F I L E D
                                                          United States Court of Appeals
                                                                  Tenth Circuit
                  UNITED STATES COURT OF APPEALS
                                                                 FEB 22 2001
                         FOR THE TENTH CIRCUIT
                                                            PATRICK FISHER
                                                                      Clerk

CONTINENTAL CASUALTY COMPANY,

      Plaintiff-Counter-Defendant,

v.

CHARLES HEMPEL,

      Defendant-Appellant and Cross-
      Appellee,                                  Nos. 97-2136, 97-2147
                                                 (D.C. No. CIV-94-412-
and                                                    JC/WWD)
                                                       (D. N.M.)
PATRICK L. WESTERFIELD, as Personal
representative of the Estate of Frank O.
Westerfield, Jr., deceased,

      Defendant-Third Party Plaintiff-Counter-
      Defendant-Appellant and Cross-
      Appellee,

v.

INSURANCE COMPANY OF NORTH
AMERICA,

      Third-Party-Defendant-Counter
      Defendant-Counter Claimant-Third
      Party Plaintiff-Appellee and Cross-
      Appellant,

v.

HARTFORD ACCIDENT & INDEMNITY
COMPANY; UNITED STATES FIRE
INSURANCE COMPANY; ST. PAUL FIRE
AND MARINE INSURANCE COMPANY,

      Third Party Defendants-Counter
      Defendants-Counter Claimants-
      Third Party Plaintiffs,

v.

ROY AND VIRGINIA TAUCHE REVOCABLE
LIVING TRUST; FRANCIS M. GRAHAM
REVOCABLE TRUST; ROXANNE GRAHAM
IRREVOCABLE TRUST; ROXANNE
GRAHAM REVOCABLE TRUST; THOMAS
TAUCHE IRREVOCABLE TRUST; WALTER
TAUCHE IRREVOCABLE TRUST; THOMAS
TAUCHE, only to the extent of any interest as a
Beneficiary and/or as Trustee of one or more of
named Trusts; ROY TAUCHE, only to the
extent of any interest as a Beneficiary and/or as
Trustee of one or more of the Trusts;
VIRGINIA TAUCHE, only to the extent of any
interest as a Beneficiary and/or as Trustee of
one or more of the Trusts; ROXANNE
GRAHAM, only to the extent of any interest as
a Beneficiary and/or as Trustee of one or more
of the Trusts; WALTER TAUCHE, only to the
extent of any interest as a Beneficiary and/or as
Trustee of one or more of the Trusts,

      Third-Party Defendants-Counter
      Defendants.




CONTINENTAL CASUALTY COMPANY,

      Plaintiff-Counter-Defendant-Appellee,

v.

                                        2
CHARLES HEMPEL,

      Defendant-Appellant and Cross-
      Appellee,

and                                             Nos. 97-2190, 97-2194,
                                                        97-2195
PATRICK L. WESTERFIELD, Representative          (D.C. No. CIV-94-412-
of the Estate of Frank O. Westerfield, Jr.,           JC/WWD)
deceased,                                              (D. N.M.)

      Defendant-Third-Party-Plaintiff-Counter
      Defendant-Appellant and Cross-
      Appellee,

v.

HARTFORD ACCIDENT & INDEMNITY
COMPANY; INSURANCE COMPANY OF
NORTH AMERICA; UNITED STATES FIRE
INSURANCE COMPANY,

      Third-Party-Defendants-Counter
      Defendants-Counter Claimants-
      Third-Party Plaintiffs,

v.

ST. PAUL FIRE AND MARINE INSURANCE
COMPANY,

      Third-Party-Defendant-Counter
      Defendant-Counter Claimant-Third-Party
      Plaintiff-Appellee and Cross-Appellant,

v.

ROY AND VIRGINIA TAUCHE REVOCABLE


                                       3
 LIVING TRUST; FRANCIS M. GRAHAM
 REVOCABLE TRUST; ROXANNE GRAHAM
 IRREVOCABLE TRUST; ROXANNE
 GRAHAM REVOCABLE TRUST; THOMAS
 TAUCHE IRREVOCABLE TRUST; WALTER
 TAUCHE IRREVOCABLE TRUST; THOMAS
 TAUCHE, only to the extent of any interest as a
 Beneficiary and/or as Trustee of one or more of
 named Trusts; ROY TAUCHE, only to the
 extent of any interest as a Beneficiary and/or as
 Trustee of one or more of the Trusts;
 VIRGINIA TAUCHE, only to the extent of any
 interest as a Beneficiary and/or as Trustee of
 one or more of the Trusts; ROXANNE
 GRAHAM, only to the extent of any interest as
 a Beneficiary and/or as Trustee of one or more
 of the Trusts; WALTER TAUCHE, only to the
 extent of any interest as a Beneficiary and/or as
 Trustee of one or more of the Trusts,

          Third-Party-Defendants-Counter
          Defendants.




