National Collegiate Athletic Association v. Ace American Insurance ( 2020 )

FILED
Jul 15 2020, 8:35 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES
George M. Plews Stephen J. Peters
Sean M. Hirschten David I. Rubin
Plews Shadley Racher & Braun, LLP Kroger Gardis & Regas, LLP
Indianapolis, Indiana Indianapolis, Indiana
Marianne G. May
Daren S. McNally
Florham Park, New Jersey
Sydney L. Steele
Kroger Gardis & Regas, LLP
Indianapolis, Indiana
David T. Brown
Chicago, Illinois
IN THE
COURT OF APPEALS OF INDIANA
National Collegiate Athletic July 15, 2020
Association, Court of Appeals Case No.
Appellant-Plaintiff, 19A-PL-1313
Appeal from the Marion Superior
v. Court
The Honorable David J. Dreyer,
Ace American Insurance, et al., Judge
Appellees-Defendants. Trial Court Cause No.
49D10-1601-PL-1570
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Plaintiff, National Collegiate Athletic Association (NCAA), appeals
the trial court’s summary judgment in favor of Appellees-Defendants, Federal
Insurance Company (FIC), Illinois National Insurance Company (Illinois
National), and Westchester Fire Insurance Company (Westchester)
(collectively, Insurers), concluding that, as a matter of law, Insurers are not
required to provide coverage for the underlying lawsuit filed against the
NCAA. 1
[2] We affirm.
ISSUE
[3] The NCAA presents one issue on appeal, which we restate as: Whether no
genuine issue of material fact exists that the Related Wrongful Acts Exclusion
in the NCAA insurance policies bars coverage for the NCAA in the Jenkins
lawsuit.
FACTS AND PROCEDURAL HISTORY
[4] The NCAA is an unincorporated association of American colleges and
universities, with the basic purpose to “maintain intercollegiate athletics as an
integral part of the educational program and the athlete as an integral part of
1
We conducted a virtual oral argument in this cause on June 9, 2020. We thank counsel for their excellent
advocacy and presentation.
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the student body and by so doing, retain a clear line of demarcation between
intercollegiate sports and professional sports.” (Appellant’s App. Vol IV, p. 17).
To achieve this purpose, the NCAA promulgates rules governing the financial
aid its member universities and colleges may offer student-athletes.
I. The Underlying Actions
[5] The NCAA’s rules governing what its member institutions may offer student-
athletes have changed since 2006, when a class action complaint in White v.
Nat’l Collegiate Athletic Ass’n, Case No. CV06-0999 (C.D. Cal.) was settled in
California. Prior to White, student-athlete scholarships, or grants-in-aid,
covered only tuition and fees, room and board, and required books. However,
this grant-in-aid was less than the actual cost of attendance. The total cost of
attendance includes all grant-in-aid items, in addition to “supplies,
transportation, and other expenses related to attendance at the institution.”
(Appellant’s App. Vol IV, p. 214). Pursuant to NCAA’s rules in 2006, student-
athletes could receive financial aid that covered the entire cost of attendance,
but the component of that scholarship that was paid in excess of the grant-in-aid
could not be based primarily on the student-athlete’s participation in athletics.
Nevertheless, member institutions could not offer student-athletes health
insurance or accident insurance and grants-in-aid could only be offered for a
single year.
[6] The White complaint, in its second amended version, alleged:
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While Major College Football and Major College Basketball
have become a huge commercial enterprise generating billions in
annual revenues, the NCAA and its member institutions do not
allow student-athletes the share of the revenues that they would
obtain in a more competitive market. Through an unlawful
horizontal agreement, the NCAA and its member institutions
have agreed to deny a legitimate share of the tremendous benefits
of their enterprise to the student-athletes that made the big
business of full-time college sports possible. Under their
longstanding express agreement, the NCAA and its member
institutions have short-changed student-athletes by imposing an
artificial cap on the amount of financial aid any student-athlete
may receive in the form of an athletic scholarship, or grant-in-aid.
The artificial cap on financial aid is set below the full amount of
the full cost of attendance that any student would incur to attend
the relevant colleges and universities.
