Protection Strategies, Inc. v. Starr Indemnity & Liability Co. , 611 F. App'x 775 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1972
PROTECTION STRATEGIES, INC.,
Plaintiff - Appellant,
v.
STARR INDEMNITY & LIABILITY CO.,
Defendant - Appellee,
v.
JOSEPH RICHARDS; DAVID LUX; DAVID SANBORN; KEITH HEDMAN,
Third Party Defendants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:13-cv-00763-LO-IDD)
Submitted: April 30, 2015 Decided: May 27, 2015
Before KEENAN, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John A. Gibbons, DICKSTEIN SHAPIRO LLP, Washington, D.C., for
Appellant. Cara Tseng Duffield, Mary Catherine Martin, WILEY
REIN LLP, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Protection Strategies, Incorporated, (PSI) appeals the
district court’s order granting Starr Indemnity & Liability
Company (Starr)’s Fed. R. Civ. P. 59(e) motion to alter or amend
the court’s prior order granting Starr summary judgment in PSI’s
civil action. We conclude that PSI fails to establish
reversible error in the district court’s judgment and affirm.
In 2012, PSI and its officers were the subjects of criminal
and civil investigations relative to the Small Business
Administration’s Section 8(a) program, a program designed to aid
businesses owned by certain socioeconomic groups in accessing
the federal procurement market. In 2013, PSI’s former chief
executive officer, former chief financial officer, former vice
president, and former president pled guilty in the United States
District Court for the Eastern District of Virginia to criminal
charges for fraud or conspiracy to commit fraud in connection
with the Section 8(a) program.
Through a civil action filed in the district court, PSI
sought reimbursement under insurance policies (the 2011 policy
and the 2012 policy) issued by Starr of certain costs expended
in connection with these investigations. Starr ultimately
reimbursed to PSI $846,483.34. After the officers pled guilty,
however, Starr sought recoupment of the amount paid through a
counterclaim. The district court granted summary judgment in
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Starr’s favor, concluding that the 2011 policy controlled, each
of the four coverage exclusions on which Starr relied (the
exclusions for profit, fraud, and prior knowledge and based on a
warranty letter) barred coverage under the policy, and that
Starr was entitled to recoupment of costs reimbursed to PSI.
Starr later moved pursuant to Rule 59(e) to alter or amend the
district court’s judgment to reflect it was entitled to
recoupment of the $846,483.34 sum, plus pre- and post-judgment
interest. The district court granted Starr’s motion, awarded it
judgment in the amount of $846,483.34 and awarded pre- and
post-judgment interest. PSI appeals and challenges the district
court’s grant of summary judgment in Starr’s favor.
We review de novo the district court’s award of summary
judgment and view the facts in the light most favorable to the
non-moving party. Woollard v. Gallagher, 712 F.3d 865, 873
(4th Cir. 2013). “Summary judgment is appropriate only if the
record shows ‘that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.’” Id. (quoting Fed. R. Civ. P. 56(a)).
The relevant inquiry on summary judgment is “whether the
evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-52 (1986). To withstand a
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summary judgment motion, the non-moving party must produce
competent evidence sufficient to reveal the existence of a
genuine issue of material fact for trial. See Thompson v.
Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002)
(“Conclusory or speculative allegations do not suffice, nor does
a mere scintilla of evidence in support of [the non-moving
party’s] case.” (internal quotation marks omitted)). We will
uphold the district court’s grant of summary judgment unless a
reasonable jury could return a verdict for the non-moving party
on the evidence presented. See EEOC v. Cent. Wholesalers, Inc.,
573 F.3d 167, 174-75 (4th Cir. 2009).
We conclude after review of the record and the parties’
briefs that the district court did not reversibly err in
granting summary judgment to Starr. We reject as without merit
PSI’s contention that the exclusion for prior knowledge in the
2011 policy is not applicable to bar coverage in this case
because the 2012 policy controls. Contrary to PSI’s suggestion,
Starr did not waive its right to rely on and is not estopped
from relying on the coverage exclusions in the 2011 policy.
See Ins. Co. of N. Am. v. Atl. Nat’l Ins. Co., 329 F.2d 769,
775-76 (4th Cir. 1964); State Farm Fire & Cas. Co. v. Mabry,
497 S.E.2d 844, 846 (Va. 1998); Stanley’s Cafeteria, Inc. v.
Abramson, 306 S.E.2d 870, 873 (Va. 1983). We also reject as
unsupported by the record PSI’s contention that the warranty
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letter bars coverage in this case because the district court
impermissibly resolved issues of fact regarding the
circumstances under which the letter was executed to find it was
part of the 2011 policy. We further reject as without merit
PSI’s contention that the coverage exclusions relative to profit
and fraud do not apply to bar coverage with respect to PSI’s
general counsel and two employees because the exclusions were
applicable to bar coverage for these individuals as a result of
the guilty pleas of PSI’s former chief executive officer and
chief financial officer. Additionally, as it is clear from the
undisputed evidence of record that there were not Claims under
the 2011 policy with respect to these individuals, PSI’s
contention that the district court improperly resolved fact
issues to reach this conclusion is without merit. Finally, we
reject as both unsupported by the record and otherwise without
merit PSI’s arguments challenging the district court’s
determination that Starr was entitled to the remedy of
recoupment under the terms of the 2011 policy.
Accordingly, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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