Charter Oak Insurance Co v. Maglio Fresh Food

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 14-4094
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CHARTER OAK INSURANCE COMPANY
v.
MAGLIO FRESH FOODS,
d/b/a
MAGLIO'S SAUSAGE COMPANY;
AMERICAN GUARANTEE AND LIABILITY
INSURANCE COMPANY
Maglio Fresh Food,
Appellant
_____________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 12-cv-03967)
District Judge: Honorable Michael M. Baylson
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Submitted Under Third Circuit LAR 34.1(a)
October 9, 2015
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Before: FUENTES, SMITH and BARRY, Circuit Judges
(Opinion Filed: November 4, 2015)
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OPINION*
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*
This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
BARRY, Circuit Judge
Appellant Maglio Fresh Foods (“Maglio”) appeals the District Court’s grant of
summary judgment and entry of declaratory judgment in favor of Appellee American
Guarantee & Liability Insurance Company (“American Guarantee,” a subsidiary of
Zurich American Insurance Company) on the issue of insurance coverage, and grant of
judgment, following a bench trial, in favor of American Guarantee on Maglio’s claims of
bad faith and breach of contract. Because the Court correctly concluded that American
Guarantee had no duty to defend or indemnify Maglio and properly rejected Maglio’s
claims of bad faith and breach of contract, we will affirm.
I.
Unfortunately, a rather full recitation of the facts and procedural history is
necessary for an understanding of our analysis and ultimate decision. In 2010, Leonetti’s,
a supplier and competitor of Maglio, brought a lawsuit against it in the Court of Common
Pleas of Philadelphia County. Leonetti’s complaint cited several different causes of
action, and the court interpreted the complaint as essentially raising two claims: the
“Maglio brand claim” and the “Forte brand claim.” The “Maglio brand claim” refers to
Leonetti’s claim that after terminating its private label manufacturing agreement with
Leonetti’s and finding a new manufacturer, Maglio continued to use boxes reflecting
product information corresponding to Leonetti’s stromboli, instead of the new
manufacturer’s stromboli. The “Forte brand claim” refers to Leonetti’s claim that Maglio
2
sold stromboli under the “Forte” brand name, despite the fact that Leonetti’s had
purchased and obtained exclusive rights to distribute Forte brand stromboli.
A. The Insurance Policies
In connection with the lawsuit, Maglio sought a defense and indemnity from its
primary insurer, The Charter Oak Fire Insurance Company (“Charter Oak,” a Travelers
company), and its excess and umbrella insurer, American Guarantee.
The Charter Oak policy had a limit of $1,000,000, and covered claims for
“advertising injury,” which included injury arising out of “Oral, written or electronic
publication of material that slanders or libels a person or organization or disparages a
person’s or organization’s goods, products or services . . . .” (App. 614.) It excluded
coverage for advertising injury “arising out of oral or written publication of material, if
done by or at the direction of the insured with knowledge of its falsity.” (App. 496.)
The American Guarantee policy had a limit of $25,000,000, and provided both
excess coverage, incorporating the same terms and conditions as the underlying insurance
(here, the Charter Oak policy), and umbrella coverage pursuant to its own terms. The
terms of the American Guarantee umbrella coverage likewise included coverage for
“advertising injury” and included an identical “knowledge of falsity” exclusion.
The Charter Oak policy provided that it had a duty to defend Maglio against any
suit seeking damages for advertising injury, and that its duty to defend would end when it
had used up the limits of insurance for the payment of judgments or settlements. The
American Guarantee policy stated that it had a duty to defend as an excess carrier “when
3
the applicable limit of underlying insurance has been exhausted by payment of claims for
which coverage is afforded under this policy.” (App. 396.)
B. The Underlying Lawsuit
Charter Oak agreed to defend Maglio with regard to the allegations in the
Leonetti’s complaint subject to a reservation of rights. Charter Oak stated that only the
allegations of “trade libel” were potentially covered as advertising injury under the
policy, and agreed to indemnify Maglio up to its policy limit with respect to that claim
only. In the complaint, the allegations of “trade libel” appeared under Count III, in which
Leonetti’s alleged that “[Maglio] made derogatory, misleading and untrue statements that
would be understood by the average person to denigrate the quality of the stromboli
manufactured and sold by Leonetti’s under the Forte Brand and which would decrease
the value of the Forte Brand.” (App. 1891.) None of the specific “trade libel” allegations
dealt with the facts of the Maglio brand claim.1
American Guarantee, through its parent company, Zurich, acknowledged Maglio’s
claim and corresponded with defense counsel. After receiving counsel’s case analysis
and copies of the pleadings, it determined that the case was unlikely to reach the excess
layer of coverage and closed its file.