(Appellant’s App. Vol. III, pp. 60-61). The White plaintiffs’ antitrust theory
advocated that without the NCAA’s grant-in-aid rules in place at the time,
“[s]chools competing against one another to attract student-athletes in the
relevant markets for Major College Football and Major College Basketball
would increase the amount of financial aid available so that full athletic
scholarships would, in fact, cover the full [cost of attendance].” (Appellant’s
App. Vol. III, p. 61). As relief, the White plaintiffs sought the elimination of the
artificial grant-in-aid cap and damages based on the athletics-based financial aid
payments covering the full cost of attendance. They also requested the White
court for an injunction restraining the NCAA from enforcing its unlawful and
anticompetitive agreements to cap the amount of financial aid available to
student-athletes at an amount that does not cover the full cost of attendance.
While the NCAA was the only defendant in this matter, the plaintiff class was
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limited to male college football and basketball players who received athletic-
based grants-in-aid at any time between February 17, 2002 and the “date of
judgment in this matter.” (Appellant’s App. Vol. III, p. 66). White settled in
2008, with final judgment entered on August 5, 2008.
[7] In conjunction with and after the White settlement, the NCAA made changes to
the benefits system that member institutions could offer student-athletes. As a
result, the cost of attendance gap between the value of a scholarship and the
actual cost of attending the institution decreased after 2006. Furthermore, the
NCAA and its member institutions created a $218 million Student-Athlete
Opportunity Fund accessible to student-athletes with financial need which
allowed schools to provide varying degrees of benefits to student-athletes tied to
the student-athlete’s education or to the cost of attending the institution. The
NCAA also amended various rules to allow schools to offer additional benefits
such as health and accident insurance and to offer scholarships that are
guaranteed regardless of whether the student-athlete competes for the entirety of
the period of the financial aid award.
[8] On March 17, 2014, another class action complaint, Jenkins et al. v. Nat’l
Collegiate Athletic Assoc., was filed. The second amended complaint, filed on
February 13, 2015, in the United States District Court for the Northern District
of California, alleged
The Defendants in this action—the [NCAA] and five major
NCAA conferences that had agreed to apply NCAA restrictions
[]—earn billions of dollars in revenues each year through the
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hard work, sweat and sometimes broken bodies of top-tier college
football and men’s basketball athletes who perform services for
Defendants’ member institutions in the big business of college
sports. However, instead of allowing their member institutions
to compete for the services of those players while operating their
businesses, Defendants have entered into what amounts to cartel
agreements with the avowed purpose and effect of placing a
ceiling on the compensation that may be paid to those players for
their services. Those restrictions are pernicious, a blatant
violation of the antitrust laws, have no legitimate pro-competitive
justification, and should now be struck down and enjoined.
(Appellant’s App. Vol. III, p. 116). Through its lawsuit, the Jenkins plaintiffs
sought to enjoin the NCAA and the other defendants from imposing any
restrictions on the amount of money or other benefits that may be offered to
student-athletes by the schools or anyone else. While White challenged NCAA
Bylaws 15.02.5, 15.02.2, and 15.1, which capped a grant-in-aid below the cost
of attendance, Jenkins contested, as illegal under the Sherman Act, all NCAA
rules that prohibit, cap, or otherwise limit the remuneration that players may
receive for their athletic services, including but not limited to NCAA Bylaws 12
(amateurism; prohibiting boosters, etc.), 13 (recruiting), 15, and 16.
[9] The Jenkins action was filed on behalf of two classes consisting of Division I
Football Bowl Subdivision football players and men’s Division I basketball
players who, from the date of the Jenkins complaint through final judgment in
Jenkins have received or will receive a full grant-in-aid scholarship or a written
offer for a grant-in-aid scholarship. The Jenkins time period does not overlap
with the White time period. Unlike White, Jenkins’ declaratory and injunctive
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relief sought to enjoin the NCAA and the other defendants from imposing any
restrictions on what money or other benefits could be offered to student-
athletes.
II. Insurance Coverage
A. The 2005-2006 Policies – (effective during the White litigation)
[10] The NCAA purchased a primary insurance policy issued by National Union
Fire Insurance Company (National Fire) (2005-2006 Primary Policy) and two
excess policies for the period of September 30, 2005 to September 30, 2006.
One of the excess policies is a follow form policy, indicating that its coverage
generally applies according to the same terms and conditions as the 2005-2006
Primary Policy after the 2005-2006 Primary Policy is exhausted.
