Camico Mutual Insurance Co. v. Hess, Stewart & Campbell, P.L.L.C.

240 F. Supp. 3d 476, 2017 WL 926770, 2017 U.S. Dist. LEXIS 32790
District Court, S.D. West Virginia·Decided March 8, 2017·No. CIVIL ACTION NO. 3:16-2357·Published·Cited by 2 cases

Opinion

MEMORANDUM OPINION AND ORDER

ROBERT C. CHAMBERS, CHIEF JUDGE

Plaintiff CAMICO Mutual Insurance Company filed this declaratory action against Defendant Hess, Stewart & Campbell, PLLC., asking this Court to find it has no obligation to defend or indemnify Defendant for claims arising out of the activities of one of Defendant’s employees beyond a single $100,000 sub-limit in the policy. In Defendant’s Amended Answer and Counterclaim, Defendant opposes Plaintiffs request and asks this Court to declare that Plaintiff must pay Defendant “past and future general and special damages, aggravation, and inconvenience as well as attorney’s fees, costs, and expenses, net economic loss occasioned by the delay, statutory damages, and prejudgment and post-judgment interest[.]” Am. Answer and Countercl., at 8, ECF No. 9. The parties have filed cross-motions for summary judgment. ECF Nos. 19 & 21. For the following reasons, the Court DENIES, IN PART, and GRANTS, IN PART, both motions.

I.

FACTUAL AND PROCEDURAL HISTORY

The underlying facts of this case are not in dispute. Defendant provides professional bookkeeping, accounting, and tax-related services and operates as a Professional Limited Liability Company (PLLC) under West Virginia law. In late 2015, Defendant became aware of discrepancies in the accounts of some of its clients. An internal investigation was performed, and it was discovered that one of Defendant’s employees (referred to as Jane Doe) misappropriated assets from at least as early as October 2010 through September 2015.1 Multiple clients have claims against Defendant, and Defendant gave timely notice of the claims to Plaintiff, its insurer. Plaintiff accepted notice of the claims, but issued Reservation of Rights Letters dated October 18, 2015, January 11, 2016, and March 11,2016.

[479] In the letter dated October 18, 2015, Plaintiff agreed to defend Defendant against the potential claims, subject to limitations set forth in the letter and a “reservation of the right to. assert the $100,000 Sub-Limit of Liability applicable to Claims arising from misappropriation, misuse, theft, or embezzlement of funds.” Letter from Elizabeth M. Cauldwell of CAMICO to Eli Wilson of Hess, Stewart & Campbell, PLLC, at 4, ECF No. 20-2 (Oct. 18, 2015) (italics original). In the letter dated January 11, 2016, Plaintiff renewed its reservation of rights, but agreed to provide Defendant a $100,000 sub-limit as an aggregate maximum amount for both indemnification and defense. Letter from Mark Aubrey of CAMICO to James D. Lamp on behalf of Hess, Stewart & Campbell, PLLC at 4, ECF No. 20-3 (Jan. 11, 2016). Similarly, in the March 11, 2016 letter, Plaintiff agreed to pay up to $100,000, but reserved its right to contest any request by. Defendant for additional coverage for indemnification and/or defense under the policy. Letter from Susan Snoivden of behalf of CAMICO to James D. Lamp on behalf of Hess, Stewart & Campbell, PLLC at 1, ECF No. 32-2 (Mar. 11, 2016). In their cross-motions, Plaintiff and Defendant sharply disagree as to the amount of coverage, if any, that is available under the policy.

II.

STANDARD OF REVIEW

, To obtain summary judgment, the moving party must show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In considering a motion for summary judgment, the Court will not “weigh the evidence and determine the truth of the matter!)]” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Instead, the Court will draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 476 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Although the Court will view all underlying facts and inferences in the light most favorable to %e nonmoving party, the non-moving party nonetheless must offer some “concrete evidence from which a reasonable juror could return a verdict in his [or her] favor[.]” Anderson, 477 U.S. at 256, 106 S.Ct. 2605. Summary judgment is appropriate when the nonmoving party has the burden of proof on an essential element of his or her case and does not make, after adequate time for discovery, a showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmoving party must satisfy this .burden of proof by offering more than a mere “scintilla of evidence” in support of his or her position. Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

m.

DISCUSSION

Free access — add to your briefcase to read the full text and ask questions with AI

Camico Mutual Insurance Co. v. Hess, Stewart & Campbell, P.L.L.C., 240 F. Supp. 3d 476, 2017 WL 926770, 2017 U.S. Dist. LEXIS 32790 (S.D.W. Va. 2017).

240 F. Supp. 3d 476 (Camico Mutual Insurance Co. v. Hess, Stewart & Campbell, P.L.L.C.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related