                            ORDER AND JUDGMENT         *




Before HENRY , HOLLOWAY , and BALDOCK , Circuit Judges.




      Continental Casualty Company (CNA) filed this action seeking a

      *
             This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

                                           4
declaratory judgment that it had no obligation to indemnify one of its insureds,

Frank O. Westerfield, Jr. (Mr. Westerfield), on a New Mexico state court

judgment. CNA alleged that the judgment arose out of a collusive settlement

between Mr. Westerfield and Mr. Charles Hempel. Mr. Hempel was the plaintiff

in the state court proceedings against Mr. Westerfield.

        As personal representative of his father’s estate, Patrick Westerfield

responded to CNA’s allegations by filing counterclaims for bad faith denial of

coverage against CNA and five other insurers. He also filed a claim against the

Insurance Company of North America (INA), alleging that his father was entitled

to coverage for part of the state court judgment on the basis of a professional

liability policy issued by that insurance company for the period from 1968 to

1969.

        The insurers then filed crossclaims against Messrs. Hempel and

Westerfield. In its crossclaim, St. Paul Fire and Marine Insurance Company (St.

Paul) alleged that the two men had fraudulently induced it into paying $300,000

to Mr. Hempel under one of the policies it had issued to Mr. Westerfield.

        In a series of decisions, the district court ruled as follows: (1) it granted

summary judgment to the insurers on their claim that the state court judgment was

collusive and that, as a result, the subject policies did not provide coverage for

that judgment, see Continental Casualty Co. v. Westerfield     , 

(D.


                                            

); (2) it granted summary judgment in favor of Messrs. Westerfield and

Hempel and against St. Paul on St. Paul’s fraud claim to recover the $300,000

that it had paid to Mr. Hempel; (3) it granted summary judgment in favor of INA

and against Mr. Westerfield on Mr. Westerfield’s claim that he was entitled to

coverage under the 1968-69 professional liability policy.

      The losing parties as to all three of those rulings have now appealed. For

the reasons set forth below, we affirm the district court’s decisions.



                                 I. BACKGROUND

                               A. The state court case

      The underlying state court action began in the Travis County, Texas probate

court following the death of Mr. Hempel’s mother, Ada Mudge, in 1991. The

dispute concerned Ada Mudge’s rights under the will of her late husband Daniel

Mudge, who died in 1959. The principal asset of Mr. Mudge’s estate was 23,400

shares of common stock in what later became the Tandy Corporation.

      Daniel Mudge’s will directed his estate to be divided between Ada Mudge

and Mr. Mudge’s two daughters from a previous marriage, Francis Graham and

Virginia Tauche. The will appointed Eugene Graham, Mr. Mudge’s son-in-law as

executor, directed him to establish two trusts (an “Annuity Trust” and a

“Residuary Trust”), and appointed Mr. Graham as trustee.


                                          6
       Under the will, the Annuity Trust was to be funded with one third of “any

and all stocks, bonds, and like securities of every nature and description.” Aplts’

App. (case nos. 97-2190, 2194, 2195) vol. VIII, at 2342. The will directed the

trustee to pay to Ada Mudge during her lifetime “all income as may be derived

from the dividends from such securities.”        

Trust was to be

funded with “the rest, residue, and remainder” of the estate.     

directed

the trustee to pay to Ada Mudge, Francis Graham, and Virginia Tauche one-third

of the rents and profits from the Residuary Trust during Ada Mudge’s lifetime.

       Eugene Graham did not comply with the terms of the will. Rather than

creating two trusts and designating Ada Mudge as a life beneficiary, he created

only one trust and distributed two-thirds of the stock held by the estate to the two

daughters. He also converted 5,000 of the 7,800 shares of remaining stock into

debentures.

       Mr. Graham died in 1964, and the Bernallilo County, New Mexico District

Court appointed First National Bank of Albuquerque (the Bank) as the successor

trustee. The court appointed Mr. Westerfield as the attorney for the trust.

Eventually, in Feburary 1976, the Bank created two trusts—the Annuity Trust and

the Residuary Trust.   See 

       Following Ada Mudge’s death in 1991, the Bank filed a petition seeking

instructions regarding the proper distribution of the Annuity Trust and Residuary


                                             7
Trust assets. The case was transferred to the Bernallilo County District Court.

Mr. Hempel responded to the Bank’s petition and asserted counterclaims and

crossclaims against the Bank, Mr. Westerfield, Francis Graham, and the estate of

Virginia Tauche. Mr. Hempel alleged that these parties had participated in the

wrongful appropriation of trust assets in contravention of Daniel Mudge’s will.

He asserted claims for breach of fiduciary duty, negligence, gross negligence,

tortious interference, fraud, conversion, legal malpractice, breach of contract, and

prima facie tort. He also asserted various equitable claims seeking an accounting

of the trust assets and a return of property to Ada Mudge’s estate.