[11] Coverage under the 2005-2006 Primary Policy was limited to Claims “first
made” and reported during the policy period: “This policy shall pay on behalf
of the [NCAA] Loss arising from a Claim first made against the [NCAA]
during the Policy Period . . . reported to the Insurer . . . for any actual or alleged
Wrongful Act of the [NCAA][.]” (Appellees’ App. Vol. III, p. 25). However,
Section 7(b) of the Primary Policy states:
If a written notice of Claim has been given to the Insurer
pursuant to Clause 7(a) above, then any Claim which is
subsequently made against the Insureds and reported to the
Insurer alleging, arising out of, based upon or attributable to the
facts alleged in the Claim for which such notice has been given,
or alleging any Wrongful Act which is the same as or related to
any Wrongful Act alleged in the Claim of which such notice has
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been given, shall be considered made at the time such notice was
given.
(Appellees’ App. Vol. III, p. 36).
[12] ‘Claim’ is defined as “A written demand for monetary relief; or . . . a civil,
criminal, regulatory or administrative proceeding for monetary or non-
monetary relief[.]” (Appellees’ App. Vol. III, p. 29). The 2005-2006 Primary
Policy defines Wrongful Act, in relevant part, as “any breach of duty, neglect,
error, misstatement, misleading statement, omission or act by or on behalf of
the [NCAA].” (Appellees’ App. Vol. III, p. 32). The definition also
“specifically include[s] . . . violation of the Sherman Antitrust Act or similar
federal, state or local statutes or rules[.]” (Appellees’ App. Vol. III, p. 33). The
2005-2006 Primary Policy notes that “any Claim which is made subsequent to
the Policy Year . . . which, pursuant to Clause 7(b) . . . is considered made
during the Policy Year . . . shall also be subject to the one applicable aggregate
Limit of Liability[.]” (Appellees App. Vol. III, p. 35).
B. The 2012-2014 Policies - (effective at the commencement of Jenkins)
[13] XL Specialty Insurance Company (XL) 2 issued a primary policy to NCAA for
the period of September 30, 2012 to September 30, 2014 for an amount of $20
million (2012-2014 Primary Policy). Excess policies, which are follow form
2
XL settled with NCAA in 2018.
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policies to XL’s primary policy, were issued by FIC (for an amount of $10
million in excess of $20 million), by Illinois National (for an amount of 10
million in excess of $30 million), and by Westchester (for an amount of $5
million in excess of $40 million) (collectively, 2012-2014 Excess Policies).
[14] The “Insuring Agreement” under Coverage C of the 2012-2014 Primary Policy
notes that
This policy shall pay on behalf of the [NCAA] Loss arising from
a Claim first made against the [NCAA] during the Policy Period
. . . reported to the Insurer . . . for any actual or alleged Wrongful
Act of the [NCAA]
(Appellant’s App. Vol. II, p. 192). The 2012-2014 Primary Policy defines
Wrongful Acts as “any actual or alleged: act, error, omission, misstatement,
misleading statement, neglect or breach of duty for: . . . (b) violation of the
Sherman Antitrust Act or similar federal, state or local statutes or rule[.]”
(Appellant’s App. Vol. II, pp. 195-96).
[15] Jenkins is a Claim made against the NCAA during the 2012-2014 Primary
Policy period. The NCAA timely reported Jenkins to the Insurers pursuant to
the respective policy terms. Nevertheless, the 2012-2014 Primary Policy
includes a Related Wrongful Acts Exclusion, which provides as follows:
IV. Exclusions
The Insurer shall not be liable to make any payment for Loss in
connection with a Claim made against the Insured:
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***
C. alleging, arising out of, based upon or attributable to the facts
alleged, or to the same or Related Wrongful Act alleged or
contained, in any Claim which has been reported, or in any
circumstance of which notice has been given before the inception
date of this policy, under any other management liability
insurance policy, directors and officers liability insurance policy
or any similar insurance policy of which this policy is a renewal
or replacement or which it may succeed in time[.]
(Appellant’s App. Vol. II, p. 197). The 2012-2014 Primary Policies define
“Related Wrongful Act” as:
Wrongful Acts which are the same, related or continuous, or
Wrongful Acts which arise from a common nucleus of facts.
