O'Neill v. Kemper Insurance Companies

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0292p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellant, -
DEBORAH P. O’NEILL,
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No. 06-4416
v.
,
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KEMPER INSURANCE COMPANIES and LUMBERMEN’S -
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Defendants-Appellees. -
MUTUAL CASUALTY COMPANY,
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Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 04-01135—Edmund A. Sargus, Jr., District Judge.
Argued: July 17, 2007
Decided and Filed: August 2, 2007
Before: MARTIN and McKEAGUE, Circuit Judges; GREER, District Judge.*
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COUNSEL
ARGUED: Lawrence J. Greger, Dayton, Ohio, for Appellant. Wilson G. Weisenfelder, Jr.,
RENDIGS, FRY, KIELY & DENNIS, Cincinnati, Ohio, for Appellees. ON BRIEF: Lawrence J.
Greger, Dayton, Ohio, for Appellant. Wilson G. Weisenfelder, Jr., RENDIGS, FRY, KIELY &
DENNIS, Cincinnati, Ohio, for Appellees.
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OPINION
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BOYCE F. MARTIN, JR., Circuit Judge. Deborah P. O’Neill brought an action against
Kemper Insurance Companies and Lumbermen’s Mutual Casualty Company alleging four claims
for relief: (1) declaratory judgment as to the issue of reimbursement for attorneys’ fees, costs and
expenses under a professional liability insurance policy, (2) breach of contract, (3) bad faith, and
(4) promissory estoppel. O’Neill moved for partial summary judgment on her claim for breach of
contract. Defendants opposed her motion and moved for summary judgment on all of her claims.
The district court denied O’Neill’s motion and granted defendants’ motion. We now AFFIRM.
*
The Honorable J. Ronnie Greer, United States District Judge for the Eastern District of Tennessee, sitting by
designation.
1
No. 06-4416 O’Neill v. Kemper Insurance Cos., et al. Page 2
I.
The district court adequately laid out the facts in its decision and order granting summary
judgment to defendants:
This action arises as a result of proceedings before the Ohio Supreme Court’s
Board of Commissioners on Grievances and Discipline. Plaintiff held the position
of Common Pleas Judge for Franklin County, Ohio from 1992 to 2004. On January
19, 2001, the Office of Disciplinary Counsel for the Ohio Supreme Court sent a
Letter of Inquiry to Plaintiff regarding fourty-four (44) alleged instances of judicial
misconduct. The law firm of Bieser, Greer & Landis, LLP was retained to represent
Plaintiff in the disciplinary matter. Plaintiff, through counsel, responded to the
January 19, 2001 letter. On June 14, 2001, the Disciplinary Counsel issued a second
Letter of Inquiry setting forth an additional five (5) alleged instances of judicial
misconduct. Plaintiff’s counsel responded to the second letter on July 25, 2001. A
Draft Complaint was issued to Plaintiff on March 8, 2002 and Plaintiff responded on
May 23, 2002. Revisions to the complaint were made in May 2002 and a formal
Complaint was filed with the Board of Commissioners on Grievances and Discipline
on June 18, 2002. Plaintiff filed a formal response to the Complaint on July 8, 2002.
A third Letter of Inquiry was issued on July 23, 2002, setting forth additional
instances of alleged judicial misconduct. An Amended Complaint was filed on
November 20, 2002 with the Board of Commissioners on Grievances and Discipline.
The Amended Complaint was comprised of six counts and fifty-five (55)
instances of alleged misconduct. Count I charged Plaintiff with improper ex parte
communications, failure to appropriately exercise judicial discretion and failure to
follow the law. Count II charged Plaintiff with improper refusal to allow attorneys
to reserve [sic] objections on the record. Count III charged Plaintiff with improper
denial of continuances without the exercise of judicial discretion. Count IV charged
Plaintiff with making misrepresentations to lawyers, judges and court personnel in
the course of her duties. Count V charged Plaintiff with committing acts
demonstrating judicial intemperance. Count VI charged Plaintiff with improper use
of county resources and personnel for her 2002 campaign for a seat on the Franklin
County Court of Appeals. Plaintiff responded to the Amended Complaint on January
15, 2003. A hearing on the allegations contained in the Amended Complaint was
conducted over a nineteen day period and included the testimony of over one
hundred witnesses.
The Board of Commissioners on Grievances and Discipline found against
Plaintiff on four of the six counts[fn1] and suspended Plaintiff’s license to practice
law in the State of Ohio for two years. The matter was later heard by the Ohio
Supreme Court. On September 7, 2004, the Ohio Supreme Court affirmed the
findings made by the Board and suspended Plaintiff’s license to practice law for two
years with one year stayed, on certain conditions.