      Mr. Hempel’s allegations against Mr. Westerfield encompassed a period of

more than twenty-five years, from before Eugene Graham’s death in 1964 until

1991. According to Mr. Hempel, Mr. Westerfield knew about Eugene Graham’s

misappropriation of trust assets before the court appointed him as attorney for the

trust, but he failed to inform Ada Mudge, thereby breaching his duty to her as a

beneficiary. Subsequently, Mr. Westerfield filed petitions with the court without

notice to Mrs. Mudge. Mr. Hempel alleged that these petitions distorted the terms

of the trusts and led the court to authorize distributions of trust assets inconsistent

with the terms of the will. Mr. Hempel further maintained that on several

occasions Mr. Westerfield sent Mrs. Mudge misleading waivers and releases that

purported to surrender any future claims for money from the trusts. According to


                                           8
Mr. Hempel, Mr. Westerfield persuaded Mrs. Mudge to sign these waivers and

releases in exchange for additional distributions from the trusts. These

documents did not inform Mrs. Mudge of her actual rights under the trusts.

       Mr. Westerfield had insurance coverage with various insurers, including

CNA, St. Paul, Home Insurance Company (Home), and Ranger Insurance

Company (Ranger). He requested the insurers to provide a defense to Mr.

Hempel’s lawsuit.

       Home and St. Paul agreed, but CNA refused to provide coverage. CNA

maintained that the Mr. Hempel’s allegations fell within its policies’ exclusions

for “dishonest, fraudulent, criminal, or malicious act[s] or omission[s].”       See

Aplts’ App. (case nos. 97-2190, 2194, 2195) vol. VI, at 1646. As to one of its

policies, CNA further maintained that there was no coverage because Mr.

Hempel’s action had not been filed within “fifteen years of the end of the annual

policy period, in which the act, error or omission occurred.”       

separate ruling that is not directly at issue in these appeals, the federal

district court concluded that CNA breached its duty to defend Mr. Westerfield.

The court reasoned that Mr. Hempel had made allegations that “could be

categorized as either fraudulent wrongdoing, excluded from coverage . . . , or

professional negligence, an insurable risk.”       

at 262. It noted that Mr.

Hempel had asserted claims for negligence, gross negligence, legal malpractice,


                                               9
and breach of contract and that his factual allegations comported with those legal

theories.

      Home retained Briggs Cheney to represent Mr. Westerfield in the Hempel

litigation. After conducting discovery, Mr. Cheney concluded that “[t]here

clearly exist circumstances which I believe can create liability for Mr.

Westerfield, the bank, and the daughters and I think the court will so find.”

Aplts’ App. (case nos. 97-2190, 2194, 2195) vol. VI, at 1625. To Mr. Cheney, the

central issue in the case was the determination of the amount of damages to which

Ada Mudge’s estate was entitled and the determination of which parties should be

held responsible for them.

      The damages issue turned on the interpretation of Daniel Mudge’s will. As

noted above, the will provided that, during her lifetime, Ada Mudge was entitled

to “all income as may be derived from the dividends from . . . securities” held in

the Annuity Trust and one-third of the “rents and profits” from the Residuary

Trust. See Aplt’s App. (case nos. 97-2190, 2194, 2195) vol. VIII, at 2342. Since

Daniel Mudge’s death in 1959, the primary trust asset—the Tandy Corporation

shares— had multiplied through various stock dividends and stock splits, and the

formation of subsidiary entities that had also issued stock splits. The question for

the parties was whether these various stock dividends, stock splits, and stock

spinoffs should be treated as “income . . . derived from the dividends from . . .


                                          10
securities” and “rents and profits,”    

Ada Mudge’s estate would be

entitled—or alternatively, as principal (i.e., part of the trust corpus)—to which the

daughters would be entitled.

       The parties consulted experts who reached contrasting conclusions as to the

value of Ada Mudge’s rights in the trusts. Mr. Hempel’s attorney, John McKetta,

first considered the calculations of a Texas accountant named Thomas Glass. Mr.

Glass had determined that assets to which Ada Mudge was entitled under the

Annuity Trust and Residuary Trust approximated $17,600,000. Mr McKetta also

considered alternative calculations using assumptions more favorable to Mrs.

Mudge’s rights (e.g., that the first trustee had wrongfully converted 5,000 shares

of stock to which Mrs. Mudge was entitled). Under these alternative calculations,

Mrs. Mudge’s estate was entitled to $27,964,836 in trust assets. Aplts’ App. (case

nos. 97-2190, 2194, 2195) vol. III, at 645.

       Then, in 1993, Mr. McKetta retained another expert, New Mexico

accountant Thomas Gilmore. Mr. Gilmore developed a series of alternative

scenarios concerning the rights of Ada Mudge’s estate in the trusts. The

scenarios varied in their treatment of stock dividends, splits, and spinoffs. Under

Mr. Gilmore’s scenarios, the amounts to which the estate was entitled ranged

from $3,711,837 to $35,936,566.        