Claims can allege Related Wrongful Acts regardless of whether
such Claims involve the same or different claimants, Insureds or
legal causes of action.
(Appellant’s App. Vol. II, p. 194). The 2012-2014 Primary Policy also contains
a notice provision which does not exclude coverage but aligns notice as to an
initial and any subsequent “same or . . . related” Wrongful Act:
VII. Notice/Claim Reporting Provision
Notice hereunder shall be given in writing to the Insurer . . .
B. If written notice of a Claim has been given to the Insurer
pursuant to Clause VII A above, then any Claim which is
subsequently made against the Insureds and reported to the
Insurer alleging, arising out of, based upon or attributable to the
facts alleged in the Claim for which such notice has been given,
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or alleging a Wrongful Act which is the same as or related to any
Wrongful Act alleged in the Claim of which such notice has been
given, shall be considered made at the time such notice was
given.
(Appellant’s App. Vol. II, p. 200).
[16] By letter dated April 11, 2014, XL denied coverage for Jenkins under the 2012-
2014 Primary Policy, finding upon review of NCAA’s claim that the “Jenkins
[a]ction involves the same Wrongful Acts and/or Related Wrongful Acts as
those at issue in the White [a]ction.” (Appellant’s App. Vol. II, p. 168). Both
“suits challenge the limitation on the amount of [grant-in-aid] provided to
Division I men’s football and/or basketball players which is less than the full
cost of attendance, and assert that the NCAA unlawfully has agreed with other
entities to cap the financial aid provided to student-athletes. . . . The [two]
actions therefore involved the same, related or continuous Wrongful Acts
and/or Wrongful Acts which arise from a common nucleus of facts.”
(Appellant’s App. Vol. II, p. 168). Accordingly, as Jenkins was deemed to have
been first made in February 2006 when White was filed, XL precluded coverage
under the 2012-2014 Primary Policy. The insurers of the excess policies equally
relied on XL’s denial of coverage to bar coverage under the 2012-2014 Excess
Policies.
[17] On January 14, 2016, NCAA filed its Complaint for declaratory judgment and
damages against XL and Insurers. On April 31, 2017, NCAA was granted
leave to amend its Complaint by adding ACE American Insurance Company
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(ACE), North American Specialty Insurance Company (NAS), Starr Indemnity
& Liability Company (Starr), and U.S. Specialty Insurance Company (U.S.
Specialty) (collectively, New Defendants) as additional Defendants. The
parties subsequently filed and briefed cross-motions for partial summary
judgment on NCAA’s claim for insurance coverage, together with supporting
evidentiary designations. Following a settlement with the NCAA, XL was
dismissed from this action.
[18] On June 1, 2019, after a hearing, the trial court entered its partial summary
judgment in favor of Insurers, finding
The NCAA repeatedly draws overly fine distinctions regarding
the related actions and deconstructs the language about different
class action definitions and causes of actions, etc. The [c]ourt
finds these analyses unavailing. The Related Wrongful Acts and
prior notice provisions are unambiguous, the underlying claims
are clearly all against one wrongful act, that is, the enforcement
of Bylaws 15 and 16, first made in the White action, and
coverage is barred under the policies.
(Appellant’s App. Vol. II, p. 61). On July 1, 2019, the trial court amended its
Order.
[19] The NCAA appealed. Following the NCAA’s appeal, the New Defendants
were dismissed from this action. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
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[20] In reviewing a trial court’s ruling on summary judgment, this court stands in the
shoes of the trial court, applying the same standards in deciding whether to
affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley,
891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we
must determine whether there is a genuine issue of material fact and whether
the trial court has correctly applied the law. Id. at 607-08. In doing so, we
consider all of the designated evidence in the light most favorable to the non-
moving party. Id. at 608. A fact is ‘material’ for summary judgment purposes if
it helps to prove or disprove an essential element of the plaintiff’s cause of
action; a factual issue is ‘genuine’ if the trier of fact is required to resolve an
opposing party’s different version of the underlying facts. Ind. Farmers Mut. Ins.
Group v. Blaskie, 727 N.E.2d 13, 15 (Ind. 2000). The party appealing the grant
of summary judgment has the burden of persuading this court that the trial
court’s ruling was improper. First Farmers Bank & Trust Co., 891 N.E.2d at 607.
