Kevin G. Smith v. Shirley F. Henslin ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 96-2456
___________
Kevin Graeme Smith, *
Individually and as the *
Representative of All *
Underwriters at Lloyd's, *
*
Plaintiff - Appellee, *
*
v. * Appeal from the United States
* District Court for the
Shirley F. Henslin, dba * Western District of Arkansas.
CAR Transportation Company, *
* [UNPUBLISHED]
Defendant - Appellant, *
*
Golden Eagle Insurance Company, *
*
Defendant - Appellee. *
___________
Submitted: January 16, 1997
Filed: February 25, 1997
___________
Before LOKEN, JOHN R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circuit
Judges.
___________
PER CURIAM.
From August 10, 1990, until September 10, 1992, insurance
broker Steven M. Kennedy obtained errors and omissions insurance
coverage from Golden Eagle Insurance Company ("Golden Eagle") on a
claims made basis. From September 10, 1992, until February 2,
1993, Kennedy obtained similar coverage from the Underwriters at
Lloyd's of London ("Lloyd's"). During these periods, Kennedy
received large premium payments from his customer, Shirley Henslin,
to pay for liability and cargo insurance for her interstate motor
carrier business, CAR Transportation Company. In April 1995, after
the insurers procured by Kennedy denied coverage for numerous
liability and cargo claims asserted against CAR, Henslin sued the
insurers, Kennedy, Golden Eagle, and Lloyd's, seeking to hold some
financially responsible party liable to provide the insurance
Henslin thought she had purchased.
Henslin's lawsuit, ultimately dismissed by the district court
for lack of federal jurisdiction, caused Lloyd's (represented by
plaintiff Kevin Graeme Smith) to commence this lawsuit against
Kennedy, Henslin, and Golden Eagle, seeking a declaratory judgment
that Lloyd's need not indemnify nor defend Kennedy against
Henslin's claims of broker malpractice. Kennedy, who is now
incarcerated, defaulted. Henslin defended, opposing the relief
requested by Lloyd's. Golden Eagle defended and cross-claimed
against Henslin, asserting that it, too, has no obligation to
indemnify or defend Kennedy against Henslin's claims.
Henslin now appeals the entry of judgment in favor of Lloyd's
and Golden Eagle. As to Lloyd's, the district court1 concluded
that there is no coverage under the policy it issued to Kennedy
because Henslin made no errors and omissions claims, and Kennedy
gave Lloyd's no notice of any unasserted claims, during the policy
period. As to Golden Eagle, the court first entered a default when
Henslin failed to plead in response to Golden Eagle's cross claim.
It then denied Henslin's motion to set aside the default because
"there has been absolutely no attempt to show any cause, much less
good cause, for the failure to timely respond." However, the court
delayed entering judgment of default until after it granted summary
judgment in favor of Lloyd's on the merits of its claim.
On appeal, Henslin first argues that the court erred in
granting summary judgment in favor of Lloyd's because an insurer
The HONORABLE H. FRANKLIN WATERS, Chief Judge of the United
States District Court for the Western District of Arkansas.
-2-
"may not disclaim liability based upon inactions of the insured"
(Kennedy), and because the court in any event should not have
relied upon Lloyd's affidavit stating that it had received no
timely notice of claims. With a claims made policy, the insurer
need not show it was prejudiced by the lack of timely notice
because notice within the policy period "defines the limits of the
insurer's obligation." Lexington Ins. Co. v. St. Louis Univ., 88
F.3d 632, 634 (8th Cir. 1996). Therefore, after careful review of
the record, we affirm the grant of summary judgment for the reasons
stated in the district court's May 16, 1996, Memorandum Opinion.
See 8th Cir. Rule 47B.
Henslin next contends that the district court abused its
discretion in entering default judgment in favor of Golden Eagle.
Henslin argues that Golden Eagle was not prejudiced by Henslin's
inadvertent failure to reply to Golden Eagle's cross claim, and it
is therefore unjust to deprive Henslin of this substantial claim by
default. However, Henslin ignores the fact that the district court
delayed entering default judgment until it ruled on the merits of
Lloyd's claim. Like Lloyd's, Golden Eagle issued claims made
policies to Kennedy, and Henslin admitted to the district court --
albeit somewhat ambiguously -- that she could not recover from
Golden Eagle if Lloyd's prevailed on the merits of the claims-made
policy issue. In these circumstances, the district court did not
abuse its discretion in entering default judgment in favor of
Golden Eagle.
The judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
-3-