       In contrast, Mr. Cheney consulted experts who arrived at a much lower


                                             11
valuation of Mrs. Mudge’s interest in the two trusts. In defending Mr.

Westerfield, Mr. Cheney was able to identify New Mexico legal authorities that

provided substantial support for the theory that the stock splits were generally

treated as principal under New Mexico’s statutory law. He contacted experts who

agreed to testify at trial that treatment of the stock splits as principal was

warranted.

      In light of this information, Mr. Cheney advised Home that Mr. Hempel

was severely overvaluing his claims. He reported that his own defense expert had

calculated damages in a range of “a best case basis of approximately $443,000

and a worst case basis of $2.8 million.” Aplts’ App. (case nos. 97-2190, 2194,

2195) vol. VI, at 1696. Mr. Cheney stated that Mr. Hempel was incorrect in

arguing that splits and dividends constituted items of income payable to Ada

Mudge and that he believed that Mr. Westerfield would prevail on that point at

trial. Mr. Cheney also stated that Mr. Westerfield could argue that, to the extent

that Ada Mudge had been injured by the misappropriation of trust assets, the

damages should be paid by the two daughters, because they had received the

profits and earnings that should have gone to her.




             B. The agreement not to execute on Mr. Westerfield’s assets


                                           12
      In the months preceding the March 1994 trial, the parties engaged in

extensive settlement negotiations. In November 1993, Mr. Hempel made a global

settlement demand of $5.5 million in exchange for a release of all claims against

all parties–the Bank, Mr. Westerfield, the two daughters, and the two daughters’

trusts. That settlement offer was not accepted.

      About a week before the trial, Mr. Westerfield hired another attorney,

Floyd Wilson, as personal coverage counsel. At that point, Mr. Wilson and Mr.

Hempel’s attorney, Mr. McKetta, began to discuss the idea of agreeing to an

uncontested trial. In particular, Mr. Wilson and Mr. McKetta discussed a

settlement plan under which, in exchange for cash payments to Mr. Hempel by

certain of Mr. Westerfield’s insurers, those insurers would be released from any

further obligations under their policies, but Mr. Westerfield would not obtain a

release of his liability to Mr. Hempel. Instead, Mr. Hempel would be permitted to

proceed with his claims against Mr. Westerfield. Mr. Westerfield would receive a

covenant not to execute upon his personal assets and would assign his claims

against any insurer unwilling to participate in the settlement. As a result of this

assignment, Mr. Hempel could attempt to recover from Mr. Westerfield’s insurers

the judgment that he obtained in the state court trial against Mr. Westerfield. Mr.

Wilson and Mr. McKetta also discussed the possibility of an agreement under

which Mr. Westerfield would retain a ten percent interest in the recovery from the


                                          13
bad faith actions.

      Around March 15, 1994, Mr. Wilson and Mr. McKetta entered into a

written settlement agreement on behalf of their clients. Under the agreement, Mr.

Hempel executed a covenant not to execute on a judgment against Mr.

Westerfield, although he did not agree to release Mr. Westerfield from liability.

Mr. Westerfield assigned to Mr. Hempel 90% of the proceeds of the bad faith

lawsuit that Mr. Westerfield agreed to pursue against the non-settling insurers

after the entry of judgment in the state court.

      Mr. Cheney explained the agreement to his client in the following terms:

             By this settlement, we have tacitly agreed not to defend
             the action. In fact, it is not necessarily in your best
             interests to do so as it may impact negatively on
             subsequent actions against non-settling or non-
             participating Westerfield professional liability insurance
             carriers . . . .
              . . . it is understood that I will not actively defend you
             in this matter. I am operating on your instructions not to
             actively defend . . . To that end, I . . . will not take
             actions to minimize any judgment which may be entered.

Aplts’ App. (case nos. 97-2190, 2194, 2195) vol. VI, at 1684;    see also CNA Br.

in Chief at 8 (emphasis added).

      After negotiating the agreement, Mr. Hempel settled claims against both the

Bank (for $1,150,000) and against the Mudges’ two daughters ($650,000 for both

of them). The daughters agreed not to take an active role in the state court trial.



                                           14
                    C. The settlements with Home and St. Paul

      Mr. Hempel’s and Mr. Westerfield’s lawyers also explored settlement of

claims pursuant to specific insurance policies. In particular, on March 15, 1994,

Mr. McKenna sent the following letter to Mr. Cheney:

             Dear Briggs,

                    Hempel offers to settle with Westerfield for the
             coverage year time period afforded by the Ranger policy
             for $1,000,000–well under the $5 mm policy limits,
                    This offer expires 5 p.m. Th. 3-17-94

                                Mike McKetta
                                7 p.m. 3-15-94

Aplts’ App. (case nos. 97-2190, 2194, 2195) vol. II, at 457.