[21] We observe that, in the present case, the trial court entered findings of fact and
conclusions of law thereon in support of its judgment. Generally, special
findings are not required in summary judgment proceedings and are not binding
on appeal. AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48
(Ind. Ct. App. 2004). However, such findings offer a court valuable insight into
the trial court’s rationale and facilitate appellate review. Id.
II. Analysis
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[22] Interpretation of an insurance policy presents a question of law that is
particularly suited for summary judgment. State Auto Mut. Ins. Co. v. Flexdar,
964 N.E.2d 845, 848 (Ind. 2012). “It is well settled that where there is
ambiguity, insurance policies are to be construed strictly against the insurer and
the policy language is viewed from the standpoint of the insured.” Allstate Ins.
Co. v. Dana Corp., 759 N.E. 1049, 1056 (Ind. 2001). This is especially true
where the language in question purports to exclude coverage. USA Life One Ins.
Co. of Ind. v. Nuckolls, 682 N.E.2d 534, 538 (Ind. 1997). Insurers are free to
limit the coverage of their policies, but such limitations must be clearly
expressed to be enforceable. W. Bend Mut. v. Keaton, 755 N.E.2d 652, 654 (Ind.
Ct. App. 2001), trans. denied. “Where provisions linking coverage are not
clearly and plainly expressed, the policy will be construed most favorably to the
insured, to further the policy’s basic purpose of indemnity.” Meridian Mut. Ins.
Co v. Auto-Owners Ins. Co., 698 N.E.2d 770, 773 (Ind. 1998). Where ambiguity
exists not because of extrinsic facts but by reason of the language used, the
ambiguous terms will be construed in favor of the insured for purposes of
summary judgment. Flexdar, 964 N.E.2d at 848.
[23] Focusing on the Related Wrongful Acts Exclusion clause in the 2012-2014
Primary Policy, the NCAA disputes its application because, applied literally,
the provision’s overbroad nature would negate virtually all coverage. As an
alternative argument, the NCAA contends that, even if the Exclusion is not
ambiguous, the alleged Wrongful Act in Jenkins differs from the Wrongful Act
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in White, is unrelated and unconnected, and therefore coverage falls within the
terms of the 2012-2014 Primary Policy.
[24] To support its argument that the Related Wrongful Acts Exclusion is overbroad
and imprecise, the NCAA likens the clause to Indiana’s precedents on pollution
exclusion clauses and advocates to apply our jurisprudence in the area of
environmental pollution to the language of the 2012-2014 Primary Policy.
American States Insurance Co. v. Kiger, 662 N.E.2d 945 (Ind. 1996) concerned
coverage for environmental contamination caused by leakage of gasoline from a
gas station’s underground storage tanks. Our supreme court held that because
“the term ‘pollutant’ does not obviously include gasoline and, accordingly, is
ambiguous, we . . . must construe the language against the insurer who drafted
it.” Id. at 949. The court reached this conclusion notwithstanding the fact that
“pollutant[]” was defined in the Kiger policy as “any solid, liquid, gaseous or
thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids,
alkalis, chemicals and waste.” Id. at 948. “Clearly,” the court concluded, “this
clause cannot be read literally as it would negate virtually all coverage.” Id.
[25] In Flexdar, our supreme court assessed the language of a pollution exclusion
clause, similar to the one at issue in Kiger. Flexdar, 964 N.E.2d at 848. In
evaluating the provision, the supreme court analyzed the approaches used by
other courts around the country in their interpretation of absolute pollution
exclusions. Id. at 848. The Flexdar court noted a division in jurisprudence
between courts employing a literal approach versus those applying a situational
approach in the application of exclusionary pollution clauses. Id. at 850. The
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literal approach applies the exclusionary terms broadly, and thus “eliminates
practically all coverage . . .” Id. at 851. Alluding to the literal approach as
“yielding [] untenable results,” our supreme court referenced the examples of
the barring of coverage for furs in a shop smelling like curry due to a
neighboring Indian restaurant and the explosion of a truck caused by vapor
from oilfield waste ignited by a running diesel motor. See id. at 851. In
contrast, the Flexdar court noted that other courts used the situational approach
which would salvage the exclusion from its overbreadth by upholding it “only
in cases of ‘traditional’ environmental contamination.” Id. Rejecting this
approach as workable, the court noted:
The concept of what is a ‘traditional’ environmental contaminant
may vary over time and has no inherent defining characteristics.
