Oregon.

"The plain language of Section V(A)(5), read as a whole, excludes antitrust violations and other anti-competitive conduct," the judge concluded. "Any argument that the exclusion should be read broadly because certain antitrust laws mentioned in the exclusion (e.g., unfair trade practices and the FTC Act) have applications beyond the antitrust realm is unavailing. If the insurers wanted to include consumer-protection or consumer-fraud violations into the exclusion, they should have mentioned those well-known bodies of law expressly, not indirectly through a provision clearly aimed at antitrust laws."

To read the opinion in Big Bridge Holdings, Inc. v. Twin City Fire Insurance Co., click here.

California's Cumis Rule Comes to Nevada

Why it matters: Is California's Cumis rule applicable in Nevada? According to the Nevada Supreme Court, the answer is yes. The issue arose in the context of an insurer's refusal to provide independent counsel to an insured who allegedly injured other guests at a party. In the ensuing coverage litigation, a federal court judge in Nevada certified a question to the Nevada Supreme Court asking whether insurers must provide independent counsel for insureds à la San Diego Navy Federal Credit Union v. Cumis Insurance Society. The court answered in the affirmative: "We conclude that Nevada law requires an insurer to provide independent counsel for its insured when a conflict of interest arises between the insurer and the insured," the court wrote. "Nevada recognizes that the insurer and the insured are dual clients of insurer-appointed counsel. When the insured and the insurer have opposing legal interests, Nevada law requires insurers to fulfill their contractual duty to defend their insureds by allowing insureds to select their own independent counsel and paying for such representation." The rule is based in the state's ethics rules for attorneys, the court said, and a desire to avoid conflict of interest. Importantly, and worth noting, the unanimous court stated that insurers are obligated to provide independent counsel only when the legal interests of the insured and the insurer actually conflict and a reservation of rights letter does not create a per se conflict of interest.

Detailed discussion: Stephen Hansen was injured in an altercation with other guests while leaving a house party. As he was stopped at the gated exit of the residential subdivision, the car Hansen was riding in was rear-ended by Brad Aguilar. Hansen filed suit against Aguilar and other party guests in Nevada state court alleging negligence and various intentional torts.

Aguilar's insurer, State Farm Mutual Automobile Insurance Company, agreed to defend him under a reservation of rights. The letter specifically reserved the right to deny coverage for liability resulting from intentional acts and punitive damages.

The trial court granted summary judgment in favor of Hansen on the negligence claim after Aguilar admitted to negligently striking the other vehicle. Aguilar then agreed to a settlement with Hansen in which he assigned his rights against State Farm to Hansen.

Hansen sued State Farm in Nevada federal court, alleging that the insurer violated the state's Unfair Claims Practices Act, breached its contract with Aguilar, and breached the implied covenant of good faith and fair dealing. The federal court judge ruled that State Farm breached its contractual duty to defend Aguilar because it did not provide him with independent counsel of his choosing.

The insurance policy provided coverage only if Aguilar acted negligently, the judge noted, and did not cover intentional tortious acts. Therefore, the interests of Aguilar and State Farm were in conflict. Importing a California rule that originated in San Diego Navy Federal Credit Union v. Cumis Insurance Society, the judge said that an insurance company must provide independent counsel if its interests conflict with the insured's.

State Farm moved for reconsideration. The federal district court granted the motion and certified the issue to the Nevada Supreme Court.

The state's highest court began with Nevada's Rules of Professional Conduct for attorneys. RPC 1.7(a) states that "a lawyer shall not represent a client if the representation involves a concurrent conflict of interest." But when an insurer provides counsel to defend its insured, a conflict of interest may arise, the court said, "because the outcome of litigation may also decide the outcome of a coverage determination—a determination that may pit the insured's interests against the insurer's."

The result: the "insurer-provided lawyer will have a relationship with both the insured and the insurer, who each have legal interests opposing the other." California's Cumis rule solves this problem, requiring an insurer to satisfy its contractual duty to provide counsel by paying for counsel of the insured's choosing to avoid a conflict of interest resulting when an insurer reserves its rights to determine coverage.

What rule should apply in Nevada, the court wondered—the Cumis rule or some alternative?

Courts that have rejected the Cumis rule have not recognized the existence of a conflict of interest, instead reasoning that the sole client is the insured and counsel therefore owes a duty only to the insured, not the insurer. States that have adopted this line of thinking include Alaska, Connecticut, Hawaii, Tennessee, Virginia, and Washington.