      Mr. Cheney conveyed this note to the Ranger (which had issued an excess

liability policy to Mr. Westerfield in the amount of $5,000,000 for the period of

December 5, 1975 through January 5, 1977). Initially, Ranger proposed a

counteroffer of $500,000. However, on March 17, 1994, Ranger agreed to pay the

$1,000,000 sum that Mr. McKetta had demanded in the March 15, 1994 letter.

      On March 18, 1994, Mr. McKetta made a written $300,000 settlement offer

to St. Paul in the following terms: “[t]his settlement demand is made on behalf of

Hempel to settle claims against Westerfield to the extent of coverage under the

following St. Paul policies for payment of the amounts indicated: (1) 583JE7440

$300,000.” 

Mr. McKetta said that the offer would expire on March


                                         15
21, 1994. St. Paul accepted the offer and agreed to pay $300,000 to Mr. Hempel

on the policy. The parties entered into a formal agreement on March 21, 1994.

Apparently, neither Mr. Hempel, nor Mr. Westerfield, nor their attorneys had

advised St. Paul of the settlement with Ranger. It is that failure to disclose the

Ranger settlement that St Paul now alleges to be fraudulent.



                                 D. The lost policy

         A dispute also arose about whether the Insurance Company of North

America (INA) had issued a policy (GLP 090925) to Mr. Westerfield. The only

reference to the existence of that policy is contained in an addendum to an INA

excess insurance policy. The addendum listed policies held by Mr. Westerfield

and described the period of coverage provided by the disputed GLP policy as

from January 1, 1968 to January 1, 1969. It described the policy in the following

terms:

               Professional Liability
               Bodily Injury liab
               $100,000 each person
               $300,000 each occur
               Property damage liab
               $50,000 each occurance [sic]

Aplts’ App. (case nos. 97-2136, 2147) vol. I, at 109.

         INA presented testimony from one of its agents, B.H. Kinney, regarding the

significance of the addendum. Mr. Kinney stated that the GLP policy provided

                                          16
general liability coverage for certain of Mr. Westerfield’s commercial properties

and that the policy did not afford professional liability coverage, despite the

contrary indication in the addendum. He also stated that the coverage limits

listed in the addendum, specifically the split limits for personal injury or property

damage, were inconsistent with professional liability coverage. The record also

indicates that, in the years following the policy period, Mr. Westerfield never

identified or listed the GLP policy on applications for additional professional

insurance.



                               E. The state court trial

      The state court trial was held on March 22, 1994 before Judge Phillip

Ashby. At the beginning of the proceedings, the lawyers representing Messrs.

Hempel and Westerfield informed the judge that they had reached a settlement

under which a judgment would be entered against Mr. Westerfield. Mr. Cheney

(Mr. Westerfield’s lawyer) further explained that the judgment would be “not

recourse against Mr. Westerfield personally” and that “there is an assignment of

proceeds of claims against . . . nonsettling carriers, which will be pursued by Mr.

Hempel and Mr. Westerfield.” Aplts’ App. (case nos. 97-2190, 2194, 2195) vol.

VII at 2061. He added that he had been instructed not to expend any further

efforts to defend Mr. Westerfield, not because “[Mr.] Westerfield would not like


                                          17
to defend his interest . . . [but] because he’s not in a position to do so.”   

offered the written settlement agreement between Messrs. Hempel and

Westerfield into evidence. The judge indicated that, as he understood the trial,

“the whole purpose of this is to allow the Hempels to get a judgment which would

allow them to seek whatever remedies they wish against the other [nonsettling]

carriers.” 

       On behalf of Mr. Hempel, Mr. McKetta called four witnesses. In response,

Mr. Cheney did not conduct cross examination, did not call any witnesses on

behalf of Mr. Westerfield, and did not make an opening statement or a closing

argument.

       Mr. McKetta began with Forrest Smith, a New Mexico attorney who had

worked as the head of a trust department of a bank in Santa Fe and who testified

as an expert witness. Mr. Smith explained that he had reviewed the pleadings and

evidence in the case, including the will of Daniel Mudge, orders of the probate

court, files maintained by the Bank (as trustee of the Residuary and Annuity

trusts), and various accountings performed by the Bank and the executor of the

Mudge estate.

       Based on this evidence, Mr. Smith stated that Eugene Graham, the Bank,

and Mr. Westerfield had all breached their fiduciary duties to Ada Mudge as a

beneficiary of the trusts. As to Mr. Westerfield, Mr. Smith explained that his


                                               18
actions following his appointment as the attorney for the trustee bank in 1964

revealed a conflict of interest: Mr. Westerfield had acted in furtherance of the

interests of two of the beneficiaries (Mrs. Graham and Mrs. Tauche) rather than in

the interests of all of the beneficiaries, including Ada Mudge In certain

instances, Mr. Westerfield had learned of improper distributions of trust assets to

Mrs. Graham and Mrs. Tauche, but he had failed to disclose these distributions to

Ada Mudge and had also failed to protect her interests by seeking to recover these

assets for the trusts. He agreed that Mr. Westerfield’s failure to disclose this

information “result[ed] in a continued failure for Ada Mudge during her lifetime

to continue to enjoy the substantial benefits that Daniel Mudge had designed

under his . . . trusts for her.”   