This leaves courts in the awkward and inefficient position of
making case-by-case determinations as to the application of the
pollution exclusion.
Id. Not finding either approach favorable, the supreme court resorted to the
application of “basic contract principles” which dictate that an “insurer can
(and should) specify what falls within its . . . exclusion.” Id. at 851.
Reaffirming Indiana’s ‘be specific’ approach, the court stated:
Where an insurer’s failure to be more specific renders its policy
ambiguous, we construe the policy in favor of coverage. Our
cases avoid both the sometimes untenable results produced by the
literal approach and the constant judicial substance-by-substance
analysis necessitated by the situational approach. In Indiana
whether the TEC contamination in this case would “ordinarily be
characterized as pollution,” is, in our view, beside the point. The
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question is whether the language in State Auto’s policy is
sufficiently ambiguous to identify TEC as a pollutant. We are
compelled to conclude that it is not.
Id. (internal citations omitted).
[26] Turning to the policy before us, the 2012-2014 Primary Policy defines Related
Wrongful Acts as “Wrongful Acts which are the same, related or continuous, or
Wrongful Acts which arise from a common nucleus of facts.” (Appellant’s
App. Vol. II, p. 194). Following Kiger and Flexdar, the NCAA claims that the
exclusionary language is overbroad, ambiguous, and fails to give policyholders
objective guidance as to the application of the provision. Defining “related” as
“associated; connected,” the NCAA maintains that every Wrongful Act insured
by the policies is “related” to every other Wrongful Act insured. “At a most
basic level, every act by the NCAA is ‘associated’ or ‘connected’ with every
other act the NCAA takes, because the NCAA committed them all.”
(Appellant’s Br. p. 27).
[27] We find the NCAA’s focus on Kiger and Flexdar to be without merit to the
situation before us. It is well-established under Indiana law that case law
interpreting insurance policy language in one policy is inapplicable to different
language in different policies and, as such, the NCAA’s reliance on Kiger and
Flexdar is misplaced. See Tate v. Secure Ins., 587 N.E.2d 665 (Ind. 1992) (“The
decision in [Meridian Mut. Ins. Co. v. Richie, 517 N.E.2d 1265(Ind. Ct. App.
119), vacated 540 N.E.2d 27 (Ind. 1989), reinstated on reh’g, 544 N.E.2d 488 (Ind.
1989)] is not applicable to the present facts because the Meridian Mutual policy
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language is altogether different from that used in the Secura policy[.]”).
Specifically, in Flexdar, our supreme court repeatedly emphasized that it was
addressing one specific insurance provision, namely pollution exclusions.
Subsequently, other courts discussing Flexdar have recognized the limited
application of its holding. See, e.g., St. Paul Fire & Marine Ins. Co. v. City of
Kokomo, 2015 WL 3907455, at *5 (S.D. Ind. June 25, 2015) (“Indiana utilizes a
unique approach to determine the applicability of a pollution exclusion in an
insurance policy dispute.”) Accordingly, our courts’ approach to reading
pollution exclusions in general liability policies has no bearing on the
enforcement of the related wrongful acts language in the insurance policy before
us.
[28] It should be noted that the Primary Policy is a claims-based policy, which “links
coverage to the claim and notice rather than the injury.” Paint Shuttle, Inc. v.
Cont’l Cas. Co., 733 N.E.2d 513, 522 (Ind. Ct. App. 2000), trans. denied. “A
claims-made policy protects the holder only against claims made during the life
of the policy.” Id. Consequently, “[t]he notice provision of a claims-made
policy is not simply the part of the insured’s duty to cooperate, it defines the
limits of the insurer’s obligation. If the insured does not give notice within the
contractually required time period, there is simply no coverage under the
policy.” Id. The 2005-2006 Primary Policy includes language that is designed
to cap the insurer’s liability for multiple claims based on the same or
interrelated Wrongful Acts. As such, a finding that the claims brought under
Jenkins are related to the White claims pursuant to the Related Wrongful Act
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language of the 2012-2014 Primary Policy will result in coverage for the Jenkins
claim to be limited to the 2005-2006 Primary Policy’s aggregate liability limit in
effect during White and will not result in a situation where there would be no
insurance coverage; rather, it merely places coverage under the original policy
period in which the claim was first made.
