ABDUL K. KALLON, United States District Judge.
Plaintiffs C. Stanley Bailey, John Figlewski, Rick D. Gardner, George J. Hall, Rick Halloran, James M. Kent, Jr., Peter L. Lowe, Shannon Maddox, D. Dewey Mitchell, Robert R. Parrish, Jr., Kenneth Pomeroy, C. Marvin Scott (collectively "the Bailey Plaintiffs"), and Intervenor Plaintiffs James A. White and William Caughran (collectively "the Intervenor Plaintiffs") (collectively "the Plaintiffs"), pursue this action against Federal Insurance Company pursuant to 28 U.S.C. § 2201 seeking a declaration of rights and obligations under a liability insurance policy. Docs. 1 at 3; 24 at 5-6; 29 at 5-6.
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper "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." "Rule 56[] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (alteration in original). The moving party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. The burden then shifts to the nonmoving party, who is required to "go beyond
The court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); see also Anderson, 477 U.S. at 255, 106 S.Ct. 2505 (all justifiable inferences must be drawn in the non-moving party's favor). Any factual disputes will be resolved in the non-moving party's favor when sufficient competent evidence supports the non-moving party's version of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir. 2002) (a court is not required to resolve disputes in the non-moving party's favor when that party's version of events is supported by insufficient evidence). However, "mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion." Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, "[a] mere `scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252, 106 S.Ct. 2505).
The Plaintiffs are former officers and directors of Superior Bancorp, a holding company for Superior Bank. Docs. 34 at 6; 81-2 at 15-17. In their capacity as officers and directors, Plaintiffs regularly purchased liability insurance coverage, including Directors and Officers insurance (D & O), for Superior Bancorp and Superior Bank from Federal. Id. D & O policies are used to protect the directors and officers of a corporation against claims that they allegedly failed to perform their duties. Docs. 35-2 at 10; 81-1 at 25.
The dispute in this case centers on a D & O policy Plaintiffs purchased through their broker, the Mailon Kent Agency, whose owner, Mailon Kent, was also a director of Superior Bancorp. Doc. 81-3 at 16. From April 2009 until April 2010, the D & O policy had a $10 million coverage limit that contained no regulatory limitations or exclusions resulting from regulatory claims. Docs. 35-2 at 16; 81-1 at 45. However, when the policy came up for renewal in April 2010, because of the economic climate Federal informed Plaintiffs that it intended to change the terms of the policy to offer liability coverage with a regulatory exclusion endorsement and defense carveback.
As part of its operating practice and procedure, Federal has various standard endorsements or policies its underwriters may retrieve and insert into a policy. Doc. 35-2 at 12. In contrast, a manuscript endorsement is one that is created for a specific policy with the attendant language changes that may be necessary. Doc. 35-2 at 13. Basically, when an underwriter wishes to use language that is not standard, the underwriter sends the desired language to Federal's legal counsel for that department to create an endorsement, i.e., "manuscripted." Doc. 35-2 at 12-13. Federal utilized this practice for the new policy it issued to Plaintiffs because although Federal already had defense carvebacks in place for some financial institutions, it did not have a standard endorsement available with the exclusion that was widely used for banks. Docs. 35-2 at 20, 40; 86-4 at 12. As a result, Federal manuscripted an endorsement for the policy it issued Plaintiffs in April 2010.
Federal finally transmitted the final binders containing the policy to Plaintiffs in July 2010. Doc. 81-8 at 124. By then, Federal had created a standard version of the regulatory exclusion endorsement and placed this standard version in the policy. Doc. 35-12 at 2. However, apparently because it viewed the endorsement as "unique" and not subject to the filing requirement imposed by Ala. Code § 27-14-8, doc. 35-10 at 8, Federal waited until September 6, 2010 to file the endorsement with the Alabama Department of Insurance, docs. 35-4 at 4; 35-17 at 2-3.
Superior Bank failed a year after Federal issued the new policy and six months after Federal filed the endorsement. The FDIC takeover and its litigation against Plaintiffs triggered Plaintiffs to request coverage from Federal for defense costs. Doc. 39-1 at 28. By a letter dated May 11, 2011, Federal informed Plaintiffs it intended to cap the coverage for defense costs at $1 million because of the regulatory exclusion cap. Doc. 35-3 at 2-7. Although Plaintiffs never raised any objections to the policy or its endorsement, see, e.g., doc. 81-1 at 96; 81-7 at 63-64, Plaintiffs now seek to void the policy due to alleged deficiencies. Specifically, Plaintiffs maintain that the failure to file prior to issuing the policy that forms Plaintiffs contentions in this case that the defense carveback contained in the endorsement is null and void as a result and that Federal is obligated to provide coverage without the $1 million sublimit.
