Illinois Union Insurance v. Shefchuk

108 F. App'x 294
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 17, 2004
DocketNos. 02-3698, 02-3767 and 02-3714
StatusPublished
Cited by6 cases

This text of 108 F. App'x 294 (Illinois Union Insurance v. Shefchuk) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Illinois Union Insurance v. Shefchuk, 108 F. App'x 294 (6th Cir. 2004).

Opinion

PER CURIAM.

These three appeals result from litigation involving similar professional liability policies issued by and to the same parties, and they raise similar issues regarding the duty of the plaintiff, Illinois Union Insurance Company, to defend Robert Shefchuk and the estate of his son, Gregory Shefchuk, in various individual actions alleging the loss of thousands of dollars in investments due to the negligence and/or the misdeeds of the Shefchuks in their capacity as financial advisers. In the first appeal, Illinois Union challenges the district court’s grant of partial summary judgment to defendant Robert Shefchuk, holding that Illinois Union had a duty to defend in ten of the underlying actions. In the second, Robert Shefchuk cross-appeals, arguing that the district court should have found a duty to defend in an additional action. In the third and last appeal, Gregory Shefchuk’s estate challenges the court’s grant of summary judgment to Illinois Union, arguing that the court erred in holding that the plaintiff had no duty under the policy to the estate in the underlying actions.

We conclude that the district court’s resolution of the issues now before us was largely correct and affirm on all but one ruling.

FACTUAL AND PROCEDURAL BACKGROUND

In 1997, Illinois Union issued professional liability policies to Money Concepts [297]*297Capital Corporation and its affiliate, RCS Financial Services. Covered as “insureds” under these policies were Robert Shefchuk and his son, Gregory Shefchuk, who were registered representatives of Money Concepts, a financial services brokerage firm, and shareholders in RCS Financial Services, an investments advisory firm. Beginning in April 1998, some two dozen lawsuits were filed and arbitrations initiated against the Shefehuks, Money Concepts, and RCS Financial Services. The common thread in these underlying actions was a series of allegations that clients of the Shefehuks had lost their investments through the Shefehuks’ negligence or fraud or both. In May 1998, a month after the allegations of fraud and mismanagement came to light, Gregory Shefchuk committed suicide. A few months later, RCS Financial Services declared bankruptcy.

When, in response to the individual lawsuits, Robert Shefchuk and Gregory Shefchuk’s estate sought coverage under the Illinois Union policies, Illinois Union filed this action in federal court, seeking a declaratory judgment that it had no duty to defend or indemnify either Robert Shefchuk or his son’s estate under the policy issued to RCS Financial Services and, alternatively, requesting rescission of the policy, on the ground that Gregory Shefchuk had concealed existing and potential claims against him when he applied for the policy. Robert Shefchuk counter-claimed, alleging that Illinois Union had breached the terms of its contracts when it failed to defend him in the underlying actions, as required by the policy issued to RCS Financial Services and by a second policy issued to Money Concepts.

The “broker-dealer financial services professional liability insurance policy” issued to Money Concepts — the specific policy at issue in this case — covered actions for “wrongful acts” committed by the named insured and its representatives. “Wrongful act” was defined in the policy as “any negligent breach of duty, error, misstatement, misrepresentation, omission, ‘publication injury5 or other negligent act done or attempted by an insured, or by any person for whose acts the insured is legally responsible.” The policy covered each individually named registered representative of the named insured for actions “arising out of or in the course and scope of his/her duties as a ‘registered representative.” The policy also contained a number of exclusions. Among those considered by the district court were the following:

B. Dishonesty Or Fraud/Personal Advantage/Non Public Information. We do not cover claims which arise out of or are contributed to by a “wrongful act” that is committed by or at the direction of an insured and which is dishonest, fraudulent, criminal, malicious or knowingly wrongful. We do not cover claims arising out of the insured gaining any personal profit or advantage to which the insured was not legally entitled____
D. Violation Of Laws, Orders, Or Regulations. We do not cover claims which arise out of a willful violation of any laws, orders, rules or regulations of the United States, or any state, commonwealth, territory, county, subdivision or municipality thereof committed by or at the direction of an insured....
R. Prior Acts/Unnamed Financial Services Professionals Or Registered Representatives. We do not cover claims arising out of: any “wrongful act”, or series of “interrelated wrongful acts”, of an insured occurring, or the first of which occurred, prior to the insured’s “retroactive date”: or out of “wrongful act” or series of “interrelated wrongful acts” with respect to which a “written [298]*298claim” has previously been presented to us under any predecessor policy. We do not cover “written claims” against an insured which arise out of any “wrongful act” or “interrelated wrongful acts” occurring, or the first of which occurred, prior to the effective date of coverage for said insured under this policy, or any predecessor policy issued by us, if the insured knew or should have known, by consulting his/her/its records or otherwise, that said act, error or omission was likely to result in a claim against the insured....

The policy also included a claims exclusion endorsement that excluded coverage for claims “arising out of ... any incident or fact situation which occurred prior to the effective date of this policy, which is known to an insured, and which may reasonably be expected to result in a claim or suit against an insured.” In addition, the policy included the following severability clause:

More than one person or organization has been named as an insured on this policy. The inclusion of multiple insureds will not affect the rights of any such persons or organizations to be protected by this policy. We will cover each such person or organization just as if a separate policy had been issued to each. However, the inclusion of multiple insureds on this policy will not increase our liability beyond the Limits of Liability....

In disposing of the motions for summary judgment filed by the parties in the action involving Robert Shefchuk, the district court applied Ohio law and separated the underlying actions into three categories: (1) cases that alleged knowing or intentional wrongdoing by Robert Shefchuk or negligence that arose out of such conduct, (2) cases in which it was not clear whether the plaintiff was alleging negligence or an intentional tort on the part of Robert Shefchuk, and (3) cases that alleged negligence on the part of Robert Shefchuk that did not arise out of his wrongful acts. The court held that Illinois Union had no duty to defend Robert Shefchuk in the first category, finding that some of the cases were excluded by the “prior occurrence” exclusion and that others were barred by the second sentence of the “dishonesty” exclusion, involving actions taken for personal gain. The court held that Illinois Union did have to defend Robert Shefchuk in the second and third categories of cases. The parties later stipulated that, as of October 3, 2001, Robert Shefchuk had incurred $237,454.25 in defending the claims against which Illinois Union was found to have a duty to defend and prosecuting his claim against Illinois Union for coverage.

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

Related

American Home Assurance Co. v. Pope
591 F.3d 992 (Eighth Circuit, 2010)
ARGENT EX REL. VINCENT v. Brady
901 A.2d 419 (New Jersey Superior Court App Division, 2006)
American Chem. Soc. v. Leadscope, Unpublished Decision (5-24-2005)
2005 Ohio 2557 (Ohio Court of Appeals, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
108 F. App'x 294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/illinois-union-insurance-v-shefchuk-ca6-2004.