Potomac Insurance v. McIntosh

804 P.2d 759, 167 Ariz. 30, 58 Ariz. Adv. Rep. 58, 1990 Ariz. App. LEXIS 138
CourtCourt of Appeals of Arizona
DecidedApril 17, 1990
Docket1 CA-CV 88-288
StatusPublished
Cited by4 cases

This text of 804 P.2d 759 (Potomac Insurance v. McIntosh) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Potomac Insurance v. McIntosh, 804 P.2d 759, 167 Ariz. 30, 58 Ariz. Adv. Rep. 58, 1990 Ariz. App. LEXIS 138 (Ark. Ct. App. 1990).

Opinions

OPINION

JACOBSON, Judge.

The issue on appeal is whether an attorney’s professional liability insurance covers [31]*31his action when dealing in a business context with his clients. The appeal arises from a summary judgment granted in favor of appellees on the basis that no insurance coverage existed for claims made by appellants against appellees’ insured.

FACTS AND PROCEDURAL HISTORY

Sometime during 1982-83, attorney Phillip D. White orchestrated the formation of a limited partnership known as Southwest Arizona Developers Limited Partnership (Southwest). White was the general partner and appellants Frank and Donald McIntosh, Webster Lehmann, Jr. (appellants), and others were limited partners. White and his firm, White, Waddell & Associates, P.A., had previously represented appellants in connection with various legal matters. In July 1983, Southwest was formally created. After Southwest experienced the financial difficulties which gave rise to this litigation, White resigned as general partner in February 1984, and left the country. The Mclntoshes were substituted as general partner of Southwest in White’s place. As a result of their investment in Southwest, appellants lost over $260,000.1

In September 1985, appellants and others filed an amended six count complaint in Maricopa County Superior Court against Phillip White, Seid Waddell, and White, Waddell & Associates, P.A., alleging attorney malpractice, breach of fiduciary duty, fraud, fraudulent sale of unregistered securities, breach of contract, and negligence. (Cause No. C-515255). White’s professional liability insurance carrier, Potomac Insurance Company, and its underwriter, Shand-Morahan Company (appellees), accepted White’s defense under a reservation of rights.

Appellees filed a complaint for declaratory relief which gave rise to this appeal against White and his firm, seeking a declaration that no coverage existed under White’s malpractice insurance policy for either indemnity or defense in connection with appellants’ claims in Cause No. C-515255.

With appellees’ approval, White entered into a settlement agreement with appellants in Cause No. C-515255, assigning White’s rights under the policy, if any, to appellants. In conjunction with the agreement, a second amended complaint was filed by appellants alleging a single count of attorney malpractice with damages of $234,542.69. Appellants were substituted as defendants in the declaratory judgment action. Waddell was dismissed with prejudice.

Appellees moved for summary judgment in November 1987, arguing that attorney White’s activities were excluded from coverage by the terms of the liability policy, which specifically provided that:

1. This policy does not apply:

(b) to any claim made by or against any business enterprise not named in the Declarations ... in which the Insured is a partner ... or which is controlled, operated or managed by the Insured, either individually or in a fiduciary capacity ...
(c) to liability arising out of the Insured’s services and/or capacity as:
(1) an officer, director, [or] partner ... of a business enterprise____

(Emphasis added.) Appellees argued that White was a general partner in Southwest, and that appellants’ claims arose solely in connection with White’s participation in that partnership. Thus, the quoted exclusion applies.

Appellants’ cross-motion for summary judgment and response argued that White “wore two hats” — one as a general partner of Southwest, and the other as attorney for appellants and for the partnership. They argued that they were only seeking recovery for White’s negligence committed in his role as an attorney, and that therefore the “business enterprise” exclusion does not apply.

The trial court granted appellees’ motion for summary judgment and denied appellants’ cross-motion, specifically finding that [32]*32no coverage existed for the matters alleged in Cause No. C-515255:

Although Defendants have sought to cast it otherwise, the test is, or at least should be, the expectations of the client. The policy terms are not vague or ambiguous and require no construction. It is clear that if the liability-incurring event arose out of the business or the insured’s activities as a partner in the business, coverage does not apply.
Defendants have urged that it was White’s failure to disclose potential conflict to which the Court ought to look. That may have been some obligation as either partner or lawyer, but it was not the liability-incurring event. The liability-incurring event was actually the activities more specifically described in the earlier Amended Complaint and not those alleged in the Second Amended Complaint.

Formal judgment in accordance with the trial court’s ruling was entered on April 1, 1988, and appellants timely appealed.

DISCUSSION

Appellants’ argument that the business enterprise exclusion does not apply rests on the contention that White committed acts of malpractice in his capacity as an attorney. In support of this contention, appellants claim that White negligently (1) failed to advise appellants of the risks inherent in an investment in a limited partnership; (2) failed to warn appellants of the existence of possible conflicts of interest; (3) induced appellants to sign the partnership documents without full disclosure of their effect; and (4) induced appellants to sign at least one personal guarantee for a partnership loan without disclosing to them the effect of such guarantee.

Assuming that White may have been liable for negligent acts committed in his capacity as an attorney does not determine the question of whether that negligence falls within the coverage of the policy. See Aragona v. St. Paul Fire & Marine Ins. Co., 281 Md. 371, 378 A.2d 1346, 1350-51 (1977). In order to determine that question, the proper focus of our inquiry is the proximate or direct cause of appellants’ loss: attorney negligence or business reverses. See id.

In support of their cross-motion for summary judgment, appellants admit that “[a]s a result of this investment [appellants] lost $264,201.96.” Although the record on appeal is somewhat unclear, it appears that appellants’ loss was occasioned by two events. First, appellants became liable to various Southwest creditors by virtue of the Mclntoshes’ substitution as general partner of Southwest after White’s resignation. See A.R.S. § 29-319(a). Second, Southwest apparently defaulted on certain partnership loans, resulting in appellants’ ultimate liability on one of these loans which they had personally guaranteed.

Thus, White’s alleged negligent acts, arguably committed in his capacity as an attorney, in inducing appellants to invest as limited partners and to guarantee partnership loans may have indirectly caused appellants’ loss, but they were not the proximate cause.

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Potomac Insurance v. McIntosh
804 P.2d 759 (Court of Appeals of Arizona, 1990)

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Bluebook (online)
804 P.2d 759, 167 Ariz. 30, 58 Ariz. Adv. Rep. 58, 1990 Ariz. App. LEXIS 138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/potomac-insurance-v-mcintosh-arizctapp-1990.