In 2011, the lawsuit proceeded to a jury trial on both claims, but a mistrial was
declared as to the Forte brand claim due to a hung jury. Thereafter, on October 3, 2011,
1
The tort of trade libel, in Pennsylvania, arises from “the publication of a disparaging
statement concerning the business of another.” Maverick Steel Co. v. Dick Corp./Barton
Malow, 54 A.3d 352, 354 (Pa. Super. Ct. 2012).
4
the jury returned a verdict in favor of Leonetti’s on the Maglio brand claim, awarding
compensatory damages of $2,000,000 and punitive damages of $555,000.
Following the verdict, Charter Oak confirmed that it would continue to defend
Maglio, pursuant to its reservation of rights, through any post-verdict motions and on re-
trial of the Forte brand claim. American Guarantee was notified of the verdict and
informed Maglio that it had no duty to provide defense or indemnity because Charter Oak
was continuing to provide a defense and because the verdict on the Maglio brand claim
was based on a claim for unfair competition that did not constitute “advertising injury”
within the meaning of either insurance policy.
The court retried the Forte brand claim in December 2011. Prior to completion of
the trial, Charter Oak informed Maglio that it was willing to pay its full $1 million limit
of liability toward a settlement and dismissal with prejudice of all claims. The parties
could not reach an agreement, however, and a jury again found in favor of Leonetti’s,
awarding compensatory damages of $660,000. In January 2012, Charter Oak deposited
its policy limit ($1 million) plus post-judgment interest with the court, in order to halt the
accrual of interest and facilitate settlement.
Settlement discussions ensued between Maglio, Leonetti’s, and the insurers, but
the case remained unresolved. Maglio indicated to its insurers that it lacked the assets
necessary to obtain an appeal bond for the full amount of the judgment, and that it was
therefore considering assigning its rights against the insurers to Leonetti’s. Charter Oak
stated that it would defend Maglio through appeal, subject to its reservation of rights, and
5
offered to pay the cost of an appeal bond up to its policy limit. It also offered to assist
Maglio in obtaining an appeal bond for the balance of the judgment, and continued to
state that its $1 million policy limit remained available for settlement. Meanwhile,
counsel for Maglio, assisted by defense counsel, explored the possibility of obtaining an
appeal bond and determined that it was not financially feasible for Maglio to itself obtain
a bond, due to the company’s financial condition.
In May 2012, the state court denied Maglio’s post-trial motions and Maglio
entered into a settlement agreement and assignment of rights with Leonetti’s, awarding
Leonetti’s $4.5 million and assigning to Leonetti’s its claims against the insurers. In the
agreement, Maglio assigned all of its legal rights and claims arising out of or resulting
from the underlying lawsuit, including “all contractual, extra-contractual, legal, statutory
and equitable claims relating to legal malpractice, insurance, common law bad-faith, and
statutory claims under 42 Pa. C.S.A. § 8371.” (App. 2328.) Under the terms of the
agreement, however, Maglio retained an interest in the outcome of claims against the
insurers: it was entitled to 50% of any amount recovered in excess of $4.5 million, and if
less than $2 million was recovered, it was responsible for paying up to $250,000 to
Leonetti’s. The settlement agreement further stated that it would be “automatically
terminated, rescinded and considered null and void” if Maglio’s insurers agreed to post
an appeal bond before May 18, 2012. (App. 2325.)
Charter Oak thereafter informed Maglio that by entering into the settlement
agreement and assignment of rights, Maglio breached its policy’s “cooperation”
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provision. Neither insurance company, nor Maglio, posted an appeal bond, and the
verdicts were reduced to judgment. On July 16, 2012, the funds that had been deposited
into court by Charter Oak were released to Leonetti’s.
C. The Present Action
On July 12, 2012, Charter Oak brought this action against Maglio, and against
American Guarantee as a “nominal defendant,” seeking a declaratory judgment that
Leonetti’s claims against Maglio in the underlying state court action were not covered
under its policy. American Guarantee brought a cross claim seeking a similar declaratory
judgment, and Maglio brought counter and cross claims for breach of contract and bad
faith against the insurers.