       Next, Mr. McKetta called Mr. Hempel and his wife. They both testified

about their reliance on Mr. Westerfield in the management of the trusts.

       Finally, Mr. McKetta called Mr. Gilmore, the certified public accountant,

who testified as to the damages sustained by Mrs. Mudge as a result of improper

actions of Mr. Graham, the Bank, and Mr. Westerfield. For each of the trusts,

Mr. Gilmore offered five different methods for calculating damages. The

methods differed in their treatment of the stock dividends, stock spin-offs, and

stock splits that constituted trust assets. In particular, the methods varied in

whether these categories of assets were treated as income or as principal. For


                                              19
example, Mr. Gilmore’s first method treated stock dividends as income and

spinoffs and splits as principal. The second method treated stock dividends and

splits as principal and spinoffs as income.

       Mr. Gilmore also based his calculations under each method on different

interest rates. Thus, he arrived at differing dollar figures using the first method

(dividends as income; spinoffs and splits as principal) by performing the

calculations under a fifteen percent interest rate, a twelve percent rate, a nine

percent rate, and so forth. He also made differing assumptions about whether

5,000 shares of stock (removed from the trusts by Mr. Graham) should be

included in the calculations. Significantly, Mr. Gilmore did not offer an opinion

as to which method was the proper one.

       At the conclusion of the evidence, Judge Ashby concluded that “there was

clear legal malpractice . . . and breach of fiduciary duty by Mr. Westerfield.”     

He added that he did not understand why the problems in the trust

were not corrected in the 1960s and that “at least as early as 1975, the bank itself

and the trust attorney became aware of the problem and they went to some lengths

to conceal matters.”    

       Judge Ashby then asked Mr. McKetta which of Mr. Gilmore’s methods of

calculating damages he believed to be proper. Mr. McKetta informed the judge

that the proposed findings had employed the first method and that was his


                                             20
recommendation. Judge Ashby accepted that recommendation, but indicated that

the fifteen percent interest rate proposed by Mr. McKetta was too high. Instead,

he ruled that interest should be calculated at nine percent.

       Based on these rulings, Mr. McKetta submitted proposed findings of fact

and conclusions of law, which Judge Ashby adopted. The judge concluded that

Mr. Graham and the Bank had committed willful breaches of trust, that Mr.

Westerfield had knowingly participated in the bank’s breaches of trust, and that

Mr. Westerfield’s conduct from 1964 through 1991 constituted negligence and

was the proximate cause of the losses suffered by Ada Mudge.

       Based on Mr. Gilmore’s first method and on Mr. McKetta’s

recommendation, the judge determined that the estate of Ada Mudge had

sustained $29,431,851 in damages. From that amount, he offset $3,050,000 that

Mr. Hempel had previously received on behalf of the estate in settlements with

other parties. Accordingly, the court entered judgment in favor of Mr. Hempel

and against Mr. Westerfield for $26,381, 851.       

                        F. The federal district court’s rulings

1. Summary judgment on collusion

       In the instant case, the federal district court ruled as a matter of law that

the parties to the state court lawsuit had engaged in collusion.   See Continental


                                             21
Casualty Co. v. Westerfield , 

, 1507-09 (D.N.M. 1997). In

support of this ruling, it cited several characteristics of the state court proceeding:

(1) the fact that “the presiding judge did not perceive the commonality of interest

in the supposedly adverse parties appearing before him and that failing to actively

defend could actually serve to benefit [Mr.] Westerfield financially;”     

08; (2) Mr. Cheney’s failure to present various colorable defenses; (3) the fact

that Mr. McKetta negotiated settlements with the remaining defendants other than

Mr. Westerfield, thereby “eliminat[ing] any chance that Judge Ashby would hear

any evidence or argument contrary to that presented by [Mr.] Hempel in his prima

facie case on liability and as to damages;”    

and (4) the fact that Mr.

McKetta submitted proposed findings and conclusions (ultimately adopted by

Judge Ashby) that assessed damages for the period from 1964 to 1983, thus

eliminating the possibility of that any of Mr. Hempel’s damages would be

attributed to the period after 1983—when one of the settling insurers had

provided coverage.

       Accordingly, the court concluded: “To fail to find collusion in fashioning

an unreasonable settlement under these circumstances would be to authorize

manipulation which compromises the integrity of the adversary system.”         

Nevertheless, in this ruling, the district court stopped short of finding that

the collusive state court judgment relieved the insurers of all obligations. Instead,


                                              22
it said, the import of its summary judgment ruling on the collusion issue was that

Messrs. Hempel and Westerfield “were not entitled to any res judicata or

collateral estoppel effect as to the state court proceeding.”   

duty to

defend the state court lawsuit and the duty to indemnify the judgment remained at

issue in the case.