[29] It bears emphasizing again that the Related Wrongful Act of the 2012-2014
Primary Policy is defined as:
Wrongful Acts which are the same, related or continuous, or
Wrongful Acts which arise from a common nucleus of facts.
Claims can allege Related Wrongful Acts regardless of whether
such Claims involve the same or different claimants, Insureds or
legal causes of action.
(Appellant’s App. Vol. II, p. 194). Closely related to this definition is the notice
provision of the 2012-2014 Primary Policy which does not exclude coverage but
aligns notice as to an initial and any subsequent “same or . . . related”
Wrongful Act.
[30] In Gregory v. Home Ins. Co., 876 F.2d 602, 603 (7th Cir. 1989), relied upon by the
Insurers, an attorney wrote a letter concluding that a company’s offering of
video tapes for sale was (1) tax-advantaged, and (2) did not implicate federal
securities law. Both conclusions turned out to be wrong. Id. Various parties
brought suit against the lawyer’s law firm, some regarding only the tax
advantage conclusions, others based on both conclusions. Id. The issue before
the court focused on whether these claims were related for the limits of liability
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under the policy. Id. The Limits of Liability section of the policy provided, in
pertinent part:
Two or more claims arising out of a single act, error, omission or
personal injury or a series of related acts, errors, omissions or
personal injuries shall be treated as a single claim.
Id. at 603-04. To determine whether the various claims were “related” under
the terms of the policy, the Seventh Circuit applied Indiana law and recognized
that “a policy is not made ambiguous simply because the parties disagree on
how it applies to a given situation.” Id. at 605. In its analysis the court found
that the term “relate” was unambiguous, explaining that
The common understanding of the word ‘related’ covers a very
broad range of connections, both causal and logical. However,
we don’t think the rule requiring insurance policies to be
construed against the party who chose the language requires such
a drastic restriction of the natural scope of the definition of the
word ‘related.’ Parties are generally free to include language of
their choice in contracts, and courts should refrain from rewriting
them.
Id. at 606. The court relied on Black’s Law Dictionary to note that ‘related’ is
defined as “having a relationship, connected by reason of an established or
discoverable relation.” Id. at 606 n.5. The Seventh Circuit ultimately
concluded that the claims should be treated as a single claim, subject to the per
claim limit of liability. Id. at 606.
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[31] In Am. Home Assurance Co. v. Allen, 814 N.E.2d 662, 667 (Ind. Ct. App. 2004),
trans. dismissed. this court analyzed the terms ‘interrelated wrongful acts.’ In its
analysis, the court distinguished the Gregory case as it involved “the term
‘related’ as opposed to ‘interrelated.’” Id. at 668. In Gregory, “related” was
defined as a commonly understood term in everyday language and was
therefore not considered ambiguous. Id. at 669. This court then continued:
Here, we observe that the Policy contained the term
‘interrelated,’ not ‘related.’ . . . . [W]e find the term ‘interrelated’
in this insurance policy to be ambiguous. We do so for a number
of reasons. First, unlike the term ‘related,’ ‘interrelated’ has no
common understanding as to its meaning. Second, the Policy
does not define the term. Third, the definition of ‘interrelated’
can be read restrictively or more expansively. The restrictive
definition [] requires mutuality between the wrongful acts while
the broader definition requires only parallelism between the
wrongful acts. Because of the expansiveness of the definition, we
agree [] that the term ‘interrelated’ can be interpreted as elastic
and without practical boundary. Given this ambiguity, we must
strictly construe the term ‘interrelated’ against the insurer. In so
doing, we adopt the restrictive meaning [], which requires a
mutual relationship or connection. We find that there is no
mutuality between the alleged wrongful acts of Guffey. While
the acts all flow from Guffey, the acts do not share any mutuality
or interdependence among themselves. In other words, each
alleged wrongful act does not impact another act that in turn
impacts it.
Id. at 669.
