Ninth Circuit Leaves it to Policyholder to Pay Eddie Haskell’s Attorneys’ Fees

Carlton Fields
Contact

ken-osmond

Eddie: Well, look, there’s nothin’ to be so shook about. Lumpy’s insurance’ll take care of it.

Moral hazard lurks around the edges of many disputes about liability coverage. Everyone agrees in principle that insurance shouldn’t help bad actors benefit from their wrongdoing, but parties often clash over where the principle applies.  Some courts have addressed the problem by asking if the insured has suffered an insurable “loss.”  E.g., Ryerson Inc. v. Federal Ins. Co., 676 F.3d 610 (7th Cir. 2012) (“You can’t … sustain a ‘loss’ of something you … shouldn’t … have”). Increasingly, however, policies incorporate those courts’ reasoning into “return of remuneration” or “return of profitsexclusions, stating that there is no coverage for claims based on “profit, remuneration or advantage” to which the insured “was not legally entitled.” The advantage of such exclusions was recently illustrated in Screen Actors Guild-AFTRA v. Federal Ins. Co., No. 13-56402 (9th Cir. Jan. 15, 2016)—a case involving one of the most morally ambiguous figures that American culture has produced.

Gee, Mr. Union, You Look Real Prosperous Today

Under various intellectual property laws, foreign governments must pay “foreign levy funds” to actors in American films. Since 1996, the Screen Actors Guild (SAG) has collected those payments on behalf of its members. In September 2007, one member filed a class action for restitutionary relief, compensatory and punitive damages and attorneys’ fees in Superior Court in Los Angeles, alleging that SAG had held the foreign levy funds for an “unreasonably long period of time.” The actor in question was Ken Osmond. He is famous for personating Leave It To Beaver’s Eddie Haskell in the 1960s, but his range extended all the way to the role of Eddie Haskell Sr. in the 1997 reboot. (He did not, however, grow up to be Alice Cooper.)

The union tendered the suit to Federal under the Directors & Officers Liability and Entity Liability Coverage sections of its general liability policy. The insurer accepted the defense under a reservation of rights. SAG ultimately settled the case, agreeing to “use reasonable efforts” to allocate and pay 90% of the levy funds within three years. The Superior Court, in the course of approving the settlement, also awarded attorneys’ fees and costs in the amount of $315,000, as well as a $15,000 enhancement payment to Mr. Osmond.

SAG then looked to its insurer for reimbursement of the $330,000 award of fees and costs. Federal denied the claim, based on a return of profits exclusion, which stated that there was no coverage for claims

based upon, arising from, or in consequence of … [the Insured’s] having gained in fact any profit, remuneration or advantage to which such Insured was not legally entitled.

SAG filed an action for breach of contract and bad faith in a California state court. After the case was removed to the Central District of California, the parties cross-moved for summary judgment.

It’s Better To Lose Than To Give

Exclusions like the one cited by Federal are often invoked in cases that explicitly seek rescission or disgorgement as a remedy. In many such cases, the insurer reserves its rights during the underlying suit, then asserts the exclusion if the ultimate award appears to be restitutionary in nature. The defense therefore hinges on the nature of the remedy, but it is not always easy to establish that nature. Judge Posner, who wrote the opinion in Ryerson, supra, and who has repeatedly held that the return of ill-gotten gains does not constitute an insured “loss,” put it this way, in Schlueter v. Latek, 683 F.3d 350 (7th Cir. 2012):

Damages are measured by the plaintiff’s loss, restitution by the defendant’s gain. Often they’re equivalent … . But not always.

Even cases that turn on express return of profits exclusions can end up wrestling with this ambiguity. For example, in William Beaumont Hosp. v. Fed. Ins. Co., 552 F. App’x 494, 499 (6th Cir. 2014), a group of nurses alleged that the antitrust violations of the defendant hospitals had depressed the wages of members of the class.  When one of the insured defendants sought coverage for its settlement with the class, its insurer invoked a return of profits exclusion. In that case, however, the exclusion stated:

Solely with respect to any Claim based upon, arising from or in consequence of profit, remuneration or advantage to which an Insured was not legally entitled, the term Loss … shall not include disgorgement by any Insured or any amount reimbursed by any Insured Person.