Plaintiffs seek to void the Endorsement and ultimately get coverage beyond the $1 million limit. In particular, in Counts I and II, Plaintiffs move for a Declaratory Judgment pursuant to 28 U.S.C. § 2201, declaring the Regulatory Exclusion Endorsement null and void due to Federal's failure to (1) file the endorsement in compliance with Ala. Code § 27-14-8, and (2) disclose the terms of the endorsement before materially altering the policy. Doc. 1 at 17. And, in Counts III and IV, Plaintiffs seek reformation of the insurance contract and state a claim for breach of contract, respectively.
With these general principles in mind, the court turns its attention to the policy provision at issue and the parties' respective contentions. The court will begin first with Plaintiffs' contentions that they are entitled to a declaratory judgment due to Federal's purported failure to disclose a material alteration to the policy (Count II) or, alternatively, that they are entitled to a reformation of policy (Count III). Finally, the court will address Plaintiffs' contentions that the endorsement is null and void due to the filing deficiency (Count I) and the related breach of contract claim (Count IV).
In Count II, Plaintiffs contend that they are entitled to a declaratory judgment based on the alleged failure of Federal to disclose a material alteration to their policy. Doc. 1 at 18-19. Plaintiffs do not allege that they reasonably relied upon Federal's representations about the substance of the challenged endorsement or that Federal fraudulently induced them to sign the Policy. Instead, they claim that because Federal appended the draft endorsement to the policy binder in April 2010 and failed to file the endorsement with the Alabama Department of Insurance, Federal cannot rely on the endorsement to limit its coverage. Doc. 1 at 18-19. After a careful review of the law and the evidence, the court finds that Federal is due summary judgment on this claim.
A fraud claim based on suppression requires: (1) a false representation concerning an existing material fact; (2) made with knowledge of the falsity or with reckless regard for truth or falsity; (3) reasonable reliance on the representation by the plaintiff who was, in fact, deceived
Turning to the facts in this case, the evidence establishes that Federal placed Plaintiffs on notice that their renewed policy would include a Regulatory Exclusion Endorsement. First, Mailon Kent, one of the Bailey plaintiffs and the owner of the agency responsible for procuring the liability insurance, played a direct role in the procurement process. Doc. 81-4 at 36. Although Kent contends that he never read the emails alerting him to the change in coverage and that he assigned that task instead to a subordinate, doc. 81-4 at 69-70 ("I don't think I read this.... I depended on Pam [Bowden] to handle that."), the employee in question testified that she discussed the policy with Plaintiffs. According to the employee, "it was not a surprise to [Plaintiffs] about either endorsement... because it had been discussed previously with them," and that although she would not have used the word "carveback," she discussed that the policy had a "million dollar sub-limit." Doc. 81-8 at 67, 105-6. Significantly, Plaintiffs corroborated her testimony. For example, Bailey testified that he had no reason to believe that the employee did not discuss the regulatory exclusion with defense carveback with him, doc. 81-1 at 33-36, and the other Plaintiffs also acknowledge that they had discussions with Federal regarding the contraction of the scope of coverage, docs. 81-3 at 32-33; 81-4 at 91-93, 99-101; 81-5 at 18; 81-7 at 51, 53. Moreover, although Plaintiffs claim they never read the policy and did not understand the term "defense carveback," they acknowledge that they knew the policy had a $1,000,000 limitation on defense costs. Docs. 39-1 at 18, 20, 24; 81-7 at 50, 56, 76; 81-1 at 79. In fact, the documents produced and conversations Plaintiffs detailed in their depositions demonstrate that Plaintiffs had notice that the scope of their coverage had materially changed, and that Plaintiffs accepted the new terms in part because they had limited options with respect to increasing their coverage due to the state of the banking environment. See, e.g., docs. 81-4 at 46 ("we would have loved to — we would have loved to have had, you know, more D & O coverage, but I think the industry could see what was happening to the banks, so everyone started dropping it."); 39-1 at 10 ("I knew it [the practice of regulatory exclusions] was going on in the industry. It had been discussed at the initial fact-finding lunch, that was one of the trends that the insurance companies were seeing with all the turmoil that was going on in the industry."). Finally, the court notes also that, after Federal issued the policies and Plaintiffs forwarded them to the legal department, no one at Superior alleged that the D & O policy contained a mistake in its provision of coverage or that the policy documents failed to include material terms that Plaintiffs had agreed to in accepting the coverage. Docs. 39-1 at 26; 81-4 at 102, 115, 117; 81-7 at 63; 81-8 at 127-129.
