Rodenburg LLP v. Cincinnati Insurance Company ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-2521
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Rodenburg LLP, doing business as Rodenburg Law Firm
lllllllllllllllllllllPlaintiff - Appellant
v.
Certain Underwriters at Lloyd’s of London, Syndicate No. 4020, subscribing to
Policy Number DCLPLA 00574-00
lllllllllllllllllllllDefendant
The Cincinnati Insurance Company
lllllllllllllllllllllDefendant - Appellee
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Appeal from United States District Court
for the District of North Dakota - Eastern
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Submitted: May 11, 2021
Filed: August 25, 2021
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Before COLLOTON, WOLLMAN, and KOBES, Circuit Judges.
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WOLLMAN, Circuit Judge.
Rodenburg Law Firm (Rodenburg) appeals from the district court’s1 adverse
grant of summary judgment, arguing that The Cincinnati Insurance Company
(Cincinnati) breached its contractual duty to defend Rodenburg against a lawsuit filed
by Charlene Williams (Williams). We affirm.
I. Background
Rodenburg purchased a Commercial Umbrella Liability Policy from Cincinnati.
The policy is governed by North Dakota law and obligates Cincinnati to indemnify
Rodenburg for liability to third parties for certain defined injuries, namely “bodily
injury,” “property damage,” and “personal and advertising injury,” if such injury was
“caused by an ‘occurrence.’” “Bodily injury” includes “humiliation, shock, fright,
mental anguish or mental injury.” “Personal and advertising injury” means “injury,
including ‘bodily injury’, arising out of one or more of the following offenses: . . .
Malicious prosecution; [or] . . . Defamation of character; [or] . . . publication . . . of
material that violates a person’s right of privacy.” The policy excludes coverage for
“bodily injury” that was “expected or intended from [Rodenburg’s] standpoint,” and
for liability arising out of conduct alleged to violate certain statutes. Cincinnati has
a “duty to defend [Rodenburg] against any ‘suit’ seeking damages because of ‘bodily
injury’, ‘personal and advertising injury’, or ‘property damage’ to which [the policy]
applies.”
Rodenburg, whose primary business is debt collection, obtained a default
judgment on a debt owed by a “Charlene Williams.” In early November 2016,
Rodenburg served a notice of intent to garnish “Charlene Williams’s” wages at the
residential address associated with the debt. Receiving no answer, Rodenburg then
served US Foods, Williams’s employer, with a garnishment notice. Williams
1
The Honorable Peter D. Welte, United States District Judge for the District of
North Dakota.
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contacted Rodenburg on December 21, 2016, and allegedly informed it that she was
not the debtor against whom it had a default judgment. Rodenburg allegedly ignored
this information and proceeded to garnish Williams’s paychecks for six weeks
beginning on December 29, 2016. After a lawyer informed Rodenburg in February
2017 that it indeed had the wrong “Charlene Williams,” Rodenburg ceased
garnishment and returned the wrongfully garnished funds to Williams.
Williams thereupon sued Rodenburg, asserting several theories including
wrongful garnishment, tort-based claims, and violations of the Fair Debt Collection
Practices Act (FDCPA), 15 U.S.C § 1692 et seq. The complaint alleged that
Rodenburg violated the FDCPA by: communicating with third parties, including her
employer, about the alleged debt, see id. § 1692c(b); garnishing her wages even after
learning that it had identified the wrong person, see id. § 1692d (prohibiting conduct
in connection with a debt collection that harasses, oppresses, or abuses); representing
that Williams owed a debt, representing that it had a right to collect the debt,
attempting to induce Williams to pay the debt, and implying that Williams had
committed other disgraceful conduct, see id. § 1692e (prohibiting the use of “false,
deceptive, or misleading representation or means in connection with” debt
collection); and collecting or attempting to collect the debt without legal authority to
do so, see id. § 1692f (prohibiting the use of “unfair or unconscionable means” to
collect a debt). Citing the FDCPA’s recognition of “a person’s inherent right to
privacy in collection matters,” see id. § 1692(a) (“Abusive debt collection practices
contribute . . . to invasions of individual privacy.”), the complaint also alleged that
Rodenburg’s actions—communicating to Williams’s employer about the debt,
garnishing her wages without legal authority, and willfully continuing to collect the
debt after having been told about its potential mistake—amounted to common law
invasion of privacy. Williams also alleged that Rodenburg had converted her wages
and that its actions caused her to suffer emotional distress, humiliation, and temporary
interference with the use and enjoyment of her property.
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Rodenburg filed a claim under the policy for coverage of the Williams lawsuit.
