RRR, L.L.C. v. New Hampshire Insurance

74 Va. Cir. 265, 2007 Va. Cir. LEXIS 202
CourtFairfax County Circuit Court
DecidedOctober 17, 2007
DocketCase No. (Law) 2005-1762
StatusPublished

This text of 74 Va. Cir. 265 (RRR, L.L.C. v. New Hampshire Insurance) is published on Counsel Stack Legal Research, covering Fairfax County Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
RRR, L.L.C. v. New Hampshire Insurance, 74 Va. Cir. 265, 2007 Va. Cir. LEXIS 202 (Va. Super. Ct. 2007).

Opinion

BY JUDGE STANLEY P. KLEIN

This matter is before the court upon Plaintiff, RRR, L.L.C., t/a Rosenthal Nissan/Mazda’s (“RRR” or “Rosenthal”) Motion for Summary Judgment and the cross Motion for Judgment as a Matter of Law by Defendant, New Hampshire Insurance Company (“NHI”). This case involves a coverage and duty-to-defend dispute between RRR, a motor vehicle dealership, and NHI, its insurer. More specifically, having been sued in this court by a former customer, RRR tendered its defense to NHI, which denied coverage and declined to defend. The underlying case settled, and RRR now seeks to recover defense and settlement costs from NHI. Counsel have advised the court that it need only decide the issue of NHI’s alleged liability, as the parties have agreed upon the quantum of damages if the court were to find that NHI had the duty to defend. The parties further agreed that all relevant facts were set out in the Parties’ Joint Stipulations (“PJS”), which the court should consider in ruling on their cross-motions.

The Court has fully considered the PJS, the relevant provisions of the applicable policy of insurance, the briefs of the parties, and the arguments of counsel. For the reasons set out below, RRR’s Motion for Summary Judgment is denied, and judgment is entered for NHI.

[266]*266I. Background

A. The Underlying Lawsuit

Jessica Kittrell, a former customer of RRR, filed a three count motion for judgment (the “Kittrell Suit” or “KMFJ”) against RRR setting forth claims arising out of her lease of a vehicle from Rosenthal. PJS ¶ 3. In her suit, Kittrell alleged (1) that she arrived at Rosenthal with the intent to buy but was convinced by Rosenthal’s representatives that she would get a better deal if she leased the vehicle, KMFJ ¶ 5; (2) that Rosenthal’s representatives made numerous representations to her regarding a security deposit and monthly leasing costs; (3) that after she had signed an initial lease agreement, Rosenthal personnel manipulated various figures related to the calculation of monthly costs and then advised her she would have to pay more than originally agreed in that lease; (4) that Rosenthal threatened not to pay off her trade-in (and thus, damage her credit) if she did not sign a new lease agreement incorporating the new costs; and (5) that figures in the new lease agreement were entirely incorrect, causing her further financial damage. KMFJ ¶¶ 6-22. Kittrell also alleged that, when the leasing company that purchased the lease from Rosenthal pointed out the inconsistencies in the lease documents, Rosenthal provided additional false information regarding an upgrade from cloth seats to leather seats to account for the discrepancy. KMFJ ¶¶ 23-26.

Count I of the Kittrell Suit claimed violations of the Virginia Consumer Protection Act, Va. Code §§59.1 et seq. (“VCPA”), and alleged that Rosenthal willfully violated Va. Code § 59.1-200(A)(14), which makes unlawful “any other deception, fraud, false pretense, false promise, or misrepresentation in connection with a consumer transaction.” Kittrell accused Rosenthal of “using multiple acts of deception, fraud, false pretense, false promise, and misrepresentation in connection with a consumer transaction,” KMFJ ¶ 33, “falsely informing [her] more than three weeks after she took possession of the vehicle that she needed to execute a second [lease] on less favorable terms to [her] after Rosenthal had accepted and signed the first [lease],” KMFJ ¶ 34, and “deceptively and fraudulently increasing the gross capitalized cost [on her lease] in order to make more money off the deal.. ..” KMFJ ¶ 37.

Kittrell asserted that “Rosenthal’s conduct was willful and that willfulness can be inferred from the facts and circumstances surrounding this transaction as well as from the other transactions in which Rosenthal engaged [267]*267in similar deceptive practices involving leases.” KMFJ ¶ 40. Specifically, she claimed that Rosenthal had engaged in similar deceptive practices on other occasions, KMFJ ¶ 35, “ha[d] previously engaged in the practice of‘packing’ undisclosed amounts into the gross capitalized cost. .. [and] ha[d] a well-documented history of willfully using deceptive practices to cheat and defraud consumers in automobile lease transactions.” KMFJ ¶ 38.

In Count II of her suit, Kittrell claimed that Rosenthal had breached its contract with her solely because Rosenthal had required her to enter into the less favorable second motor vehicle lease agreement with it. In Count II, Kittrell incorporated all of the allegations of fraudulent conduct by Rosenthal that were set out in the preceding paragraphs of the Kittrell Suit.

Finally, in Count III, Kittrell alleged that Rosenthal’s representatives “committed fraud in connection with the consumer transaction described herein ... made false statements and representations ... and fraudulently concealed true facts, solely to fraudulently induce the Plaintiff to enter into the second Motor Vehicle Lease Agreement.” KMFJ ¶ 48. In this count, Kittrell claimed that “the entire transaction [was] riddled with fraud, KMFJ ¶ 49, and that the “false statements, misrepresentations, and fraudulent actions taken by Rosenthal were intended to deceive and defraud the Plaintiff.. . .” KMFJ ¶ 50.

B. The Relevant Policy Provisions

NHI issued a policy of insurance to RRR indemnifying RRR for claims falling within the ambit of the policy’s provisions. The pertinent portions of that insurance policy are found in two “Extension Endorsements;” which read in relevant part as follows:

Section XII: Automobile dealers Legal Defense and Product Related Damages Coverage

“Product Related Damage” means damages incurred by any customer and arising out of the sale, service, or repair of your products other than damages as a direct result of an accident.
A. We will pay all sums the “insured” legally must pay as damages because of “product related damage” to which this insurance applies.. . .

[268]*268D. Exclusions: This insurance does not apply to:

1. Damages if caused by any willful, dishonest, fraudulent, intentional, or criminal act committed by any “insured.”

Garage Policy Extension Endorsement, PJS ¶ 2, Exhibits A and B (emphasis added).

SECTION XIII: TRUTH IN LENDING ERRORS AND OMISSIONS LIABILITY COVERAGE FOR AUTOMOBILE PURCHASE OR LEASING----

A. We will also pay all sums the “insured” must legally pay as damages because of the unintentional violation of any Federal or State Consumer Credit Act, including but not limited to the Truth in Lending Act, or similar other statute, law, or ordinance, and which arises out of representation's made pertaining to the lending of amounts for the purposes of purchasing or leasing of any automobiles.
B. Exclusions .... Any willful or knowing violation of any Federal or State Consumer Credit Act or similar statute, law, or ordinance committed by you or at your discretion.

Id.

RRR claims that some acts alleged in the Kittrell Suit fell within its policy coverage and, thus, NHI had the duty to defend RRR in that lawsuit. RRRMotion for Summary Judgment, ¶¶ 8, 9.

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Bluebook (online)
74 Va. Cir. 265, 2007 Va. Cir. LEXIS 202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rrr-llc-v-new-hampshire-insurance-vaccfairfax-2007.