Throughout the disciplinary proceedings, Plaintiff was represented by David
Greer, of the firm Bieser, Greer & Landis, LLP, in Dayton, Ohio. Greer’s hourly rate
was $175.00. The total charges for representing Plaintiff were in excess of
$580,000.00. In her capacity as a Franklin County Common Pleas Judge Plaintiff
was covered by a policy of insurance issued by Defendants. The policy provides, in
pertinent part:
A. WHAT WE COVER
Subject to all terms and conditions of this policy, we will pay
on your behalf all damages and claim expenses arising out of a claim
No. 06-4416 O’Neill v. Kemper Insurance Cos., et al. Page 3
which you first become aware of and you report to us in writing
during the policy period.
B. DEFENSE AND SETTLEMENT
We will provide for the defense of claims against you that are
covered by this policy even if the allegations against you are
groundless, false or fraudulent.
We will not settle any claim without your consent. However,
you must communicate to us, within a reasonable period of time, your
consent or objection to any claim settlement which we propose to
make. If you object to any claim settlement we propose to make, you
and we will, within 15 days of your objection, present our respective
position to an arbitrator selected by the Supreme Court and be guided
by his opinion regarding the claim settlement.
* * *
D. DEFINITIONS
Whenever used in this policy, the term:
1. Claim means:
a. Any demand received by you for money arising out of your
acts, errors, or admission in your judicial, ministerial, administrative
or managerial capacity; or
b. Any allegations against you brought by an official
disciplinary committee, judicial competence committee or other
similar official committee of inquiry in disciplinary procedures.
Section D.1.b was replaced by the following Endorsement:
By this endorsement you and we agree that policy provision D.1.b is
deleted in its entirety and replaced by the following:
b. Any allegations against you brought by an official
disciplinary committee, judicial competence committee or other
similar official committee of inquiry in disciplinary procedures, in
[sic] connection with any such proceedings, our obligation under this
policy is limited to reimbursing you for attorneys’ fees and other
reasonable costs, expenses or fees resulting from the investigation or
defense of any such proceeding and then only in the event the
allegations brought against you are dismissed or discontinued without
a finding of fault or guilt on your part.
All other terms and conditions of this policy remain unchanged.
[fn1]As to Counts II and III, there were no findings of misconduct.
Sept. 27, 2006 Order, Joint App’x 222-225 (alteration of policy language in order).
No. 06-4416 O’Neill v. Kemper Insurance Cos., et al. Page 4
II.
A. Standard of Review
This Court reviews a district court’s grant of summary judgment de novo, and “must view
the facts and any inferences that can be drawn from those facts . . . in the light most favorable to the
nonmoving party.” Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881, 886 (6th Cir. 2007)
(internal quotation marks omitted). “Summary judgment is only appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” Id. (quoting Fed. R. Civ. P. 56(c)) (internal quotation marks
omitted). “Weighing of the evidence or making credibility determinations are prohibited at
summary judgment – rather, all facts must be viewed in the light most favorable to the non-moving
party.” Id.
B. O’Neill’s Claim for Partial Reimbursement for Attorneys’ Fees and Costs Under the
Professional Liability Insurance Policy
Both parties agree that the language of the policy is the fundamental issue here. We must
decide whether the language allows for partial reimbursement of attorneys’ fees and costs prorated
to the number of allegations an insured prevails on, as O’Neill contends, or whether it requires an
insured to prevail on all allegations contained in one disciplinary proceeding in order to collect, as
defendants argue.
In Ohio, the construction of contracts is a matter of law. See Long Beach Ass’n, Inc. v.
Jones, 697 N.E.2d 208, 209 (Ohio 1998). “In construing the terms of any contract, the principal
objective is to determine the intention of the parties.” Hamilton Ins. Serv., Inc. v. Nationwide Ins.
Cos., 714 N.E.2d 898, 900 (Ohio 1999). If the contract terms are clear and unambiguous, no
interpretation or construction is necessary and the terms will be given the effect called for by the
plain language of the contract. See Davis v. Loopco Indus., Inc. 609 N.E.2d 144, 145 (Ohio 1993).
“A contract does not become ambiguous by reason of the fact that in its operation it will work a
hardship upon one of the parties thereto.” Foster Wheeler Enviresponse, Inc. v. Franklin County
Convention Facilities Auth., 678 N.E.2d 519, 526-27 (Ohio 1997) (quoting Ohio Crane Co. v. Hicks,
143 N.E. 388, 389 (Ohio 1924)) (internal quotation marks omitted).
The policy at issue provides that “all damages and claim expenses arising out of a claim” will
be paid. A claim is defined in Section D.1.b, as modified by the Contingent Disciplinary Coverage
Endorsement discussed above, as
(b) Any allegations against you brought by an official disciplinary committee,
judicial competence committee or other similar official committee of inquiry
in disciplinary procedures. In connection with any such proceedings, our
obligation under this policy is limited to reimbursing you for attorneys’ fees
and other reasonable costs, expenses or fees resulting from the investigation
or defense of any such proceeding and then only in the event the allegations
brought against you are dismissed or discontinued without a finding of fault
or guilt on your part.
