Silverman Neu, LLP v. Admiral Insurance

933 F. Supp. 2d 463, 2013 WL 1248629, 2013 U.S. Dist. LEXIS 44976
CourtDistrict Court, E.D. New York
DecidedMarch 28, 2013
DocketNo. 11-cv-05542 (JFB)(AKT)
StatusPublished
Cited by6 cases

This text of 933 F. Supp. 2d 463 (Silverman Neu, LLP v. Admiral Insurance) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Silverman Neu, LLP v. Admiral Insurance, 933 F. Supp. 2d 463, 2013 WL 1248629, 2013 U.S. Dist. LEXIS 44976 (E.D.N.Y. 2013).

Opinion

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge:

Plaintiff Silverman Neu, LLP (“Silver-man”), as successor to Chipetine, Neu & [465]*465Silverman, LLC (“CNS”) (“plaintiff’ or “Silverman/CNS”), brings this action against Admiral Insurance Company (“defendant” or “Admiral”) seeking a declaratory judgment that Admiral had an obligation to defend Silverman/CNS in an underlying class action lawsuit,1 instituted by class representatives Andrew Zimmerman and Kelly Zimmerman on behalf of a group of plaintiffs (the “Zimmerman plaintiffs”), who alleged that CNS’s clients engaged in fraud and misrepresentation against the Zimmerman plaintiffs (“Underlying Lawsuit” or “Underlying Action”). Plaintiff also moves for reimbursement of defense costs in the event the Court finds that Admiral was obligated to have defended plaintiff in the Underlying Lawsuit against the Zimmerman plaintiffs.

Admiral cross-moves for summary judgment seeking a declaration that (1) New York law should govern the duty to defend analysis; (2) the claims in the Underlying Action, for which plaintiff raises a duty to defend, do not fall within the scope of the Admiral Policy insuring agreement, the latter of which was issued to CNS; (3) even if the claims in the Underlying Lawsuit are within the scope of the Admiral Policy’s insuring agreement, they fall under one or more of its exclusions, including the Wrongful Act Exclusion; (4) the claims in the Underlying Action, assuming they are covered under the Admiral Policy’s insuring agreement, also fall within the Policy’s Financial Institution Exclusion; and (5) summary judgment in Admiral’s favor is warranted.

For the reasons set forth herein, the Court denies Silverman/CNS’s declaratory judgment motion in its entirety. The Court grants Admiral’s cross-motion for summary judgment, concluding that even if coverage theoretically applies to the Underlying Action’s claims, coverage is precluded pursuant to the Wrongful Act Exclusion provision. Given that the Court has determined that Admiral has no duty to defend here, it need not address plaintiffs request for damages arising from the Underlying Lawsuit.

I. Background

A. Factual Background

The Court has taken the facts set forth below from the parties’ depositions, affidavits, and exhibits, and from the parties’ respective Rule 56.1 Statements of Facts. Upon consideration of a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party. See Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir.2005). Unless otherwise noted, where a party’s 56.1 Statement is cited, that fact is undisputed or the opposing party has pointed to no evidence in the record to contradict it.2

This case arises out of a class action in which the Zimmerman plaintiffs séek to recover payments made to certain credit counseling companies, including Cambridge Credit Counseling Corp. (“CCCC”) and Cambridge/Brighton Budget Planning Corp. (“Cambridge/Brighton”) — two of CNS’s clients — on grounds that these entities engaged in fraud and misrepresentation that injured these customers. (Def.’s 56.1 Statement (“Def.’s 56.1”) ¶¶ 1, 6, 10, 13,17, 20.) Because details concerning the Underlying Lawsuit are relevant to the current dispute, the Court addresses this action in full.

[466]*4661. The Lawsuit Stage: The Zimmermans Sue

The Zimmerman plaintiffs filed a complaint (the “Zimmerman Complaint”) against BDO Seidman, LLP (“BDO”), CNS, and Kostin, Ruffkess & Company, LLP (“Kostin”) (collectively, “defendants”) in the United States District Court for the District of Massachusetts. (Id. ¶ 4.) This action related to two prior actions. One was filed in the United States District Court for the District of Massachusetts (the “Zimmerman Class Action”), alleging violations of the Credit Repair Reorganization Act, 15 U.S.C. § 1679 . et seq. (“CROA”); the other case was filed -in the Eastern District of New York under a RICO theory of liability (the “Limpert Action”). (Id. ¶ 5.) The following facts, upon which the parties rely in their briefings and corresponding submissions, are derived from the- Zimmerman Complaint.

The Zimmerman Class Action and the Limpert Action were brought by hundreds of thousands of injured debt management plan customers of, among other entities, CCCC and Cambridge/Brighton. (Id. ¶ 6.)3,4 In the Zimmerman Class Action, the Massachusetts district court found in favor of the plaintiffs, entering judgment against CCCC and Cambridge/Brighton for $259,085,983 (id. ¶ 7), representing the amount of' money that the Zimmerman Class Action plaintiffs had paid to CCCC and Cambridge/Brighton for their debt management services (id. ¶ 8). On March 18, 2009, the district court entered a final order, in which it' established a constructive trust for the full amount of the judgment. (Id. ¶ 9.)

The Zimmerman Complaint makes several allegations against CCCC and Cambridge/Brighton, for their allegedly wrongful debt management practices, as well as against CNS, for its alleged role in shielding those entities’ actions from, and misrepresenting its practices to, the public. In' particular, it alleges that CCCC and Cambridge/Brighton held themselves out as non-profit organizations, even though a large portion of their activities were not in furtherance of a tax exempt purpose, making them for-profit organizations. (See id. ¶ 11 (stating that CCCC and Cambridge/Brighton participated in “ ‘widespread abuse of tax exemptions and nonprofit status in the credit counseling and debt management industry’ ” (quoting Affirmation of Brian J. Davis in Supp. of CNS’ Mot. for Summ. J. (“Davis Affirmation”) Ex. C ¶ 21)); id. ¶¶ 12-13.) CNS allegedly was aware of this, as to CCCC, because it audited the company and prepared its IRS Form 990 for the 2003 tax year, and as to Cambridge/Brighton, because it audited the company for the 2004 tax year. (Id. ¶ 13; see also Def.’s Letter of Feb. 11, 2010 (“Def.’s February 2010 Letter”) at 2.) Additionally, the Zimmerman Complaint states that CNS knew that CCCC and Cambridge/Brighton had engaged, or were engaging in, unlawful acts, government lawsuits, and other government investigations prior to preparing the IRS Form 990s. (Def.’s 56.1 ¶ 10; see also Def.’s February 2010 Letter at 2.) This knowledge of these entities’ wrongful acts [467]*467and representations is, so the Zimmerman plaintiffs claim, attributable to CNS’s access to and familiarity with CCCC and Cambridge/Brighton’s business and financials. (Def.’s 56.1 ¶ 13.) Despite such awareness, CNS agreed to audit CCCC and Cambridge/Brighton in 2005, preparing, signing, and filing Form 990 returns with the IRS that misrepresented these entities’ services. (Id. ¶¶ 11,13.)

The Zimmerman Complaint sought two forms of recovery from defendants: (1) recovery of the proceeds from the constructive trust (created in the Massachusetts district court action), from which CNS allegedly was paid monies, and which the Zimmerman plaintiffs assert constitute class assets (id. ¶ 15);5

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933 F. Supp. 2d 463, 2013 WL 1248629, 2013 U.S. Dist. LEXIS 44976, Counsel Stack Legal Research, https://law.counselstack.com/opinion/silverman-neu-llp-v-admiral-insurance-nyed-2013.