Enterasys v . Clarendon Insurance 04-CV-027-SM 08/29/06 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Enterasys Networks, Inc., Plaintiff
v. Civil N o . 04-cv-27-SM Opinion N o . 2006 DNH 098 Clarendon National Insurance Co., Defendant
O R D E R
After settling a securities class action suit by agreeing to
pay class members a combination of cash and stock, Enterasys
Networks, Inc. brought this suit against various insurance
carriers seeking coverage for the losses associated with the
settlement. The complaint advances four causes of action: one
for declaratory judgment of coverage, pursuant to N.H. Rev. Stat.
Ann. (“RSA”) 491:22 (count o n e ) ; a breach of contract claim
(count t w o ) ; a claim of breach of the implied duty of good faith
and fair dealing (count three); and one for violation of various
provisions of the New Hampshire Consumer Protection Act, RSA ch.
358-A (count four). By prior order, the court granted
defendants’ motion to dismiss Enterasys’ claims under the
Consumer Protection Act. Enterasys Networks, Inc. v . Gulf Ins.
Co., 364 F. Supp. 2d 28 (D.N.H. 2005). With the exception of Clarendon National Insurance Co., all
other defendant insurance carriers named in Enterasys’ suit have
settled. Pending before the court is Clarendon’s motion for
summary judgment as to all remaining claims in Enterasys’
complaint. For the reasons set forth below, Clarendon’s motion
is granted.
Standard of Review
When ruling on a party’s motion for summary judgment, the
court must “view the entire record in the light most hospitable
to the party opposing summary judgment, indulging all reasonable
inferences in that party’s favor.” Griggs-Ryan v . Smith, 904
F.2d 1 1 2 , 115 (1st Cir. 1990). Summary judgment is appropriate
when the record reveals “no genuine issue as to any material fact
and . . . the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c). In this context, “a fact is
‘material’ if it potentially affects the outcome of the suit and
a dispute over it is ‘genuine’ if the parties’ positions on the
issue are supported by conflicting evidence.” Intern’l Ass’n of
Machinists & Aerospace Workers v . Winship Green Nursing Ctr., 103
F.3d 196, 199-200 (1st Cir. 1996) (citations omitted).
2 Nevertheless, if the non-moving party’s “evidence is merely
colorable, or is not significantly probative,” no genuine dispute
as to a material fact has been proved, and “summary judgment may
be granted.” Anderson v . Liberty Lobby, Inc., 477 U.S. 2 4 2 , 249-
50 (1986) (citations omitted). The key, then, to defeating a
properly supported motion for summary judgment is the non-
movant’s ability to support his or her claims concerning disputed
material facts with evidence that conflicts with that proffered
by the moving party. See generally Fed. R. Civ. P. 56(e). It
naturally follows that while a reviewing court must take into
account all properly documented facts, it may ignore bald
assertions, unsupported conclusions, and mere speculation. See
Serapion v . Martinez, 119 F.3d 9 8 2 , 987 (1st Cir. 1997).
Background
Enterasys purchased several layers of insurance coverage
from various insurance companies. Lloyd’s of London issued the
primary policy, which provided coverage for: (1) “Directors and
Officers Loss resulting from any Claim first made against the
Directors and Officers during the Certificate Period for an
Individual Act,” (2) “Company Loss which the Company is required
or permitted to pay as indemnification to any of the Directors
and Officers resulting from any Claim first made against the
3 Directors and Officers during the Certificate Period for an
Individual Act,” and (3) “Company Loss resulting from any Claim
first made against the Company during the Certificate Period for
a Corporate Act.” A “Claim” is defined in the primary policy to
include “any civil, criminal, administrative or regulatory
proceeding initiated against [Enterasys], including . . . any
formal investigatory proceeding before the Securities and
Exchange Commission.” And, finally, an endorsement to the
primary policy defines “Loss” as “damages, judgments,
settlements, Costs, Charges and Expenses.” The excess policies
provide, with minor exceptions, that they are subject to the same
insuring clauses, definitions, terms, conditions, exclusions and
other provisions as those set forth in the Lloyd’s primary
policy.
The various layers of insurance coverage were provided by
the following entities:
1. Lloyd’s: Primary policy, with coverage up to $15 million (subject to a $500,000 deductible);
2. AIG: $5 million of coverage in excess of first $15 million;
3. Twin City: $10 million of coverage in excess of first $20 million;
4 4. Lloyd’s: $10 million of coverage in excess of first $30 million;
5. Gulf: $10 million of coverage in excess of first $40 million; and
6. Clarendon: $10 million of coverage in excess of first $50 million.
When Enterasys filed this action, none of the insurers had
affirmatively acknowledged its obligation to provide coverage for
the underlying consolidated class action suit. Eventually,
however, Enterasys settled with most of the carriers. Lloyd’s
provided full coverage under the primary policy ($15 million).