Cincinnati denied coverage, and Rodenburg later settled with Williams. Rodenburg
then brought this action seeking a declaratory judgment that Cincinnati had breached
its policy-created contractual duties to defend and indemnify Rodenburg. The district
court found that the policy did not provide coverage for any alleged interference with
Williams’s use and enjoyment of her wages. It concluded that the alleged emotional
distress was “bodily injury” under the policy, but that it either was not “caused by an
‘occurrence’” or was excluded from coverage by the policy’s “Expected or Intended
Injury” exclusion. Although the district court then found that the Williams
complaint’s factual allegations implicated injury that was “personal and advertising
injury” under the policy, it held that the policy’s “Distribution of Materials in
Violation of Statutes” exclusion (Violation of Statutes Exclusion) excluded coverage
for that injury. Concluding that the policy did not provide coverage for the Williams
lawsuit, the district court held that Cincinnati had no duty to defend Rodenburg under
the policy and granted summary judgment in Cincinnati’s favor.
Rodenburg appeals, arguing that the alleged emotional distress was covered by
the policy because it was “caused by an ‘occurrence’” and was not expected or
intended. Rodenburg also argues that the policy’s Violation of Statutes Exclusion did
not apply.2
II. Discussion
We review the district court’s grant of summary judgment de novo. Landers
Auto Grp. No. One, Inc. v. Cont’l W. Ins. Co., 621 F.3d 810, 812 (8th Cir. 2010). We
will affirm the grant of summary judgment only if there is no genuine issue of
2
Rodenburg does not appeal the district court’s finding that the alleged
interference with Williams’s use and enjoyment of her property was not a
policy-covered injury.
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material fact that Cincinnati did not breach its contractual duties to defend and
indemnify Rodenburg under North Dakota law and thus is entitled to judgment as a
matter of law. See Fed. R. Civ. P. 56(a); Hiatt v. Mazda Motor Corp., 75 F.3d 1252,
1255 (8th Cir. 1996) (we apply state substantive law and federal procedural law in
diversity cases). Because “[a]n insurer’s duty to defend is broader than its duty to
indemnify,” Forsman v. Blues, Brews & Bar-B-Ques, Inc., 903 N.W.2d 524, 535
(N.D. 2017), Cincinnati’s duty to indemnify arises under the policy only if it first had
a duty to defend. We thus focus our analysis on whether Cincinnati had a duty to
defend Rodenburg in the Williams lawsuit.
Cincinnati had a duty to defend the entire lawsuit if there was a possibility of
policy coverage for any one of Williams’s claims against Rodenburg. See Tibert v.
Nodak Mut. Ins. Co., 816 N.W.2d 31, 42 (N.D. 2012). The language of the contract
determines the scope of the policy’s coverage. K & L Homes, Inc. v. Am. Fam. Mut.
Ins. Co., 829 N.W.2d 724, 728 (N.D. 2013). We “resolve any doubt . . . in favor of
the duty to defend.” First Nat’l Bank & Trust Co. of Williston v. St. Paul Fire &
Marine Ins. Co., 971 F.2d 142, 144 (8th Cir. 1992) (citation omitted) (applying and
interpreting North Dakota law). “[I]f the policy language is clear on its face, there is
no room for construction,” however, and if the policy unambiguously precludes
coverage, “we will not rewrite a contract to impose liability on an insurer.” K & L
Homes, 829 N.W.2d at 728 (citation omitted). After determining the scope of the
policy’s coverage, we determine whether Williams’s claims were possibly covered
based on the allegations in the complaint. See First Nat’l Bank, 971 F.2d at 144.
“[T]he duty to defend does not depend on the nomenclature of the claim. Rather, the
focus is on the basis for the injury.” Nodak Mut. Ins. Co. v. Heim, 559 N.W.2d 846,
852 (N.D. 1997) (citation omitted).
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A. Covered Injuries
Cincinnati had a duty to defend Rodenburg if Williams alleged either “bodily
injury” or “personal and advertising injury” that was “caused by an ‘occurrence.’”
Williams’s alleged emotional distress meets the policy’s definition of “bodily injury.”
Any injury allegedly caused by certain enumerated offenses meets the policy’s
definition of “personal and advertising injury.” Neither party disputes that Williams’s
complaint alleged both “bodily injury” and “personal and advertising injury.” The
question then is whether those injuries were “caused by an ‘occurrence.’”