"Nevada, in contrast, is a dual-representation state: Insurer-appointed counsel represents both the insurer and the insured," the Nevada Supreme Court said. "Because Nevada is a dual-representation state, counsel may not represent both the insurer and the insured when their interests conflict and no special exception applies. This suggests that the Cumis rule, where the insurer must satisfy its contractual duty to provide counsel by paying for counsel of the insured's choosing, is appropriate for Nevada."

Several amici representing the insurance industry proposed two alternative approaches in lieu of the Cumis rule. One, the primary client model, would have counsel switch from dual-client to single-client representation as soon as a conflict arises. But this rule would be "unworkable" in a dual-representation jurisdiction, the court said, particularly in light of RPC 1.9(a), which prohibits a lawyer who has formerly represented a client in a matter from representing a client "in the same or a substantially related matter."

The second proposal, the contract model, also failed to persuade the court. With this rule, the insurer would select an insured's counsel and contractually instruct him or her that only the insured is a client. A "legitimate question whether counsel can be truly independent" existed, the court said, because the lawyer is selected by and receives compensation from someone with legal interests opposed to the lawyer's client, in violation of the spirit of RPC 1.8(f).

"In sum, Nevada, like California, recognizes that the insurer and the insured are dual clients of insurer-appointed counsel," the court wrote. "Where the clients' interests conflict, the rules of professional conduct prevent the same lawyer from representing both clients. California's Cumis rule is well-adapted to this scenario. It requires insurers to fulfill their duty to defend by allowing insureds to select their own counsel and paying the reasonable costs for the independent counsel's representation."

The court next turned to the effect of a reservation of rights and whether it creates a per se conflict of interest. Jurisdictions are divided on the issue, with some—Alaska, Arizona, Maine, and Massachusetts—applying a per se rule that a reservation of rights creates a conflict of interest between the insured and insurer-appointed counsel, while others (California, Connecticut, Maryland, Minnesota, and Oklahoma) look to the facts of the case to determine whether an actual conflict exists.

Again following the lead of California, the Nevada Supreme Court determined that a case-by-case inquiry into whether a conflict of interest exists was the best approach. The standard for trial courts when deciding whether a conflict of interest exists looks to the state's ethics rules for attorneys, and for independent counsel to be required, "the conflict of interest must be significant, not merely theoretical, actual, not merely potential."

"Therefore, even when (1) there is a reservation of rights and (2) insurer-provided counsel has control over an issue in the case that will also decide the coverage issue, courts must still determine whether there is an actual conflict of interest," the Nevada Supreme Court wrote. "This means that there is no conflict if the reservation of rights is based on coverage issues that are only extrinsic or ancillary to the issues actually litigated in the underlying action."

This approach is the most compatible with Nevada law, the court concluded. "We have held that dual-representation is appropriate as long as there is 'no actual conflict,'" the court wrote. "Moreover, because the Cumis rule derives from rules of professional conduct, it follows that the appropriate standard is whether there is an actual conflict under RPC 1.7. Therefore, an insurer is obligated to provide independent counsel of the insured's choosing only when an actual conflict of interest exists. A reservation of rights does not create a per se interest."

To read the opinion in State Farm Mutual Automobile Insurance Co. v. Hansen, click here.

"Bargaining Leverage" Insufficient to Trigger Exclusion for Monetary or Financial Gain

Why it matters: Denying an insurer's request for reimbursement, a judge in Idaho ruled that findings in an underlying lawsuit that the policyholder obtained "bargaining leverage" were insufficient to trigger an exclusion for financial gain. The coverage dispute began with a competitor's lawsuit alleging a policyholder engaged in anticompetitive behavior by purchasing a new entity. The insured tendered defense to its insurer, which provided almost $8 million in defense costs. When the underlying suit concluded with a determination that the policyholder violated the Clayton Act and parallel state law, the insurer sought reimbursement pursuant to a policy exclusion prohibiting coverage for alleged monetary and financial gain of an insured, such as "profit, financial advantage, or remuneration." Rejecting the insurer's position, the court held that the added bargaining power did not fall within the scope of any of the three terms, all of which "pertain to various types of monetary or financial gain." There was no finding that the policyholder obtained any monetary or financial gain from its bargaining leverage, the court said, and the exclusion was not applicable.

Detailed discussion: With the purchase of Saltzer Group, Idaho-based St. Luke's Health System faced a competitor's lawsuit alleging violations of the Clayton Act and an ancillary Idaho law. A federal court judge held that St. Luke's violated both laws, a decision largely affirmed by the Ninth Circuit Court of Appeals.