AIG also provided coverage to the full limits of its policy ($5
million). Twin City provided $7.5 million on its policy, with
Enterasys agreeing to absorb the balance of the policy limit
(i.e., $2.5 million). As to its second policy, Lloyd’s provided
$7 million in coverage, and Enterasys agreed to absorb the
balance of the policy limit (i.e., $3 million). And, most
recently, Enterasys settled with Gulf for an undisclosed amount.
What remain, then, are Enterasys’ claims against Clarendon -
the insurer providing coverage for up to $10 million in defined
losses in excess of $50 million. Interestingly, however, the
total loss Enterasys claims to have sustained amounts to less
than $45 million. Thus, Clarendon’s obligation to provide
5 coverage has not yet been triggered. And, since the underlying
securities litigation appears to have been resolved, it is
unclear how Enterasys might incur additional covered losses.
Enterasys does, however, hint at the possibility in its
memorandum, noting that the SEC has yet to close its
investigation into the conduct of 12 former Enterasys directors
and officers. Although Enterasys does not elaborate on the
point, it is conceivable that Enterasys might one day incur
covered damages that exceed $50 million, thus implicating
Clarendon’s policy.
Discussion
I. Count One - Declaratory Judgment.
In support of its motion for summary judgment, Clarendon
asserts that Enterasys’ petition for declaratory judgment (count
one) was not timely filed. The governing state statute provides,
in relevant part, that:
No petition shall be maintained under this section to determine coverage of an insurance policy unless it is filed within 6 months after the filing of the writ, complaint, or other pleading initiating the action which gives rise to the question; provided, however, that the foregoing prohibition shall not apply where the facts giving rise to such coverage dispute are not known t o , or reasonably discoverable by, the insurer until after expiration of such 6-month period; and provided, further, that the superior court may permit
6 the filing of such a petition after such period upon a finding that the failure to file such petition was the result of accident, mistake or misfortune and not due to neglect.
RSA ch. 491:22 III. Clarendon points out that the original class
action suits underlying this coverage dispute were filed between
February and April of 2002. 1 And, because Enterasys did not file
this declaratory judgment action until March 1 0 , 2003 (i.e., more
than 13 months after the first class action suit), Clarendon says
it is untimely.
Enterasys responds with two arguments. First, it says the
six original class action suits filed in the spring of 2002 were
simply “placeholder” suits, “set down by various plaintiffs’
class action law firms and that the real complaint setting forth
the true breadth of the action would likely come following
factual developments as a result of the SEC investigation.”
Plaintiff’s memorandum (document n o . 63) at 5 . According to
Enterasys, the amended complaint in the consolidated action
“reflected a new and materially different class action,” id. at
6, which added several new defendants, expanded the class period,
1 Originally, there were six separate class action suits against Enterasys arising out of the same core of operative facts. In September of 2002, those actions were consolidated into Roth v . Enterasys Networks, Inc., N o . 02-cv-71-SM (D.N.H.).
7 and added new allegations of improper accounting practices on the
part of Enterasys. Consequently, says Enterasys, the relevant 6-
month limitations period did not begin to run until the filing of
that amended complaint.
In support of that position, Enterasys relies on the New
Hampshire Supreme Court’s opinion in Binda v . Royal Ins. Co., 144
N.H. 613 (2000). In that case, the original complaint in the
underlying tort action alleged that the plaintiff had been
injured as a result of the insured’s intentional conduct -
conduct that was, unquestionably, not covered by the insured’s
policy. Only when the plaintiff amended his complaint to allege
that he had been injured by the insured’s negligent conduct, did
it arguably implicate the insured’s policy. Accordingly, the
court concluded that the statutory limitations period applicable
to the insured’s declaratory judgment action against his insurer
did not begin to run until the amended complaint was filed. Id.
at 619 (“[A]n amended writ triggers a new six-month limitations
period under RSA 491-22, III when new factual or legal
allegations change the cause of action in a manner that raises a
coverage issue for the first time.”) (emphasis supplied).
8 Here, however, the principle articulated in Binda is not
applicable because the so-called “placeholder” class action suits
plainly alleged wrongful conduct on the part of Enterasys that
implicated coverage under all of the policies, including the one
issued by Clarendon. Each of those complaints alleged that
Enterasys had engaged in an improper accounting scheme,
fraudulent revenue recognition practices, and various “channel
stuffing” activities (facilitated by the company’s practice of
recognizing revenue upon shipment of products to its
distributors). To be sure, the amended complaint added new
defendants, broadened the scope of the class period, and alleged
additional wrongful conduct on the part of Enterasys that was not
mentioned in the original complaints. Nevertheless, the basic
causes of action remained the same and arose from the same common
set of operative facts. In other words, the amended complaint in
the consolidated class action did not “change the cause of action
in a manner that raise[d] a coverage issue for the first time.”