The policy first defines “occurrence” as “[a]n accident . . . that results in
‘bodily injury.’” Rodenburg contends that Williams’s alleged “bodily injury” was the
result of an accident—its mistaking Williams for its judgment debtor. Williams’s
complaint does not allege that she suffered emotional distress as a result of
Rodenburg’s mistake about Williams’s identity, however. It instead alleges that she
suffered emotional distress as a result of Rodenburg’s contacting her employer and
co-workers about her alleged debt, ignoring her when she informed Rodenburg of its
mistake, and subsequently garnishing her wages for six weeks. See Landers Auto
Grp., 621 F.3d at 815 (applying Arkansas law and concluding that the claims against
the insured did not arise from the accident—mistakes in accounting—but from the
subsequent intentional acts—repossessing the vehicle and failing to negotiate in good
faith—taken by the insured). We reject Rodenburg’s contention that its mistaken
belief about its rights transforms those conscious actions into “accidents.” Under that
approach, “any conscious decision that in retrospect appears to have been imprudent
may be termed a ‘mistake.’” First Nat’l Bank, 971 F.2d at 145. The complaint clearly
alleges that Williams’s emotional distress was the result of Rodenburg’s intentional
actions and therefore was not “caused by an [‘accident that results in . . . “bodily
injury”’].”
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The policy also defines an “occurrence” as an “offense that results in ‘personal
and advertising injury.’” The policy does not define “offense,” but does provide a list
of “offenses,” including defamation, malicious prosecution, and publication of
information in violation of privacy, that give rise to “personal and advertising injury.”
Thus, if Williams’s complaint alleged injury resulting from any of those offenses,
such injury would both meet the definition of “personal and advertising
injury”—which, as set forth above, includes alleged “bodily injury”—and have been
“caused by an ‘occurrence.’”
As noted above, Williams’s complaint alleged that she suffered injury as a
result of Rodenburg’s communication of information about the debt to third parties
and that that communication violated her privacy, was potentially disgraceful to her,
and “intruded upon and interfered with [her] place of employment.” The complaint
thus alleged injury resulting from defamation and Rodenburg’s privacy-violating
publication of information. See N.D. Cent. Code § 14-02-02 (defamation is effected
by libel); id. § 14-02-03 (civil libel is “false and unprivileged publication . . . which
exposes any person to hatred, [or] contempt, . . . or which has a tendency to injure the
person in the person’s occupation”); see also 15 U.S.C. § 1692(a). Williams’s
complaint also averred malicious prosecution-based injury resulting from
Rodenburg’s attempted debt collection in the absence of legal authority. See N.D.
Pattern Jury Instruction Civ. No. C-13.00 (2019) (to prove malicious prosecution
under North Dakota law, a plaintiff must establish, among other things, that the
defendant instituted a civil proceeding against the plaintiff and that there was no
probable cause for the proceeding). Cincinnati therefore had a duty to defend
Rodenburg against the Williams lawsuit because the complaint alleged “personal and
advertising injury” that was “caused by an ‘occurrence.’” See First Nat’l Bank, 971
F.2d at 144 (we “resolve any doubt . . . in favor of the duty to defend.”)
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B. The Exclusions
Cincinnati may still prove that it did not breach its duty to defend, however, by
showing that any possibly covered injuries are excluded from coverage under one of
the policy’s exclusions. See Forsman, 903 N.W.2d at 531 (once the insured
establishes that there were covered injuries, the insurer has the burden to prove that
an exclusion to coverage applies).
The Violation of Statutes Exclusion excludes coverage for:
8. Distribution of Material in Violation of Statutes
Any liability arising directly or indirectly out of any action or
omission that violates or is alleged to violate:
(a) The Telephone Consumer Protection Act (TCPA), . . . ;
(b) The CAN-SPAM Act of 2003, . . . ; or
(c) Any statute, ordinance or regulation, other than the TCPA or
CAN-SPAM Act of 2003, that prohibits or limits the sending,
transmitting, communicating or distribution of material or
information.
Cincinnati argues that the exclusion applied because the FDCPA is a statute that
“prohibits or limits the . . . communicating . . . of material or information.” See 15
U.S.C. § 1692d (limiting debt collectors’ ability to use threats of violence, publicize
lists of consumers allegedly refusing to pay debts, cause a telephone to ring
repeatedly or continuously, or engage someone in telephone conversation repeatedly
or continuously).
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Rodenburg asks that we construe the Violation of Statutes Exclusion more
narrowly, arguing that FDCPA violations are not included in Subsection 8(c) because
the FDCPA does not limit communication in the same way that the TCPA and the
CAN-SPAM Act of 2003 do.3 See Bullseye Rest., Inc. v. James River Ins. Co., 387
F. Supp. 3d 273, 282–84 (E.D.N.Y. 2019) (applying New York law and finding,
based on rules of construction, including ejusdem generis, more than one reasonable
reading of an identical exclusion). Rodenburg reasons that applying a literal reading
of Subsection 8(c) would exclude from insurance coverage a major source of
potential liability—alleged FDCPA violations—for a debt collection law firm like
itself.