In Count III, Plaintiffs seek reformation of the policy to omit the regulatory exclusion endorsement based on their contention that "Federal incorrectly represented that the regulatory exclusion in the renewed Policy would be the Regulatory Sub-Limit Endorsement" and "did not disclose the Regulatory Exclusion Endorsement... before the renewed Policy dated July 19, 2010 was delivered." Doc. 1 at 21. Reformation is used to "make [the contract] conform to the intention of the parties where, through mutual mistake, their intention is not so expressed...." Original Church of God, Inc. v. Perkins, 292 Ala. 283, 293 So.2d 292, 293 (1974). In the insurance contract context, reformation is an appropriate remedy where a carrier failed to give notice to an insured of the enlargement or material change to a policy prior to renewal. See generally Reynolds, 494 So.2d 609. To invoke the remedy the moving party must demonstrate "by evidence that is clear, exact, convincing and satisfactory that [the contract] does not express the true agreement of the parties." Perkins, 293 So.2d at 293. Plaintiffs have failed to make the necessary showing and, as such, are not entitled to reformation.
Contrary to Plaintiffs' contentions, the record establishes that Federal placed them on notice that their renewed policy would have decreased D & O coverage and a regulatory exclusion. See, e.g., doc. 81-5 at 36-37 (Plaintiff Caughran stating: "I understood that there would be no money available for regulators, yes."). To get around this disclosed fact, Plaintiffs contend that they are challenging instead Federal's decision to use a final endorsement that differed from the one Federal presented in the initial email transmitting the policy. Doc. 98 at 29-30. While Plaintiffs are technically correct, their contention is unavailing for several reasons. First, Plaintiffs overlook that Federal labeled the endorsement as "Draft" and that it contained no terms, effective dates, or policy amounts. Doc. 35-11 at 13. Instead, the initial email outlined a discussion Federal
Construing all evidence in favor of Plaintiffs, no valid basis exists for Plaintiffs to contend that Federal made a mistake or engaged in fraud that would warrant reformation. To the contrary, the record establishes that Plaintiffs received the coverage that they bargained for with Federal. While it is evident from this lawsuit that Plaintiffs now disagree with the limited coverage provided, "[r]eformation is not available to make a new agreement." Highlands Underwriters Ins. Co. v. Elegante Inns, Inc., 361 So.2d 1060, 1064 (Ala. 1978). Accordingly, Federal is entitled to summary judgment on Count III.
In Count I, Plaintiffs seek declaratory judgment that the Regulatory Exclusion Endorsement (the "Endorsement") is void due to Federal's purported failure to comply with § 27-14-8's filing requirement. At issue is Federal's failure to file the endorsement with the Alabama Department of Insurance before the policy's issuance. As Plaintiffs note, the Alabama legislature has created a department of insurance that is responsible for receiving and granting approval of insurance rates, rating systems, as well as endorsements and riders. See Ala. Code §§ 27-2-1, et seq. Relevant here, Alabama law provides in part that:
Ala. Code § 27-14-8(a). Subsection (b) states in turn that "every such filing shall be made not less than 30 days in advance of any such delivery." Ala. Code § 27-14-8(b). While property and casualty forms are exempted from the thirty day filing requirement, insurance companies are still required to file their forms with the Alabama Insurance Department prior to their issuance. See Ala. Admin. Code § 482-1-123-.04(1).
In this case, Federal filed the endorsement approximately five months after it presented the initial binder to Plaintiffs and two months after it issued the policy, and, as such, failed to comply with § 27-14-8. Based on this failure to comply, Plaintiffs direct the court to several Alabama cases which they say support their position that the endorsement is null and void as a result. The key case is Aetna Ins. Co. v. Word, 611 So.2d 266, upon which both parties rely in their briefs. In that case, Aetna sought to enforce an endorsement it filed with the state over a month after the effective date of a policy it issued. 611 So.2d at 267. The Alabama Supreme Court disagreed, noting that in addition to the delay in filing, the endorsement Aetna attached to the policy also differed from the endorsement Aetna relied on in court. Id. The parties disagree about the significance, if any, of the fact that the insurer in Word never filed the actual endorsement with the state. Presumably because the endorsement Federal filed after it issued the endorsement is the same as the one it is relying on in this case, Federal contends that Word supports its contention that its late filing is valid. See doc. 102 at 14-15. Plaintiffs disagree with this contention and direct the court to Attorney's Ins. Mut. of Alabama, Inc. v. Alabama Dept. of Ins., 64 So.3d 1 (Ala. Civ. App. 2010), in which the Alabama Court of Civil Appeals affirmed the Commissioner's finding that the insurer's compliance with the filing requirement after-the-fact did not excuse the failure to initially comply: "We agree ... with the trial court's decision to affirm the determination of the commissioner, in which the commissioner stated that `[a]lthough AIM has complied after the fact in regards to allowing insured to pay premiums in installments, during the period cover[ed in the examination report,] AIM was in violation of § 27-12-14.'" 64 So.3d at 21-22.