Thus, even though the Sixth Circuit’s decision in favor of coverage is based on a discussion of what the insured had done, the real focus appears to be what happened to the money the class would receive:

[W]e find the hospital never gained possession of (or obtained or acquired) the nurses’ wages illicitly, unlawfully, or unjustly. Rather, according to the nurses’ complaint, Beaumont retained the due, but unpaid, wages unlawfully. This is not mere semantics. Retaining or withholding differs from obtaining or acquiring. The hospital could not have taken money from the nurses because it was never in their hands in the first place. While the hospital’s alleged actions are still illicit, there is no way for the hospital to give up its ill-gotten gains if they were never obtained from the nurses.

Screen Actors Guild differed from earlier cases, because, in that case, the insured never denied that the underlying suit sought funds that were “already due and owing to the members” of the class. Consequently, SAG did not seek indemnification for the amounts it agreed to pay out to class members. But it argued that the attorneys’ fees and enhancement payment awarded in the underlying action were in an entirely different category.  It based its argument on several details of its policy:

  • The insuring clause stated that Federal would pay “Loss” that SAG became legally obligated to pay on account of certain “Claims” for SAG’s “Wrongful Act”;
  • a “Claim” included a demand for “non-monetary” relief;
  • a “Wrongful Act” included any “error, … omission, neglect [or] breach of duty” by the union; and
  • the definition of “Loss” expressly included “Defense Costs.”

On the basis of these terms, the union asserted that the policy covered the award of attorneys’ fees, because that amount was not restitution, but it was “Loss (an amount in a judgment) which was paid in a covered Claim (a civil proceeding where there were allegations of Wrongful Acts).” Note that the subject of this argument is (as it was in cases like Ryerson and William Beaumont) the nature of the remedy awarded in the underlying action, rather than the nature of the conduct on which the action was based. Thus, although SAG acknowledged that a California appellate court had found there was no coverage for attorneys’ fees in Health Net, Inc. v. RLI Ins. Co., 206 Cal.App.4th 232, (Cal. Ct. App. 2012), it contended that Health Net was distinguishable—because the insuring clause in that case required the insurer to pay only those amounts the insured “bec[a]me legally obligated to pay as Damages …”

What Have You Done?

In rejecting SAG’s argument, the district court ignored the inquiry into whether the remedy awarded in the underlying suit had been a “Loss.” It even found that the fact “the Policy contains a ‘Loss’ definition … broader than the Health Net policy is irrelevant.” Instead, the court focused on the scope of the return of profits exclusion:  that is, whether the claims in Mr. Osmond’s case “ar[ose] from, or in consequence of … [the Insured’s] having gained in fact any profit, remuneration or advantage to which such Insured was not legally entitled.” Because it was undisputed that this was the nature of Mr. Osmond’s case, SAG was not entitled to coverage for any portion of the outcome:

[I]nsofar as SAG is and was … obligated to account for and distribute the foreign levy funds to the plaintiff class, SAG fails to establish that the $330,000 Award arises from a ‘covered’ Claim under the Policy.

On appeal the Ninth Circuit endorsed the district court’s conclusions, without directly commenting on the court’s approach:

SAG is not entitled to coverage based solely on a claim for attorney’s fees untethered to any insurable Loss. Under California law, a pre-existing obligation is not a covered loss. As SAG admittedly had a pre-existing obligation to pay the foreign levy funds to the state court plaintiffs, SAG’s failure to honor that obligation is not a covered Loss as a matter of law.  Accordingly, SAG is not entitled to coverage for the … attorney’s fees assessed against SAG …, because the award was based on the state court plaintiffs’ success in securing payment of the pre-existing obligation.

Although the language of this passage appears to restore the conventional emphasis on “loss,” the substance is consistent with the district court’s analysis: it clearly focuses on whether the underlying suit alleged conduct by the insured that fell within the scope of the return of profits exclusion.

“June, why are you defending that suit?”

There remains plenty of room for debate over how the traditional subjects of liability coverage can be distinguished from claims that the insured has “gained … profit, remuneration or advantage to which [it] was not legally entitled.” But focus on the language of return of profits exclusions is a more promising solution to the moral hazard problem than trying to identify cases of “disgorgement.” As insurers continue to refine the language of that exclusion, the reasonable expectations of both insurers and policyholders are more likely to be realized.

Image source: By It is unclear whether this was distributed by Osmond’s personal publicity agency or whether ABC Television had employed an agency to distribute the press materials. [Public domain], via Wikimedia Commons

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Carlton Fields | Attorney Advertising

Written by:

Carlton Fields
Contact
more
less

Carlton Fields on:

Readers' Choice 2017
Reporters on Deadline

Related Case Law

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.