2. Suumary judgment on the “no risk” issue

       Upon further briefing, the district court ruled that the insurers were entitled

to judgment as a matter of law “that the collusive settlement agreement

extinguished any obligations owed to [Mr.] Westerfield under their respective

contracts of insurance.” Aplts’ App. (case nos. 97-2190, 2194, 2195) vol. IX, at

2869-70. The court reasoned that the combination of Mr. Hempel’s covenant not

to execute on Mr. Westerfield’s assets with Mr. Westerfield’s retention of ten

percent of the proceeds of the bad faith claims that he assigned to Mr. Hempel

transformed the Hempel-Westerfield agreement “from a shield into a sword.”         

The elimination of any actual risk from a judgment against him in the

state court proceedings extinguished the insurers’ obligations to him under the

subject policies.



3. Summary judgment on St. Paul’s fraud claim


                                              23
       The district court granted summary judgment against St. Paul and in favor

of Messrs. Hempel and Westerfield on St. Paul’s claim that the two men had

fraudulently induced St. Paul into entering into a separate settlement for

$300,000. The court found no evidence in the record that Mr. McKetta’s March

15, 1994 offer pertained to the coverage provided by St. Paul. It also concluded

that the letter did not express the final understanding of the parties.




4. Summary judgment as to the lost policy issue

       Finally, the court granted summary judgment to INA on Mr. Westerfield’s

claim for coverage under the lost policy. Noting that “New Mexico law requires

the insured to bear the burden of establishing the existence    and terms of a lost

insurance policy,” the court concluded that Mr. Westerfield had provided no

evidence regarding the policy’s terms.     See Aplts’ App. (case nos. 97-2136, 2147)

vol. II, at 490 (citing Harden v. St. Paul Fire & Marine Ins. Co.   , 

,

579 (N.M. 1947)).



                                    II. DISCUSSION

       Mr. Hempel and Mr. Westerfield now appeal the district court’s grant of

summary judgment against them on the collusion and no risk issues. (Case nos.


                                            24
97-2190, 97-2194). St. Paul appeals the district court’s rejection of its fraud

claim. (Case no. 97-2195). In a fourth appeal, Mr. Westerfield argues that the

district court erred in granting summary judgment to INA on his claim to recover

under the allegedly lost policy. (Case no. 97-2136). Finally, in a cross-appeal,

INA argues that, in the event that this court concludes that the district court erred

in assessing the evidence regarding the lost policy, the court’s grant of summary

judgment in favor of INA should be affirmed on alternative grounds. (Case no.

97-2147).

      We begin our analysis by addressing Mr. Hempel’s and Mr. Westerfield’s

challenges to the district court’s rulings regarding “collusion” and “no risk.”

Then, we address St. Paul’s appeal of the adverse ruling on its fraud claim and

Mr. Westerfield’s appeal of the court’s grant of summary judgment against him on

his lost policy claim. Because we affirm the district court’s decision on the lost

policy claim, we do not consider the issues raised in INA’s cross-appeal.




       A. Hempel’s and Westerfield’s appeal on “collusion” and “no risk”
                        (Case nos. 97-2190, 97-2194)

      Messrs. Westerfield and Hempel both argue on appeal that the district court

erred in ruling as a matter of law that the $26.38 million judgment entered by the


                                          25
New Mexico state district court was collusive. They maintain that “the essence of

‘collusion’ is that the alleged conspirators were acting (1) secretly and (2) for the

purpose of achieving some fraudulent or deceitful purpose.” Westerfield Br. in

Chief at 6. Here, they contend, there is evidence that both the insurers and the

trial judge knew about the Hempel-Westerfield agreement that resulted in the

judgment. They also argue that there is evidence that St. Paul consented to the

agreement and is therefore precluded from challenging it now.

      Mr. Hempel raises two additional arguments: that the district court’s ruling

that the insurers were not obligated to indemnify Mr. Westerfield constituted an

improper review of a state court judgment; and that, even if the district court

correctly concluded that Mr. Westerfield should not be indemnified on the state

court judgment, the court imposed the wrong remedy: rather than relieving the

insurers of their obligations under the policies, the court should have remanded

the case to the New Mexico state court for a trial on the merits of Mr. Hempel’s

claims.

      We engage in de novo review of the district court’s grant of summary

judgment, applying the same standard as the district court pursuant to Fed. R. Civ.

P. 56. See Charter Canyon Treatment Ctr. v. Pool Co.    , 

, 1135 (10th

Cir.1998). Summary judgment is warranted “if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any,


                                          26
show that there is no genuine issue of material fact and that the moving party is

entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c);       see also Jones v.

Kodak Med. Assistance Plan , 

, 1291 (10th Cir. 1999). In this

diversity case, we apply the substantive law of New Mexico.        Erie R.R. Co. v.