Binda, 144 N.H. at 619. See also Mottolo v . U.S. Fidelity &
Guar. Co., 127 N.H. 279, 284 (1985) (“This argument [i.e., that
the limitations period began to run from the filing of a
subsequent indemnity action, rather than the underlying tort
action] ignores the common set of operative facts from which both
the indemnity action and the original suit in equity spring:
9 . . . [When the original tort action was filed] all those facts
were in place, from which [the insured] could have deduced that
his insurance coverage was a major issue.”).
Similarly, when the original class action complaints were
filed in the spring of 2002, Enterasys knew (or certainly should
have known) that the allegedly wrongful conduct described in
those complaints implicated coverage under all of its insurance
policies, including Clarendon’s. Accordingly, the six-month
limitations period began to run upon the filing of the original
class action suits (i.e., the so-called “placeholder” suits), not
the subsequently-filed amended complaint in the consolidated
class action suit.
Enterasys’ second argument fares no better. It seems to
claim that, until the amended complaint was filed in the
consolidated class action suit, it had little reason to suspect
that losses might be so substantial as to implicate coverage
under Clarendon’s policy (which provides coverage for losses in
excess of $50 million). See Plaintiff’s memorandum at 8 . That
argument, while having some appeal, lacks any legal basis.
Enterasys has not pointed to any precedent in which the New
Hampshire Supreme Court has held that the six-month statutory
10 limitations period is tolled until the insured reasonably
suspects that damages might be sufficient to implicate insurance
coverage (e.g., large enough to exhaust a deductible or to
implicate overage policies). Rather than focusing on the amount
of potential damages at issue, the court has uniformly focused on
the alleged conduct of the insured and whether such conduct is
arguably covered by his or her policy.
In this case, the original class action lawsuits plainly
alleged conduct on the part of Enterasys and its corporate
officers which implicated coverage under the Clarendon policy.
Accordingly, any suit seeking a declaration of Clarendon’s
obligations under that policy had to be filed within six months.
It was not. Consequently, Clarendon is entitled to judgment as a
matter of law as to count one of Enterasys’ complaint.
It i s , perhaps, appropriate to note that the dismissal of
Enterasys’ claim for declaratory judgment does not adversely
affect Enterasys in any meaningful way. Should its covered
losses accumulate sufficiently to implicate Clarendon’s policy,
and should Clarendon wrongfully deny coverage for those losses,
Enterasys is not barred from pursuing its contract breach or
other legal remedies at that time.
11 While declaratory judgment actions may be an efficient procedure for determining the scope of insurance coverage, such actions are not mandatory. As such, when a declaratory judgment action is dismissed for failure to file timely, the parties are not collaterally estopped from litigating policy coverage issues in another action because, although rulings in declaratory judgment actions are conclusive, this is only true as to any issues actually litigated by the parties and determined in the action.
Craftsbury C o . v . Assurance C o . of Am. , 149 N.H. 7 1 7 , 721 (2003)
(citation and internal punctuation omitted).
II. Count Two - Breach of Contract
When it originally filed this action, Enterasys claimed
Clarendon breached the terms of the policy by refusing to
acknowledge its duty to provide coverage. In response, Clarendon
raised several defenses, including the assertion that it had no
obligation to provide coverage because Enterasys failed to
demonstrate it had incurred sufficient covered losses to
implicate Clarendon’s policy. As an additional defense,
Clarendon argued that because Enterasys settled some of its
claims against underlying insurers for less than the full policy
limits, it failed to comply with the requirement that it exhaust
all underlying insurance coverage before making a claim against
Clarendon. Although it has not moved to amend its complaint,
12 Enterasys now points to those interposed defenses as further
support for its claim that Clarendon breached its contract (or,
perhaps more accurately, that Clarendon repudiated its coverage
obligations under the contract).
Even assuming Enterasys’ anticipatory repudiation claim were
properly before the court, it would fail as a matter of law.
Merely defending against an insured’s declaratory judgment action
(i.e., by asserting that the insured is not entitled to coverage)
does not constitute an anticipatory repudiation of the insurance
contract. As the United States District Court for the Southern
District of New York has noted:
[A] claim of anticipatory repudiation is proper only where the repudiating party has indicated an unequivocal intent to forego performance in the form of a definite and final communication. The assertion of an affirmative defense does not constitute such a communication. The defendant-insurers have not indicated that they will refuse, should they be found liable to indemnify [the insured] in this action, to provide such coverage once the underlying insurance is exhausted.