On October 24, 2013, the District Court granted the insurers’ motions for
summary judgment and entered a declaratory judgment in their favor on the issue of
coverage. The Court concluded that neither policy covered the Maglio brand claim
because the only theory of liability presented at trial was “that Maglio knowingly
misrepresented the quality, appearance, and contents of its own products.” (App. 18.) It
observed, as well, that Maglio failed to point to any evidence from the trial that it
disparaged Leonetti’s or its products. The Court held that even if the claim was covered
as “advertising injury,” it was excluded from coverage by the knowledge of falsity
exclusion. Maglio’s broker and sales manager, Richard Taubman, had admitted at trial
that he “knew that the Maglio brand boxes did not accurately represent the product
contained within them and that Maglio misled the public by using those boxes.” (App.
7
19.) The Court concluded that Maglio also failed to meet its burden to show that the
Forte brand claim was covered by the policies.
The litigation proceeded with respect to Maglio’s claims against the insurers.2
Just prior to trial, it was determined that although the parties had been acting under the
assumption that the case was proceeding to a jury trial, in fact Maglio had failed to file a
jury demand as required under Federal Rule of Civil Procedure 38. The docket notation
stating “Jury Demand: Plaintiff” was determined to be a clerical error, acknowledged by
the Clerk’s office, and the docket also indicated that Maglio’s counsel had previously
filed a conference information report in which “non-jury trial” had been checked off.
After this issue was identified, Maglio filed a motion for a jury trial under Federal Rule
of Civil Procedure 39(b).
Following oral argument, the District Court denied Maglio’s motion. Weighing
the factors set forth by us in SEC v. Infinity Gr. Co., 212 F.3d 180, 195-96 (3d Cir.
2000), the Court determined that the issues were not well suited to a jury trial because the
case was “to a . . . significant extent, governed by legal issues.” (App. 3250.) The Court
also observed that Maglio had provided no explanation for its failure to file a jury
demand as required. The Court did, however, decide to proceed with a bench trial solely
2
The Court had denied the insurers’ motions for summary judgment on Maglio’s claims
because it determined that genuine issues of material fact existed, including issues as to
(1) whether American Guarantee met its defense obligations to Maglio during the time
between the first and second verdicts, (2) whether American Guarantee’s obligations to
Maglio changed after Charter Oak tendered its $1 million policy limit, and (3) whether
American Guarantee’s refusal to participate in Maglio’s defense was reasonable.
8
on liability, with a promise to revisit the issue of a jury trial if the case proceeded to a
damages phase.
Charter Oak settled with Maglio just prior to trial, and the District Court held a
bench trial on the claims against American Guarantee. On August 8, 2014, the Court
issued its findings of fact, and, on September 9, 2014, issued its conclusions of law and
verdict, in favor of American Guarantee.
The District Court concluded that Maglio failed to meet its burden to show that
American Guarantee acted in bad faith. It determined that Charter Oak’s tender of its
policy limits in December 2011 did not affect the obligation of American Guarantee to
defend Maglio, because Charter Oak continued to defend and its policy limits had not
been exhausted by the payment of claims. The Court also found that American
Guarantee’s conduct did not lack a reasonable basis, as it continued to be “watchful of its
duty to Maglio” following the Forte brand verdict by hiring coverage counsel and closely
monitoring the underlying action. (App. 55.) It determined, as well, that American
Guarantee had no duty to post an appeal bond because the Charter Oak policy had not
been exhausted by the payment of covered claims.3
This appeal followed.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. § 1332 and we have
3
At this stage of the proceedings, despite the District Court’s October 24, 2013 holding
that Charter Oak’s policy did not cover the Forte brand claims, the parties agreed that
Charter Oak had admitted coverage for the Forte brand verdict.
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jurisdiction pursuant to 28 U.S.C. § 1291. We review a district court’s order granting
summary judgment de novo, applying the same standard as the district court. Post v. St.
Paul Travelers Ins. Co., 691 F.3d 500, 514 (3d Cir. 2012). Summary judgment is
appropriate where “the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. We
review a district court’s findings of fact following a bench trial for clear error, and
exercise plenary review over its conclusions of law. Post, 691 F.3d at 514-15. We
review a district court’s denial of a request for a jury trial under Rule 39(b) for abuse of
discretion. Infinity Gr. Co., 212 F.3d at 195.
III.