Based on Attorney's Mutual, it seems that Plaintiffs are correct that a proper reading of Word's holding suggests that Federal's two-month delay in filing, in the face of a statute that mandates filing prior to issuance, necessarily means that Federal's filing after-the-fact is not in compliance with the statute. See Ala. Code. § 27-14-8(b); Ala. Admin. Code § 482-1-123-.04(a).
To get around its failure to file in advance of issuing the policy, Federal raises several arguments. First, Federal alleges the commercial casualty policy it issued is exempted from the thirty-day filing requirement contained in Ala. Code § 27-14-8(b) by Ala. Admin. Code § 482-1-123-.04(a). Indeed, the exemption allows insurers to operate under the "File and Use System." Ala. Admin. Code § 482-1-123.04. Under this system, an insurance company must file its form "with the regulator on or before the date of use [by the company]." Ala. Admin. Code § 482-1-123.03(3). Also, this section of the Administrative Code anticipates that any modifications a regulator requests will be made on a prospective basis, id. which Federal argues means that this system implicitly rejects Plaintiffs' contention that they are entitled to void the endorsement. However, even under a "File and Use" system, there is no language in the regulations that exempts an insurer from the initial obligation to file its forms with the Department of Insurance prior to using them in this state. As a result, because it is undisputed that Federal filed the endorsement well after it issued the policy, Federal cannot rely on the exemption in Ala. Admin. Code § 482-1-123-.04(a) to cure its failure to file its form prior to issuance.
Second, in reliance on Am. Auto. Ins. Co. v. McDonald, 812 So.2d 309, 311-12 (Ala. 2001), Federal asserts that Plaintiffs do not have standing to bring a claim for a violation of the Insurance Code. The reliance on McDonald is misplaced because the court focused on the fact that the plaintiff had no relationship with the insurer at the time the plaintiff sought to file a claim against the company for selling policies without a license. 812 So.2d at 312. In contrast, here, Plaintiffs are the insureds. In addition, based on the holdings in Aetna Ins. Co. v. Word, 611 So.2d 266 (Ala. 1992), Waikar v. Royal Ins. Co. of Am., Inc., 765 So.2d 11 (Ala. Civ. App. 1999), and African Methodist Episcopal Church, Inc. v. Smith, 2016 WL 4417268 (Ala. 2016), the Alabama appellate courts have recognized that a party to an insurance contract has an action where an endorsement that is not in compliance with Alabama law restricts coverage and the endorsement's invalidity may change the scope of insurance coverage.
Third, Federal contends that the endorsement qualified as "unique" within the meaning of § 27-14-8(a), and, as such, it was exempt from the filing requirement. Doc. 40 at 12-16. This argument centers on the fact that Federal had not used Form 14-02-16863, the official designation of the endorsement, in Alabama at the time it created it for Plaintiffs. Id. Plaintiffs counter that the endorsement is not
In interpreting a statute, "the starting point ... is the language of the statute itself." Bankston v. Then, 615 F.3d 1364, 1367 (11th Cir. 2010) (internal quotations omitted). In this case, the statute excludes from the filing requirements "policies, riders, endorsements or forms of
A plaintiff establishes a breach of contract claim by showing: (1) the existence of a valid contract binding the parties; (2) his performance under the contract; (3) the defendant's nonperformance; and (4) damages. Southern Medical Health Sys., Inc. v. Vaughn, 669 So.2d 98, 99 (Ala. 1995). The existence of a contract is obviously not in dispute, nor is it disputed that Plaintiffs performed under the policy by paying their premiums. Because resolution of this claim hinges on whether the regulatory exclusion endorsement is void and
For the foregoing reasons, the Plaintiffs' motion for summary judgment is due to be denied as to Counts I (Declaratory Judgment for Failure to File) and IV (Breach of Contract), and Federal's motions for summary judgment are due to be granted as to Counts II (Declaratory Judgment for Failure to Disclose) and III (Reformation), and due to be denied in all other respects.