North Dakota law does not permit us to apply rules of construction to the
policy’s language, however, unless we first find that the language is ambiguous.
K & L Homes, 829 N.W.2d at 728. “Ambiguity . . . exists when the language can be
reasonably construed as having at least two alternative meanings . . . .” Kief Farmers
Coop. Elevator Co. v. Farmland Mut. Ins. Co., 534 N.W.2d 28, 32 (N.D. 1995).
Although the Violation of Statutes Exclusion uses broad language, the words are not
susceptible to multiple meanings, contra Herald Sq. Loft Corp. v. Merrimack Mut.
Fire Ins. Co., 344 F. Supp. 2d 915, 919–20 (S.D.N.Y. 2004) (“pollutant” could be
interpreted narrowly within exclusion’s traditional understanding and purpose or
literally and expansively); the literal reading does not contradict another policy
provision, see Aid Ins. Servs., Inc. v. Geiger, 294 N.W.2d 411, 414 (N.D. 1980)
(finding “patent” ambiguity where literal, broad reading of an exclusion contradicted
another exclusion); and a lay person would understand the exclusion as written, see
Kief Farmers, 534 N.W.2d at 32 (“We consider whether a person not trained in the
3
The TCPA prohibits or limits telemarketing and use of automatic dialing
systems or artificial or prerecorded voices. See 47 U.S.C. § 227(b)(1)(A). The
Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003
(CAN-SPAM Act) prohibits or limits unsolicited commercial electronic mail. 15
U.S.C. § 7701 et seq.
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law or in the insurance business can clearly understand the language.”). The policy
language is unambiguous and clear on its face. We therefore must enforce it as
written. The Violation of Statutes Exclusion excludes coverage for Rodenburg’s
potential FDCPA liability because the statute falls within the plain language of
Subsection 8(c). See 15 U.S.C. § 1692d.
Rodenburg argues that even if the policy excluded coverage for the injury
caused by the alleged FDCPA violations, it did not exclude coverage for the injury
caused by the alleged intentional torts because “Cincinnati cannot show that a
violation of the FDCPA caused Rodenburg to invade [Williams’s] privacy, defame
her, or maliciously prosecute her.” The language of the Violation of Statutes
Exclusion is broad, however, excluding coverage for not only statutory liability but
also “[a]ny liability arising directly or indirectly out of any action or omission that
violates or is alleged to violate” the FDCPA. “The words ‘arising out of’ mean
causally connected with, not ‘proximately caused by’ . . . .” Norgaard v. Nodak Mut.
Ins. Co., 201 N.W.2d 871, 875 (N.D. 1972) (citation omitted). “The term is ordinarily
understood to mean ‘originating from,’ or ‘growing out of,’ or ‘flowing from.’” Id.(citation omitted).
The question, therefore, is whether Williams’s complaint alleged covered
injury that did not originate from allegedly FDCPA-violating conduct. It did not. As
discussed above, the policy covers only Williams’s alleged injury that was caused by
defamation, malicious prosecution, or publication in violation of privacy. The
complaint alleges the conduct underlying the FDCPA claims was the same conduct
underlying the invasion of privacy claim. The unpled defamation and malicious
prosecution offenses similarly flow from Rodenburg’s allegedly FDCPA-violating
conduct—unprivileged communication with third parties allegedly violates 15 U.S.C.
§ 1692c(b), and Rodenburg’s collection actions lacking probable cause allegedly
violate 15 U.S.C. § 1692f. Thus, the Violation of Statutes Exclusion excludes
coverage for liability arising from those offenses, and the policy does not cover
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Rodenburg’s potential liability to Williams for any of the covered injury alleged in
the complaint.4
III. Conclusion
Williams’s complaint alleged “personal and advertising injury” that was
“caused by an ‘occurrence.’” Any potential liability arose either directly or indirectly
from conduct that was alleged to violate the FDCPA, however, and was thus excluded
from coverage by the Violation of Statutes Exclusion. Cincinnati therefore did not
breach its contractual duty to defend Rodenburg, and so we need not reach the
question whether Cincinnati had a duty to indemnify Rodenburg for the Williams
lawsuit.
The judgment is affirmed.
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4
Because the Violation of Statutes Exclusion excludes coverage for any
covered injury alleged in Williams’s complaint, including alleged “bodily injury”
“caused by an [‘offense that results in “personal and advertising injury”’],” we need
not reach the policy’s Expected or Intended Injury exclusion.
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