Both parties agree that the interpretation of section D.1.b governs the outcome of defendants’ motion
for summary judgment on all of plaintiff’s causes of action other than her allegation of promissory
estoppel.
O’Neill argues that the use of the term “any” modifies the term “allegations,” and therefore,
under D.1.b, the policy requires defendants to reimburse insureds for any allegations which are
No. 06-4416 O’Neill v. Kemper Insurance Cos., et al. Page 5
“dismissed or discontinued without a finding of fault or guilt.” Appellant’s Br. 13, 16-17.
Defendants counter that the section “only provides for reimbursement of attorney fees and expenses
if the allegations are dismissed without a finding of fault or guilt,” and O’Neill cannot dispute that
she was found guilty on four of six counts brought against her. Appellees’ Br. 4, 5.
The district court correctly interpreted the policy. According to section D.1.b’s plain
language, the singular term “claim” encompasses all allegations brought in a disciplinary
proceeding. The section goes on to limit reimbursement of any “claim” to only a “proceeding” in
which “the allegations brought against you are dismissed or discontinued without a finding of fault
or guilt on your part.” This language is clear and unambiguous, and provides for reimbursement
of expenses only if a “claim” – i.e., the allegations in a disciplinary proceeding – is dismissed or
discontinued without a finding of fault.
The Office of Disciplinary Counsel for the Ohio Supreme Court ultimately filed an amended
complaint with the Board of Commissioners on Grievances and Discipline against O’Neill. That
complaint contained six counts of alleged misconduct, supported by 55 factual allegations. After
a nineteen-day hearing, the Board found O’Neill guilty of four of the six counts of alleged
misconduct. The Board’s decision was later affirmed by the Ohio Supreme Court. For purposes of
the policy, this action comprised one “claim.” In other words, it was a single proceeding that
included multiple allegations. Under section D.1.b, all of “the allegations” brought against O’Neill
in this proceeding must have been dismissed or discontinued without a finding of guilt in order to
qualify for reimbursement. They were not, and under the plain language of the policy, she is not
entitled to reimbursement.
Because we find the language of the policy to be plain and unambiguous, there is no need
to address the extrinsic evidence offered by defendants. See Schifrin v. Forest City Enterprises, Inc.,
64 Ohio St. 3d 635, 637, 597 N.E.2d 499, 501 (Ohio, 1992) (“Only when the language of a contract
is unclear or ambiguous, . . . will extrinsic evidence be considered . . .”).
C. Summary Judgment as to O’Neill’s Promissory Estoppel Claim
O’Neill argues that defendants’ motion for summary judgment should not have been granted
with regard to her claim for promissory estoppel. She argues that, if given adequate time to conduct
discovery, coupled with facts already alleged, she will be able to present a colorable claim of
promissory estoppel to a fact-finder. The district court granted summary judgment to defendants
reasoning that, based on the facts already alleged, O’Neill had not presented any evidence that
defendants had promised to pay her attorneys’ fees on a percentage basis. The district court
additionally held that O’Neill’s claim for promissory estoppel directly contradicts the plain and
unambiguous terms of the policy, and Ohio law does not allow promissory estoppel in such
circumstances.
We believe the district court properly granted summary judgment to defendants on O’Neill’s
promissory estoppel claim. In Ohio, “[w]here the parties have an enforceable contract and merely
dispute its terms, scope, or effect, one party cannot recover for promissory estoppel . . . .” Terry
Barr Sales Agency, Inc. v. All-Lock Co., Inc., 96 F.3d 174, 181 (6th Cir. 1996) (citing Cloverdale
Equip. Co. v. Simon Aerials, Inc., 869 F.2d 934, 939 (6th Cir. 1989)). Neither party disputes the fact
that an enforceable contract exists and governs the substance of this lawsuit. Accordingly, O’Neill
cannot mount a claim for promissory estoppel that directly contradicts the language of that contract.
See Cloverdale, 869 F.2d at 940; see also Ed Schory & Sons, Inc. v. Society National Bank, 75 Ohio
St.3d 433, 439-40, 662 N.E.2d 1074, 1080 (Ohio, 1996) (holding that parol evidence rule prohibits
extrinsic evidence of other promises made in contravention of the express terms of a written contract
thus barring claims for promissory estoppel where an express contract exists).
No. 06-4416 O’Neill v. Kemper Insurance Cos., et al. Page 6
III.
For the foregoing reasons we AFFIRM the district court’s grant of defendants’ motion for
summary judgment as to all of O’Neill’s claims, and AFFIRM the district court’s denial of
O’Neill’s motion for partial summary judgment.