On appeal, Maglio contends that the District Court erred in determining that
American Guarantee was not obligated to indemnify it for the underlying verdicts and
erred in rejecting its claims for bad faith and breach of contract.4
4
Maglio also argues that the District Court abused its discretion in denying its motion for
a jury trial, an argument we reject without further discussion. It contends, as well, that it
has standing to prosecute this appeal or, in the alternative, that the Court erred in denying
its petition to join Leonetti’s in the federal court action. Neither party challenges
Maglio’s standing to pursue its claims; however, by virtue of its assignment of rights to
Leonetti’s, one could argue that Leonetti’s, not Maglio, is the real party in interest. See
Fed R. Civ. P. 17(a) (requiring that an action be prosecuted in the name of the “real party
in interest”). In this case, however, Leonetti’s interests are adequately protected by
Maglio. When Maglio (unsuccessfully) moved in the District Court for joinder of
Leonetti’s, it represented that “the interests of Maglio and Leonetti’s are perfectly
aligned, and their claims against the two insurers are identical.” (See Mem. in Support of
Pet. for Joinder, at 2 (Dist. Ct. ECF No. 135).) This continues to be the case. In denying
Leonetti’s motion to intervene (for the first time) on this appeal, we likewise observed
that Leonetti’s “offers no reason to believe that Maglio will not adequately represent its
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A. Coverage
The “well-established rules of insurance contract interpretation” under
Pennsylvania law provide that “[t]he task of interpreting [an insurance] contract is
generally performed by a court rather than by a jury.” 401 Fourth Street, Inc. v. Investors
Ins. Gr., 879 A.2d 166, 171 (Pa. 2005). Interpretation of an insurance policy “is a
question of law over which we exercise plenary review.” Nationwide Life Ins. Co. v.
Commonwealth Land Title Ins. Co., 579 F.3d 304, 307 (3d Cir. 2009). “Under
Pennsylvania law, which applies to this action, we ascertain the intent of the parties by
reading the policy as a whole, and we give unambiguous terms their plain meaning.” Id.;
see 401 Fourth Street, Inc., 879 A.2d at 171.
The plain language of the American Guarantee policy makes clear that neither its
excess nor its umbrella coverage applied to the damages at issue. The October 2011
verdict, totaling $2.5 million, did not result from claims constituting “advertising injury”
within the meaning of either policy, and the December 2011 verdict for $660,000 was
covered by Maglio’s underlying insurance (Charter Oak) within the limits of that policy.
interests in litigating the appeal on the merits.” (Order Denying Mot. to Intervene, at 2.)
In addition, under the terms of the settlement agreement, Maglio retains a financial
interest in the outcome of the claims. For these reasons, we decline to dismiss this appeal
for lack of standing, and find that Maglio is a real party in interest for purposes of Rule
17(a). See HB Gen. Corp. v. Manchester Partners, L.P., 95 F.3d 1185, 1188 (3d Cir.
1996) (referring to the rules of joinder as “flexible, pragmatic federal procedural rules”);
ICON Gr., Inc. v. Mahogany Run Devel. Corp., 829 F.2d 473, 478 (3d Cir. 1987)
(holding that “the essential purposes” of the real-party-in-interest rules of joinder “are to
ensure that a judgment will have res judicata effect . . . and adequately to protect the
interests of absent parties.”).
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As the District Court correctly concluded, the Maglio brand claim—the only claim
adjudicated to verdict in the first state court trial—did not encompass a claim for trade
libel or disparagement of Leonetti’s products.5 The only allegations of disparagement in
Leonetti’s amended complaint corresponded to the Forte brand claim, which only
proceeded to verdict in the second trial. Nevertheless, Maglio contends that the jury in
the first trial could have found that Maglio disparaged Leonetti’s products because the
evidence showed that it placed Leonetti’s product information on inferior stromboli. As
American Guarantee points out, however, there was no evidence at trial that any
consumer ever knew that Leonetti’s made a Maglio stromboli. The theory of liability on
the Maglio brand claim was never that Maglio made disparaging statements about
Leonetti’s stromboli, but that it unfairly competed by making false statements about its
own products. Maglio has failed to point to evidence indicating otherwise.
Even if we were to conclude that the Maglio brand claim fit within the definition
of “advertising injury,” the District Court properly determined that coverage was
excluded under the “knowledge of falsity” exclusion. It is undisputed that Taubman,
Maglio’s broker and sales manager, testified that he knew the Maglio brand boxes
contained false statements and did not accurately represent the product contained within
them. Maglio does not dispute that Taubman acted as its agent with respect to stromboli
sales, but contends that the policy exclusion applies only to actions done “by or at the
5
Because the first verdict did not encompass both covered and non-covered claims,
Maglio’s argument that the lack of specific jury findings as to each precludes American
Guarantee from disclaiming coverage is unavailing.