Maryland Cas. C o . v . W.R. Grace & Co., 1996 WL 306372 at *1
(S.D.N.Y. June 7 , 1996) (citations and internal punctuation
omitted). See also LeTarte v . W . Side Dev. Group, LLC, 151 N.H.
291 (2004); Hoyt v . Horst, 105 N.H. 380 (1964).
13 As for Enterasys’ breach of contract claim, it is unclear
what Enterasys believes it is entitled to that Clarendon has
refused to provide. It is undisputed that Enterasys has not yet
incurred (and may never incur) covered losses sufficient to
implicate Clarendon’s policy. And, Enterasys has failed to
articulate how Clarendon could have breached the terms of an
insurance contract when it is plain that, at least to this point,
the contract imposes no obligation on Clarendon to provide
coverage. See, e.g., AT&T Wireless Services, Inc. v . Federal
Ins. Co., 2006 WL 267153 at *8 (Del. Super. Jan. 3 1 , 2006) (“When
the [primary policy’s] limits are exhausted, the excess policies
will kick in and stand in the footsteps of the primary policy.
Until then, however, there is no obligation under these policies,
nor would the insurers have acted in bad faith for failing to
cover counsel’s fees.”). Moreover, Enterasys is not claiming
that Clarendon breached an obligation to provide a defense in the
underlying class action litigation. In fact, its settlements
with the other insurance carriers covered both its “losses”
associated with settling the underlying cases, as well as the
attorney’s fees it incurred in connection with that litigation.
In short, because the covered losses incurred by Enterasys
have not yet reached the level at which Clarendon would be
14 obligated to provide coverage under its policy (i.e., $50
million), Enterasys cannot maintain a breach of contract claim
against Clarendon. See, e.g., Lister v . Bankers Life & Cas. Co.,
218 F. Supp. 2d 4 9 , 52 (D.N.H. 2002) (“Logic dictates that if an
insured is not entitled to the coverage in a dispute, then the
insured cannot maintain an action for breach of contract - in bad
faith or otherwise - for failure to provide said coverage).
III. Count Three - Good Faith and Fair Dealing.
Finally, Enterasys alleges that Clarendon breached the duty
of good faith and fair dealing that is implicit in all New
Hampshire contracts. See generally Centronics Corp. v . Genicom
Corp., 132 N.H. 133 (1989). That claim, too, fails as a matter
of law since Enterasys has not pointed to any evidence suggesting
that Clarendon acted in bad faith by, for example, engaging in
acts of coercion or employing improper claim-handling practices.
See, e.g., Lawton v . Great Southwest Fire Ins. Co., 118 N.H. 607
(1978). Nor has it responded to Clarendon’s motion for summary
judgment by pointing to circumstances in which Clarendon
exercised contractually-vested discretion in a manner that
exceeded reasonable limits. See Centronics, 132 N.H. at 143-45.
While there is no doubt that Clarendon has (to date anyway)
refused to provide coverage to Enterasys, there is also no doubt
15 that Enterasys is not yet entitled to such coverage.
Consequently, to the extent Clarendon’s denial of coverage can
properly be viewed as “discretionary,” Clarendon did not exercise
such discretion unreasonably or in bad faith — its policy has not
been triggered, and may never be triggered.
Conclusion
By its own concession, Enterasys has not sustained (and
might never sustain) covered losses sufficient to implicate
Clarendon’s policy. At best, then, its two claims arising out of
Clarendon’s alleged breach of the insurance contract are
premature. With regard to its suit for a declaration of
Clarendon’s obligations under the policy (again, should that
policy ever be implicated), Enterasys failed to file within the
six month period provided by RSA 491:22. For the foregoing
reasons, as well as those set forth in Clarendon’s memoranda,
Clarendon’s motion for summary judgment (document n o . 55) is
granted.
Because Enterasys has settled (and dismissed) its claims
against Gulf, Gulf’s motion for summary judgment (document n o .
54) and Enterasys’ motion to file a sur-reply to that motion
(document n o . 73) are both denied as moot. The motion in limine
16 filed jointly by Gulf and Clarendon (document n o . 85) is also
denied as moot. Finally, Enterasys’ motion to seal (document n o .
74) is granted.
The Clerk of Court shall enter judgment in accordance with
this order and close the case.
SO ORDERED.
Steven J. McAuliffe 'Chief Judge
August 2 9 , 2006
cc: John C . Blessington, Esq. John V . Dwyer, Esq. John M . Edwards, Esq. Steven P. Wright, Esq. Doreen F. Connor, Esq. Janet R. McFadden, Esq. Gabriela Richeimer, Esq. James c. Wheat, Esq. John R. Gerstein, Esq.