Miller v. Zurich American Insurance Co. (In re WL Homes LLC)

563 B.R. 512, 2017 Bankr. LEXIS 58, 63 Bankr. Ct. Dec. (CRR) 152
CourtUnited States Bankruptcy Court, D. Delaware
DecidedJanuary 10, 2017
DocketCase No. 09-10571 (BLS) Jointly Administered; Adv. 11-50839 (BLS)
StatusPublished

This text of 563 B.R. 512 (Miller v. Zurich American Insurance Co. (In re WL Homes LLC)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Miller v. Zurich American Insurance Co. (In re WL Homes LLC), 563 B.R. 512, 2017 Bankr. LEXIS 58, 63 Bankr. Ct. Dec. (CRR) 152 (Del. 2017).

Opinion

OPINION2

Brendan Linehan Shannon, Chief United States Bankruptcy Judge

Before the Court is the Motion for Partial Summary Judgment (the “Motion”) [Adv. Docket No. 59] filed by the Chapter 7 Trustee for the Estate of WL Homes, LLC. The Trustee contends that he is entitled to turnover of approximately $2.2 million in insurance premium overpay-ments—called a “return premium”—from Zurich American Insurance Company (“Zurich”). Zurich defends against turnover by asserting affirmative defenses of setoff or recoupment for amounts actually spent defending and settling construction defect claims against WL Homes as insured, and Zurich as insurer. For the reasons stated below, the Trustee’s Motion is denied.

I. BACKGROUND

Before its 2009 bankruptcy filing, - WL Homes (‘WL” or the “Debtor”) was among the nation’s largest and most respected homebuilders, building everything from entry-level condos to multi-million dollar mansions. In 2002, WL took out a Home Builders Protective Insurance Policy with Zurich (the “Policy”). The Policy was renewed four times between 2002 and 2009, with the final renewal occurring in May 2007 and running through May 2009. The Policy was in effect when WL commenced its bankruptcy case on February 19, 2009.

During that final term, the Policy covered WL Homes for damages and defense costs relating to construction defects, among other things. But the coverage only kicked in after WL Homes itself paid a certain amount of those costs, defined as a self-insured retention (“SIR”). Specifically, Section IV. D of the Policy provides:

Except for any “defense costs” that [Zurich is] obligated to pay [in] excess of the “self-insured retention,” or that [Zurich] may elect to pay, [WL Homes] shall pay all such “defense costs” as they are incurred until [WL Homes] ha[s] paid “defense costs” and damages for the coverages included in .the policy equal to the applicable “self-insured retention” amount. If any final judgment or settlement and “defense costs” is less than the “self-insured retention” amount stated above, [Zurich] shall have no obligation to pay damages or “defense costs” under this policy.

Some of the homes WL built over the years contained flaws, leading homeowners to file construction defect claims against [515]*515the company. Several of the claims are large enough to implicate Zurich’s coverage obligations under the Policy.

As noted, on February 19, 2009, WL filed a voluntary petition under Chapter 11 of the Bankruptcy Code. This Court converted that case to a Chapter 7 proceeding on June 5, 2009, and George L. Miller was promptly appointed to serve as the Chapter 7 Trustee. After WL Homes filed for bankruptcy, and in accordance with the Policy, Zurich performed an audit and determined that WL Homes had overpaid its premium obligations for the 2007 to 2009 term by roughly $2.2 million. Zurich filed a Motion for Relief from the Stay [Docket No. 1122] asserting that it was entitled to keep the $2.2 overpayment and apply it toward defending construction defect claims within the self-insured retention amounts. This Court ruled by Opinion dated May 16, 2012 that Zurich had not, at that time, established its rights to setoff under § 553 of the Bankruptcy Code and denied Zurich’s Motion. In re WL Homes LLC, 471 B.R. 349, 350 (Bankr. D. Del. 2012).

The instant Motion arises in an adversary proceeding filed by the Trustee. In his complaint, Trustee seeks to avoid and recover certain preferential transfers, disallow certain claims, and obtain turnover of the Return Premium. Trustee filed the Motion seeking turnover of property of the estate, arguing that the $2.2 million Re-ten Premium belongs to this Debtor’s estate. Zurich defends against the Trustee’s Motion by arguing that it holds setoff and recoupment rights for amounts paid post-petition on construction defect claims covered under the Policy.3 The issue has been fully briefed and 'argument was held. The Motion is ripe for decision.

II. JURISDICTION AND VENUE

The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1334 and 157(b)(1). Venue is proper in this Court pursuant to 28 U.S.C. §§ 1408 and 1409. Consideration of the Motion constitutes a core proceeding under 28 U.S.C. § 157(b)(2)(A), (B), (E), and (O).

STANDARD FOR SUMMARY JUDGMENT

Rule 56 of the Federal Rules of Civil Procedure, made applicable hereto by Federal Rule of Bankruptcy Procedure 7056, provides that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). At the summary judgment stage, the court’s function is not to weigh the evidence for the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The moving party bears the burden of establishing the absence of a genuine dispute as to a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “[A] party seeking summary judgment always bears the initial responsibility of informing the district court for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323, 106 S.Ct. 2548. When the nonmoving party bears the bur[516]*516den of persuasion at trial, the moving party “may meet its burden... by showing that the nonmoving party’s evidence is insufficient to carry that burden.” Foulk v. Donjon Marine Co., Inc., 144 F.3d 252, 258 n.5 (3rd Cir. 1998).

Once the moving party has carried its initial burden, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348,89 L.Ed.2d 538 (1986).

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563 B.R. 512, 2017 Bankr. LEXIS 58, 63 Bankr. Ct. Dec. (CRR) 152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-zurich-american-insurance-co-in-re-wl-homes-llc-deb-2017.