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direction of the insured,” and that he was not “the insured.” As the Supreme Court of
Pennsylvania has held, however: “A corporation shall be held responsible for the
knowledge which is possessed by those whom it appoints to represent it. From the nature
of its constitution it can have no other knowledge than that of its officers, and, in dealing
with such officers, as with the corporation itself, third parties have a right to consider that
what they know it knows.” Gordon v. Cont’l Cas. Co., 181 A. 574, 577-78 (Pa. 1935);
see also W. C. A. B. v. Evening Bulletin, 445 A.2d 1190, 1192 (Pa. 1982) (“It is well
settled in the law of this jurisdiction that knowledge of an agent, acting within the scope
of his authority, real or apparent, may be imputed to the principal, and therefore,
knowledge of the agent is knowledge of the principal.” (internal citations omitted).)
Because Taubman was an agent of Maglio acting within the scope of his duties, his
knowledge is imputed to the corporation, the named “insured” under both policies.
The District Court did not err in granting summary judgment and a declaratory
judgment in favor of American Guarantee with respect to coverage.
B. Bad Faith
Having concluded that American Guarantee owed Maglio no duty of indemnity, it
is difficult to conceive of how American Guarantee could have acted in bad faith by
failing to defend it. Charter Oak provided Maglio with a defense throughout the
underlying litigation; thus, the only real issue is whether American Guarantee acted in
bad faith by failing to post, or contribute to the posting, of an appeal bond. Maglio
contends that, at the time it sought to appeal the verdicts, there remained a possibility that
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the Maglio brand verdict could be covered under the American Guarantee policy, and that
American Guarantee therefore acted in bad faith by failing to post a bond. As we have
elsewhere observed, however, it is a “rare” case in which an insurer is liable for bad faith
when there is no duty to provide coverage, see Post, 691 F.3d at 524, and, because
American Guarantee had a reasonable basis for its conduct with respect to Maglio, this is
not one of those rare cases.6 See Amica Mut. Ins. Co. v. Fogel, 656 F.3d 167, 179 (3d
Cir. 2011) (“[A]n insurer may defeat a claim of bad faith by showing that it had a
reasonable basis for its actions.”).
The language of the American Guarantee policy provided that it had a duty to
defend “when the applicable limit of underlying insurance has been exhausted by
payment of claims for which coverage is afforded under this policy.” (App. 396.) Here,
the District Court correctly determined that the limits of the Charter Oak policy were
never “exhausted by payment of claims for which coverage is afforded.” Although
Charter Oak offered and ultimately paid its $1 million policy for settlement, it only
admitted coverage for the Forte brand verdict ($660,000), which did not exceed the
policy limit. Because the limit of the Charter Oak policy was never exhausted by the
payment of covered claims, the defense provision of the American Guarantee policy was
never triggered. Throughout the relevant time period, American Guarantee acted
6
Because the District Court correctly concluded that Maglio’s bad faith claim failed
because Maglio could not prove that American Guarantee lacked a reasonable basis for
its actions, we need not address the Court’s alternative holding that Maglio’s claim also
failed because it did not prove that American Guarantee acted out of self-interest or ill
will.
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reasonably in assessing Maglio’s claim, investigating the claim, continuing to monitor the
events of the underlying action, and hiring counsel to provide guidance as to its
obligations. The Court correctly concluded that Maglio failed to show that American
Guarantee acted in bad faith or breached its contract with Maglio.7
The District Court’s entry of judgment as to the bad faith and breach of contract
claims will be affirmed.
IV.
For the reasons stated above, we will affirm.
7
Maglio contends that the District Court misconstrued its breach of contract claim and
erred in failing to rule on it. The Court construed the contract claim to be a claim for
breach of the implied covenant of good faith and fair dealing, while Maglio states that its
claim was a “pure” contract claim for breach of the policy’s express language. While
Maglio correctly points out that the legal standard applicable to a breach of contract claim
differs from the legal standard applicable to a bad faith claim, the Court’s rulings with
respect to American Guarantee’s duties of indemnity and defense make clear that the
Court determined, based on its interpretation of the contractual language, that American
Guarantee had not breached a duty to Maglio. The Court’s findings and determinations
conclusively resolved Maglio’s “pure” breach of contract claim, as well as its claims for
common law and statutory bad faith.
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