Both opinions focused on the bargaining leverage that St. Luke's obtained by purchasing Saltzer, predicting that the leverage would result in higher prices in the future. Importantly for the subsequent coverage dispute, neither opinion included a finding that St. Luke's had actually used its bargaining leverage to obtain monetary or other financial gain.

St. Luke's tendered a claim to Allied World National Assurance Company for the cost of defending the lawsuit. The insurer agreed to pay subject to a reservation of rights and partially reimbursed the policyholder for almost $8 million in defense costs. But a few months later, Allied sent St. Luke's a letter denying coverage, refusing to pay any further defense costs, and demanding repayment of the $8 million.

Allied relied upon Exclusion A of the policy for its refusal. The provision barred coverage for any loss in connection with any claim "arising out of, based upon or attributable to the gaining of any profit or financial advantage or improper or illegal remuneration by [St. Luke's,] if a final judgment or adjudication establishes that [St. Luke's] was not legally entitled to such profit or advantage or that such remuneration was improper or illegal[.]"

St. Luke's filed suit arguing that Allied was in breach of the policy, while the insurer counterclaimed seeking to recover the monies it had paid. U.S. District Court Judge B. Lynn Winmill found the exclusion inapplicable, granting summary judgment in favor of the insured.

"In this case, the Court held that St. Luke's was not legally entitled to the bargaining leverage it obtained by purchasing Saltzer, and the Ninth Circuit affirmed that decision," he wrote. "The Court made no finding that St. Luke's used that bargaining leverage to actually obtain any monetary or financial gain. The Court did not award any damages or order St. Luke's to disgorge any profits or financial gain. Thus, there was no 'final judgment or adjudication' that St. Luke's 'was not legally entitled to such profit or advantage or that such remuneration was improper or illegal.'"

The language of the policy was clear, the court said. "Each of the three terms in Exclusion A—profit, financial advantage, improper/illegal remuneration—pertain to various types of monetary or financial gain," the judge wrote. "Yet there was no finding that St. Luke's obtained any monetary or financial gain from its bargaining leverage."

Judge Winmill proffered an analogy to explain the distinction. "Bargaining leverage is to financial advantage what education is to employment—a means to an end," he wrote. "Just as education is a means of obtaining employment, so is bargaining leverage a means of obtaining a financial advantage. Allied conflates the means with the ends. Just as the word education cannot be used interchangeably with the word employment, so too financial advantage is not interchangeable with bargaining leverage."

The court declined Allied's invitation to interpret "financial advantage" to include bargaining leverage. "Of course, it would have been easy for Allied as the drafter to define financial advantage to include bargaining leverage," the court said. "But it did not do so. Allied urges this Court to 'interpret' the term financial advantage to include bargaining leverage, but it is really asking the Court to add the definition that it failed to write into the policy. This Court cannot 'add words to … avoid liability.'"

Ruling in favor of St. Luke's, the court ordered Allied to reimburse all defense costs incurred by the insured prior to and during the appeal of the underlying litigation. In addition, the court held that Allied breached its duties to St. Luke's under the policy, that Exclusion A did not bar coverage for the claim, and Allied was not entitled to reimbursement of defense costs previously paid to the insured.

To read the decision in St. Luke's Health System v. Allied World National Assurance Company, click here.

Fifth Circuit: Two Policy Exclusions Preclude Coverage for FCA Suit

Why it matters: Two policy exclusions—one for violations of deceptive practices laws and another for predetermined level of fitness failures—operated to preclude coverage for a False Claims Act (FCA) suit against a shipbuilder, the Fifth Circuit Court of Appeals recently determined. The shipbuilder worked on a project to convert U.S. Coast Guard boats into larger vessels. When one of the ships demonstrated structural problems, a government investigation revealed all of the boats were unsound and the shipbuilder made misrepresentations about the strength of their hulls. The government filed suit alleging violations of the FCA as well as fraud, negligent misrepresentation, and unjust enrichment. The shipbuilders denied coverage and the Fifth Circuit agreed, holding that two exclusions barred coverage for the government's lawsuit: one for predetermined level of fitness failures (which took care of the unjust enrichment and negligent misrepresentation claims), while the violation of deceptive practices law exclusion eliminated coverage for the FCA and common-law fraud claims, the court said.

