Westport Insurance v. Hamilton Wharton Group Inc.

483 F. App'x 599
CourtCourt of Appeals for the Second Circuit
DecidedMay 17, 2012
DocketNos. 11-1153-cv LEAD, 11-1493-cv XAP
StatusPublished
Cited by17 cases

This text of 483 F. App'x 599 (Westport Insurance v. Hamilton Wharton Group Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Westport Insurance v. Hamilton Wharton Group Inc., 483 F. App'x 599 (2d Cir. 2012).

Opinion

SUMMARY ORDER

Appellant Westport Insurance Corporation (‘Westport”) appeals from the February 23, 2011 Decision and Order of the United States District Court for the Southern District of New York (Berman, J.), granting summary judgment to the appellees and dismissing Westport’s declaratory judgment action (the “DJ Order”). West-port sought a declaratory judgment that a professional liability insurance policy (the “Policy”) issued by Westport to Appellee Hamilton Wharton Group, Inc. (“Hamilton Wharton”) does not impose upon Westport either a duty to defend or a duty to indemnify Hamilton Wharton in four lawsuits filed in New York State Supreme Court (the “State Actions”) against Hamilton Wharton and its owner, Walter B. Taylor (“Taylor,” together with Hamilton Wharton, the “Defendants”). In the DJ Order, the district court found that (i) Westport had a duty to defend the Defendants and (ii) the complaint should be dismissed as “premature” with respect to the Defendants’ duty to indemnify because “issues of fact on which the insurance coverage de[603]*603pends” have yet to be adjudicated in the State Actions. On March 31, 2011, the district court awarded the Defendants’ counsel attorneys’ fees in the amount of $159,477.50 and costs of $26,817.91 (the “Attorneys’ Fees Award”). Both Westport and the Defendants also appeal from the Attorneys’ Fees Award. We assume the parties’ familiarity with the facts, procedural history, and issues presented for review.

We review de novo the district court’s grant of summary judgment, “construing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in its favor.” Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir.2011); see Fed.R.Civ.P. 56(a).

The district court did not err in concluding that the State Actions trigger Westport’s duty to defend. Under New York law — which the parties agree applies in this case — an insurer’s duty to defend is broader than its duty to indemnify and has been described by the New York Court of Appeals as “exceedingly broad.” Colon v. Aetna Life & Cas. Ins. Co., 66 N.Y.2d 6, 8, 494 N.Y.S.2d 688, 484 N.E.2d 1040 (1985). Indeed, “[s]o long as the claims [asserted against the insured] may rationally be said to fall within policy coverage, whatever may later prove to be the limits of the insurer’s responsibility to pay, there is no doubt that it is obligated to defend.” Seaboard Sur. Co. v. Gillette Co., 64 N.Y.2d 304, 310-11, 486 N.Y.S.2d 873, 476 N.E.2d 272 (1984) (alterations in original) (internal quotation marks omitted).

Here, the claims asserted against West-port may rationally be said to fall within the Policy’s coverage. The “professional services” contemplated by the Policy encompass at least some of the activities alleged in the State Actions, which included, inter alia, allegations that the Defendants were negligent in handling their funds by: continuing to sign up new participants to join the trust; failing to hire an accountant; offering unwarranted discounts to trust members; failing to implement safety audits; and failing to conduct payroll audits.

Westport contends that the Policy’s Insolvency Exclusion bars coverage for the underlying complaints and that the district court erred because it failed to analyze this exclusion. The district court did not address the applicability of the Insolvency Exclusion for good reason. To the extent the issue was raised below at all, Westport offered only conclusory assertions that the Insolvency Exclusion barred coverage even though Westport bore the “heavy burden” of establishing the applicability of the exclusion. Commercial Union Assurance Co. v. Oak Park Marina, Inc., 198 F.3d 55, 61 (2d Cir.1999). Westport’s con-clusory assertions, rather than argument, were insufficient to preserve this issue for appellate review. See Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 154 (2d Cir.1999). “‘It is a well-established general rule that an appellate court will not consider an issue raised for the first time on appeal.’ ” Allianz Ins. Co. v. Lerner, 416 F.3d 109, 114 (2d Cir. 2005) (quoting Greene v. United States, 13 F.3d 577, 586 (2d Cir.1994)). While we have the discretion to relax this rule to consider a purely legal issue or to avoid manifest injustice, we see no reason to exercise such discretion under the circumstances of this case. Id. Moreover, we are not persuaded that all of the claims against Hamilton Wharton and Taylor in the underlying complaints would fall within the scope of the Insolvency Exclusion. Notably, the Niagara complaint lacks any [604]*604allegations referring to the trust’s insolvency or financial inability to pay.

Next, Westport contends that the district court erred in dismissing as premature Westport’s action as to its duty to indemnify. We review a district court’s decision to refuse to exercise jurisdiction over a declaratory judgment action “deferentially, for abuse of discretion.” Dow Jones & Co. v. Harrods Ltd., 346 F.3d 357, 359 (2d Cir.2003). Where, as here, “another suit is pending in a state court presenting the same issues, not governed by federal law, between the same parties,” it is entirely appropriate for a district court to dismiss a declaratory judgment action. Wilton v. Seven Falls Co., 515 U.S. 277, 282, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995) (internal quotation marks omitted). As the district court noted, the declaratory judgment action and the State Actions have numerous unresolved issues in common, including whether the Defendants were negligent or breached fiduciary or contractual obligations. As a result, the district court did not abuse its discretion in dismissing as premature the indemnification portion of Westport’s declaratory judgment action.

We also reject Westport’s contention that it was prejudiced because the district court denied its request for discovery in response to the Defendants’ motion for summary judgment. See Fed.R.Civ.P. 56(d); see also Gualandi v. Adams, 385 F.3d 236, 244-45 (2d Cir.2004). In assessing whether Westport had a duty to defend and indemnify, the district court was required to “compare the allegations of the complaint to the terms of the policy.” A. Meyers & Sons Corp. v. Zurich Am. Ins. Grp., 74 N.Y.2d 298, 302, 546 N.Y.S.2d 818, 545 N.E.2d 1206 (1989).

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483 F. App'x 599, Counsel Stack Legal Research, https://law.counselstack.com/opinion/westport-insurance-v-hamilton-wharton-group-inc-ca2-2012.