Fireman's Fund Insurance v. TD Banknorth Insurance Agency Inc. , 534 F. App'x 15 ( 2013 )

10-797-cv
Fireman’s Fund Ins. Co. V. TD Banknorth Ins. Agency
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 13th day of August, two thousand thirteen.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 GUIDO CALABRESI,
9 ROBERT D. SACK,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 FIREMAN’S FUND INSURANCE COMPANY,
14 Plaintiff-Counter-Defendant-
15 Appellee,
16
17 -v.- 10-797-cv
18
19 TD BANKNORTH INSURANCE AGENCY
20 INCORPORATED, f/k/a MORSE, PAYSON &
21 NOYES INSURANCE,
22 Defendant-Counter-Claimant-
23 Appellant.
24 - - - - - - - - - - - - - - - - - - - -X
25
26 FOR APPELLANT: FREDERICK M. KLEIN (Robert M.
27 Sullivan, on the brief), The
28 Sullivan Law Group LLP, New
29 York, New York.
30
1 FOR APPELLEE: CHRISTOPHER B. WELDON (Darren P.
2 Renner, Debra M. Krebs, on the
3 brief), Keidel, Weldon &
4 Cunningham, LLP, New York, New
5 York.
6
7 Appeal from a judgment of the United States District
8 Court for the District of Connecticut (Droney, J.) .
9
10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11 AND DECREED that the judgment of the district court be
12 AFFIRMED.
13
14 In 2008, Appellant TD Banknorth Insurance Agency (“TD
15 Banknorth”) and Appellee Fireman’s Fund Insurance Company
16 (“Fireman’s Fund”) brought competing claims for declaratory
17 judgment as to ownership of certain settlement funds being
18 held in escrow. The dispute arose after a client sued TD
19 Banknorth for alleged errors and omissions, and TD Banknorth
20 sought coverage from its professional liability insurer,
21 Fireman’s Fund. TD Banknorth paid its deductible
22 ($150,000); and Fireman’s Fund contributed an additional
23 $204,000, thus settling these claims for a combined
24 $354,000.1 The parties later obtained a $208,000 settlement
25 of their own from two third parties and placed the amount in
26 escrow. TD Banknorth now seeks to recover the cost of its
27 deductible from these settlement proceeds, and Fireman’s
28 Fund seeks to cover its contribution, plus defense costs.
29 The facts are recited in detail in our 2011 opinion in this
30 case. See Fireman’s Fund Ins. Co. v. TD Banknorth Ins.
31 Agency Inc., 644 F.3d 166, 168 (2d Cir. 2011).
32
33 TD Banknorth relies principally on the “make whole”
34 doctrine, which provides that “the insurer may enforce its
35 subrogation rights only after the insured has been fully
36 compensated for all of its loss.” United States v. Lara,
37 No. 3:08–cr–00169(VLB), 2009 WL 3754069, at *2 (D. Conn.
38 Nov. 6, 2009) (citing Wasko v. Manella, 269 Conn. 527, 849
39 A.2d 777, 784 (2004)). On cross motions for summary
40 judgment, the United States District Court for the District
41 of Connecticut (Droney, J.) ruled, inter alia, that the make
1
These figures are rounded to the nearest thousand.
2
1 whole doctrine does not apply to reimbursement of an
2 insured’s deductible, and entered judgment for Fireman’s
3 Fund.2 See Fireman’s Fund Ins. Co. v. TD Banknorth Ins.
4 Agency Inc., 3:08-CV-364CFD, 2010 WL 420041, at *2 (D. Conn.
5 Feb. 1, 2010).
6
7 On appeal, we certified the following question to the
8 Connecticut Supreme Court: “Are insurance policy deductibles
9 subject to Connecticut’s make whole doctrine?” Fireman’s
10 Fund Ins. Co., 644 F.3d at 172-73. On July 30, 2013, the
11 Supreme Court confirmed that the make whole doctrine is the
12 default rule in Connecticut, and answered the certified
13 question in the negative:
14
15 [W]e find persuasive the analogy that the
16 deductible is, in effect, akin to “a primary layer
17 of self-insurance underlying the [liability
18 insurance] policy, which policy is, as a practical
19 matter, the equivalent of an excess policy . . . .
20 [W]hen there is a recovery, the ‘excess’ level of
21 insurance is entitled to recover before a lower
22 level of insurance/deductible can recover. . . .
23
24 Accordingly, we conclude that the equitable
25 considerations supporting the make whole doctrine
26 are inapplicable to deductibles. If we were to
27 decide otherwise, as TD Banknorth urges, we would
28 effectively disturb the contractual agreement into
29 which TD Banknorth and Fireman’s Fund entered,
30 thereby creating a windfall for TD Banknorth for a
31 loss that it did not see fit to insure against in
32 the first instance when it contracted for lower
33 premium payments in exchange for a deductible.
34
35 Fireman’s Fund Ins. Co. v. TD Banknorth Ins. Agency, Inc.,
36 309 Conn. 449, 468 (2013) (internal citations omitted).
37
2
In our 2011 opinion, we rejected the district court’s
alternative basis for its ruling--that the subrogation
clause in the parties’ insurance agreement abrogated
Connecticut’s make whole doctrine. See Fireman’s Fund Ins.
Co. v. TD Banknorth Ins. Agency Inc., 644 F.3d 166, 169-71
(2d Cir. 2011).
3
1 TD Banknorth therefore may not claim reimbursement for
2 the cost of its deductible until Fireman’s Fund has been
3 repaid in full. Because the expenses incurred by Fireman’s
4 Fund, including both damages and defense costs,3 exceed the
5 $208,000 of settlement funds being held in escrow, Fireman’s
6 Fund is entitled to the entire amount.
7
8 Accordingly, we hereby AFFIRM the judgment of the
9 district court.
10
11
12
13 FOR THE COURT:
14 CATHERINE O’HAGAN WOLFE, CLERK
15
16
17
3
Pursuant to the parties’ contract, the deductible
covers both damages and defense costs. A 67.
4