López & Medina Corp. v. Marsh USA, Inc.

667 F.3d 58, 2012 WL 229856, 2012 U.S. App. LEXIS 1420
CourtCourt of Appeals for the First Circuit
DecidedJanuary 26, 2012
DocketNo. 10-1702
StatusPublished
Cited by32 cases

This text of 667 F.3d 58 (López & Medina Corp. v. Marsh USA, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
López & Medina Corp. v. Marsh USA, Inc., 667 F.3d 58, 2012 WL 229856, 2012 U.S. App. LEXIS 1420 (1st Cir. 2012).

Opinion

TORRUELLA, Circuit Judge.

Plaintiff-appellant López & Medina Corp. (“L & M”) appeals the district court’s order denying its cross-motion for summary judgment. The cross-motion was denied on the grounds that the insurance policy pursuant to which L & M sought coverage, issued by defendant-appellee United States Aviation Underwriters, Inc. (“USAUI”),1 did not cover L & M’s losses arising from an alleged breach of contract. López & Medina Corp. v. Marsh USA Inc., et al, 694 F.Supp.2d 119 (D.P.R.2010). We affirm the decision of the district court.

In addressing whether USAUI’s policy covered L & M’s contractually based claim, we tread on virgin ground in our circuit. We have not yet had the opportunity to address whether the phrase “legally obligated to pay as damages” in a commercial general liability (“CGL”)2 policy, which usually covers only tort claims, also provides coverage for claims in an underlying action arising out of and related to a contract between the parties. In resolving this matter of first impression, we join the majority of those circuit courts of appeals that have ruled on the issue.3 We thus hold that the policy in this case covers only liability arising in tort and does not pro[60]*60vide coverage for liability arising from a breach of contract.

I. Background

A. Factual Background

On September 1, 2001, USAUI and other defendant co-insurers issued Airline Insurance Form PA-01, Policy # SIHL1200A (the “Policy”) to Pace Airlines, Inc. (“Pace”).4 Pace was the “Named Insured” under the Policy, and two Boeing 737-200 aircraft were listed as the insured subjects. The Policy covered certain risks assumed by its insured, Pace, in its contractual arrangements with other companies, which generally consisted of charter programs.

That same month (September 10, to be precise), Pace entered into one such charter program contractual arrangement. Pace signed an Aircraft Charter and Management Agreement (“Charter Agreement”) with Patriot Air, LLC (“Patriot”). Pursuant to this agreement, Pace, as a direct air carrier, leased to Patriot, an indirect air carrier, certain of its Boeing 737 aircraft for use in Patriot’s charter flight operations.

Thereafter, on May 15, 2002, Patriot entered into a Passenger Aircraft Agreement (“Passenger Agreement”) with L & M. Pursuant to this agreement, Patriot, acting as an indirect air carrier, agreed to provide L & M with aircraft transportation (specifically, the Boeing 737 aircraft leased from Pace) to transport L & M customers to destinations that L & M had booked on the travelers’ behalf.5 In return, L & M agreed to “submit a schedule of Flights to Patriot ... forty-five (45) days prior to the month in which the Flights are to occur.” Additionally, L & M agreed to make advance deposits in Patriot’s escrow account “[ejach Friday during the term of this Agreement” in “an amount that is equal to the. scheduled flight hours multiplied by $4,950 for the Applicable Period.” It also agreed “to pay Patriot at least $643,500.00 per month during the term of this Agreement ... even if Charterer cancels flight(s).” Lastly, before any of the scheduled flights took place,6 Patriot required L & M to provide a surety bond in the amount of two hundred thousand dollars to ensure L & M’s performance under the [61]*61Passenger Agreement; L & M purchased the surety bond from United Surety and Indemnity Company for fifty thousand dollars.

With all matters seemingly finalized, Patriot and L & M prepared for their business venture, titled “Dream Air operated by Pace Airlines,” to take off. On June 22, 2002, the first chartered flight left Luis Muñoz Marín International Airport, departing from San Juan, Puerto Rico to the Dominican Republic. Business seemingly continued to soar into early July, with additional flights occurring on July 3, 4, 7, 8, 11, 12, and 14 of 2002. However, it was not long before L & M and Patriot’s business arrangement began to experience turbulence.

Between June and July 2002, L & M and Patriot exchanged various communications, in which L & M claimed that Patriot had unlawfully refused to provide aircraft for already scheduled flights, and Patriot contended that L & M had unlawfully failed to fulfill its payment obligations under the Passenger Agreement. As of mid-July, L & M and Patriot’s Dream Air operation had become a business venture nightmare. By July 18, 2002, Patriot had taken action and terminated the Passenger Agreement.

Two months later, Patriot filed for voluntary bankruptcy under Chapter 11 in the United States Bankruptcy Court for the Northern District of Texas. L & M filed a proof of claim against Patriot for the former’s incurred costs and suffered damages resulting from the latter’s alleged breach of the Passenger Agreement and failure to provide chartered aircraft to L & M’s booked passengers. The bankruptcy court subsequently disallowed L & M’s claim against Patriot after the Chapter 11 proceedings were converted to a Chapter 13 liquidation. The bankruptcy judge confirmed a plan of liquidation on May 25, 2004, and all bankruptcy proceedings were terminated on August 31, 2004.

B. Procedural History

On June 3, 2005, L & M filed the complaint in this action against Patriot and Pace’s insurers (specifically, USAIG and its co-insurers, including USAUI, the manager of the Policy).7 L & M claimed that Patriot not only had breached their Passenger Agreement, but also had terminated the agreement in bad faith as of July 2002. L & M noted that Patriot, which it did not name as a defendant, had filed for bankruptcy in September 2002; however, it contended that its claim against Patriot was covered by one or more insurance policies, including the USAUI-managed Policy now at issue, thus explaining its suit against the co-insuring defendants.

L & M alleged three causes of action in its complaint: (1) the named defendants were liable under Puerto Rico’s Direct Action Statute, P.R. Laws Ann. tit. 26, § 2003,8 for risks insured under the Policy; (2) declaratory judgment, establishing that one or more of defendants’ insurance policies provided coverage for those risks associated with the breach of the Passenger [62]*62Agreement, Charter Agreement, or any other agreements concerning Patriot and Pace’s charter operations; and (3) a determination that the Policy insured against a breach of contract risk, and therefore, defendant-insurers were directly liable to L & M within the maximum limit of their combined policies for losses arising from the alleged breach, which L & M contended amounted to ten million dollars.

On August 21, 2007, USAUI, on behalf of all defendants, filed a motion for summary judgment arguing that L & M’s claims were precluded under the doctrines of res judicata and collateral estoppel; that Puerto Rico’s Direct Action Statute did not permit a claim against an insurer (here, defendants) if the claim no longer existed against the insured (here, Patriot); and that the Direct Action Statute did not apply extraterritorially to USAUI’s actions in Puerto Rico.

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Bluebook (online)
667 F.3d 58, 2012 WL 229856, 2012 U.S. App. LEXIS 1420, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lopez-medina-corp-v-marsh-usa-inc-ca1-2012.