[32] Finding Gregory persuasive, we determine that the Related Wrongful Act
provision is not ambiguous or overbroad and conclude that the White action
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and the Jenkins action presented related claims, as perceived under the Primary
Policies. Both the White and Jenkins action alleged a violation under Section 1
of the Sherman Act, 15 U.S.C. §1, as well as NCAA Bylaw 15, which intends
to cap student-athlete remuneration in violation of the Sherman Act. The White
action contended that, through the NCAA Constitution and the NCAA’s
Bylaws, including Bylaw 15, the NCAA and its members created a horizontal
agreement to artificially cap remuneration to student-athletes to the value of
grant-in-aid. The Jenkins plaintiffs continued to assail the scheme first attacked
by White and claimed that “[t]he short-term settlement in White, which has
since expired, with its class members no longer attending NCAA schools, did
not end the NCAA’s anticompetitive behavior restricting player-
compensation.” (Appellant’s App. Vol. III, p. 138). Jenkins then challenged the
very same framework as White, with specific reference to Bylaw 15:
NCAA Bylaw 15 sets forth “Financial Aid” rules, many of which
impose restrictions on the amount and nature of, and method by
which, remuneration may be provided to athletes . . .
Standing alone, these rules demonstrate a horizontal agreement
among competitors to cap the amount of remuneration schools
may provide athletes for their services, despite how much money
these athletes may generate for their institutions and [the
NCAA].
(Appellant’s App. Vol. III, p. 124). The Jenkins class explicitly alleged these
same Bylaws support the unlawful horizontal agreement alleged in the White
action. While we agree with NCAA’s allegation that White centered on the
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cost-of-attendance gap, whereas Jenkins attacks both rules restricting what
schools can offer student-athletes in the form of scholarships as well as rules
restricting what others can offer students in the form of endorsements and direct
payments, it is clear that both lawsuits essentially focus on the scheme instituted
by Bylaw 15. To this end, the Jenkins action also attacks Bylaws 12 and 13 as
these effectuate NCAA rules restricting remuneration and limiting financial aid
to the grant-in-aid cap in Bylaw 15. Specifically with reference to Bylaw 12, the
Jenkins action alleges that “[t]he NCAA falsely claims that the above-mentioned
grants-in-aid [i.e., Bylaw 15], which are awarded specifically in the basis of
athletic ability, are not to be considered payments[,]” and this is necessary
because Bylaws 12 and 13 prohibit payments to athletes and recruits, such that
Bylaw 15 and grant-in-aid cannot be considered a payment. (Appellant’s App.
Vol. III, pp. 125-26).
[33] Accordingly, the remuneration caps imposed by the NCAA upon student-
athletes under its Bylaws and characterized as a violation of the Sherman
Antitrust Act are the same, related or continuous Wrongful Acts at issue in both
White and Jenkins such as to constitute “Related Wrongful Acts” which
implicate both the Prior Notice Exclusion and the Notice/Claim Reporting
provision. The Wrongful Acts in White and Jenkins are connected through
Bylaw 15 and stem from a common nucleus of facts—the scholarship scheme
imposed on student-athletes. See Gregory, 876 F.2d at 606. Both actions sought
injunctive relief and, although the definition of Related Wrongful Acts
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explicitly allowed for different claimants, the actions were pursued by the same
type of plaintiff—college football and men’s basketball players. 3
[34] Therefore, we conclude that the Jenkins action is a Claim that is considered
made under the 2005-2006 Primary Policy under the Notice/Claim Reporting
provision and alleges Related Wrongful Acts that are excluded under the 2012-
2014 Policies pursuant to those policies’ Prior Notice Exclusion. We affirm the
trial court’s partial summary judgment in favor of the Insurers.
CONCLUSION
[35] Based on the foregoing, we hold that no genuine issue of material fact exists
that the Related Wrongful Acts Exclusion in the NCAA insurance policies bars
coverage for the NCAA in the Jenkins lawsuit.
[36] Affirmed.
Baker, J. and Brown, J. concur
3
In a related argument, the NCAA contends that because it gave notice of White under the 2005-2006
Primary Policy, which was settled by the time the Jenkins class action suit was initiated, the Insurers could
have included specific language in later policies barring coverage for suits challenging compensation
restrictions. However, we adhere to the principle that an insurance company is “free to determine by its
contract what risks it is undertaking to insure, provided policy provisions do not violate statutory mandates
or are against public policy.” Cincinnati Ins. Co. v. Mallon, 409 N.E.2d 1100, 1103 (Ind. Ct. App. 1980).
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