Detailed discussion: Bollinger Shipyards won a multimillion-dollar contract to upgrade eight U.S. Coast Guard 110-foot cutters to 123-foot craft as part of the Coast Guard's modernization program. In 2004, one of the vessels refitted by Bollinger suffered a structural casualty. An investigation by the Coast Guard found that all eight vessels were similarly deficient and unusable, despite efforts to remedy the hull strength.

The government filed an FCA suit against Bollinger. According to the complaint, when the Coast Guard expressed concern during the bidding and development stages about the ability of the boats' hulls to accommodate the extensions, the shipbuilder submitted a longitudinal strength analysis demonstrating that the boats would have more than the required strength. Bollinger did not disclose that revised calculations indicated the hull strength was not sufficient for the conversion, the government said.

Four claims were included in the lawsuit: two violations of the FCA, as well as counts alleging common-law fraud, negligent misrepresentation, and unjust enrichment. Trial is currently scheduled for April 2016.

Bollinger requested coverage for the government's lawsuit from its general maritime liability insurer XL Specialty Insurance Company and excess insurer Continental Insurance Company. XL responded with a reservation of rights letter and Bollinger continued to fund its own defense.

The policyholder then filed suit against both insurers alleging bad faith and breach of contract. A federal court judge in Louisiana granted summary judgment in favor of the insurers, and Bollinger appealed to the Fifth Circuit Court of Appeals.

XL proffered several exclusions that it argued applied to preclude coverage for the government's suit against Bollinger. The federal appellate panel found two of the exclusions prevented coverage: one for failures of predetermined level of fitness and a second prohibiting coverage for unfair or deceptive trade practices.

Exclusion 28 of the policy stated that coverage "shall not apply to … [t]he failure of your products to meet any predetermined level of fitness or performance and/or guarantee of such fitness or level of performance and/or any consequential loss arising therefrom."

Bollinger told the court that the exclusion was inapplicable because the government was seeking damages for the entire value of the vessels and not just the work product for which the shipbuilder was responsible. "This argument cannot succeed," the three-judge panel wrote. "Exclusion 28, by its own terms, exempts claims for damage not only to the insured's work product but also to things other than the insured's product."

The shipbuilder also contended that the underlying suit did not actually allege a failure to meet a predetermined level of fitness. Again, the court rejected the insured's argument. The underlying complaint pled that "Bollinger … was responsible for the … performance requirements" of the modified boats, the Fifth Circuit said, and referenced specific requirements such as "the required section modulus," a requirement to comply with American Bureau of Shipping standards, and a requirement to provide a hull strength analysis.

"[T]he complaint lays out straightforwardly that Bollinger failed to meet a requirement that the parties together determined in advance," the court said. "The [contract] required the vendor to submit a hull strength analysis, which states the required longitudinal strength that Bollinger's work failed to meet."

Exclusion 28 foreclosed coverage for the unjust enrichment and fraudulent misrepresentation claims, the court said. Turning to Exclusion 32, the panel found it precluded coverage for the remaining counts under the FCA and common-law fraud.

Absolving XL from coverage, Exclusion 32 stated: "e. Actual or alleged liability arising out of or incidental to any alleged violation(s) of any federal or state law regulating, controlling, and governing antitrust or the prohibition of monopolies, activities in restraint of trade, unfair methods of competition or deceptive acts and practices in trade and commerce, including, without limitation, the Sherman Act, the Clayton Act, the Robinson-Patman Act, the Federal Trade Commission Act and the Hart-Scott-Rodino Antitrust Improvements Act; or f. Actual or alleged liability arising out of or contributed by [Bollinger's] dishonesty or infidelity."

Although the shipbuilder conceded at the district court level that Exclusion 32 eliminated coverage, it changed position to qualify that provision "may" exempt the underlying claims. "Of course it does," the panel wrote. "[T]he FCA claims clearly fall under Exclusion 32.e. It is irrelevant that the FCA is not listed among the statutes excluded, since the FCA is a 'federal law … regulating … deceptive acts and practices in trade and commerce[.]'" Further, "the alleged FCA violation need not itself be 'deceptive.' The plain language of Exclusion 32.e embraces laws that regulate deceptive acts, not allegations of deceptive acts."

As for Continental, the panel affirmed summary judgment in the excess carrier's favor, as the policy provided coverage only for property damage and personal injury—not payment for false claims made to the government, as requested in the underlying FCA suit.

To read the decision in XL Specialty Insurance Co. v. Bollinger Shipyards, click here.