Tompkins , 

, 78 (1938);    Adams-Arapahoe Sch. Dist. No. 28-J v. GAF

Corp. , 

, 870 (10th Cir. 1992).



1. Stipulated judgments combined with covenants not to execute on the assets of
the insured.

       Under New Mexico law, insurers that improperly refuse to defend their

policyholders may face serious consequences, including the loss of the right to

claim that the insured has breached the policy provisions and has not cooperated.

State Farm Fire & Cas. Co. v. Price   , 

, 531 (N.M. Ct. App. 1984),

overruled on other grounds , Ellingwood v. N.N. Investors Life Ins. Co.          

(N.M.1991). Additionally, an insured whose insurer has refused to defend him

may enter into a settlement of the claims that have been asserted against him.        See

Rummel v. Lexington Ins. Co. , 

, 984-85 (N.M. 1997);         American

Gen. Fire & Cas. Co. v. Progressive Cas. Co.     , 799 P.2d. 1113, 1117 (N.M. 1990);

Price , 684 P.2d at 531.

       Thus, an insurer that wrongfully fails to defend an insured “generally

becomes liable for a judgment entered against the insured and for any settlement

                                            27
entered against the insured in good faith.”        Price , 684 P.2d at 531. However,

“[t]he settlement must be   reasonable .” 

Thus, in spite of

the insured’s authority to settle a claim after the insurer has refused to provide a

defense, “[a] settlement that is the product of fraud or collusion at the expense of

a nonparticipating insurer would release that insurer from any obligation under

the settlement.”   Rummel , 945 P.2d at 984; see also American Gen. , 799 P.2d. at

1117 (stating that a “settlement [negotiated by an insured after an insurer has

unjustifiably failed to defend him] must be reasonable, and the insurer is not

precluded from asserting as a defense that the settlement was unreasonable”);

Valley Improvement Ass’n v. United States Fid. & Guar. Corp.           , 

,

1125-26 (10th Cir. 1997) (applying New Mexico law, citing           Price , and stating that

settlements negotiated by an insured after an insurer has wrongfully refused to

defend must be reasonable).

       These New Mexico decisions illustrate a principle espoused by many

courts: an insured who has been “exposed . . . to the sharp thrust of personal

liability” by an insurer’s breach of its obligations “need not indulge in financial

masochism.” Samson v. TransAmerica Ins. Co.           , 

, 45 (Cal. 1981)

(quoting Critz v. Farmers Ins. Group , 

, 801 (Cal. 3d Dist. Ct.

App.1964)). Instead, within the bounds of reason, the insured is free to enter into

“the best settlement possible” with the claimant.        Pruyn v. Agricultural Ins. Co.   ,


                                              28


, 303 (Cal. 2d Dist. Ct. App.1995).

      As the district court recognized, one protective device that has been

adopted by policyholders is a stipulated or consent judgment coupled with a

covenant not to execute.    See Pruyn , 42 Cal. Rptr at 305-08 (discussing

“stipulated or consent judgment[s] which [are] coupled with a covenant not to

execute”); Stephen R. Schmidt, “The Bad Faith Setup,” 29       Tort & Ins. L. J. 705,

719-39 (1994) (same).      These arrangements typically involve the following

components: (1) the insured pays little or nothing to the plaintiff in the

underlying case and may even reserve a portion of any money collected from the

insurer; (2) the plaintiff and the insured agree to the entry of a judgment against

the insured, fixing the amount of damages or agreeing as to liability and

requesting a court to determine the amount of damages; (3) the plaintiff agrees

not to seek payment of damages from the insured; “[u]sually this involves a

covenant not to execute on the assets of the defendant, but it may be phrased as a

covenant to execute on or collect the judgment only from one asset of the

defendant (his rights under the insurance policy) or structured as a provision in

the judgment making it collectible only to the extent that insurance may apply;”

and (4) the insured assigns to the plaintiff all of his or her rights against the

insurer. 

, at 719-20

      These settlements offer substantial protection for individuals whose


                                           29
insurers have wrongfully refused to defend them. Nevertheless, they also have

“the high potential for fraud or collusion” because “[w]ith no personal exposure

the insured has no incentive to contest liability or damages” and “the insured’s

best interests are served by agreeing to damages in any amount as long as the

agreement requires that the insured will not be personally responsible for those

damages.” See Pruyn , 42 Cal. Rptr. at 305; see also 

, at 728.

       Like the district court and the parties, we have unearthed no New Mexico

decisions that have specifically determined whether a consent judgment coupled

with a covenant not to execute may be enforced against an insurer. However, in a

number of other jurisdictions, courts have considered a variety of factors in

resolving this question, including: the insured’s authority (under the policy or the

law of the jurisdiction) to settle the case under the circumstances, the

reasonableness of the settlement, and whether the settlement was the product of

bad faith, fraud, or collusion.   See 

, at 721 (collecting cases). In

this context, “collusion” and “fraud” are often defined broadly and “are not

necessarily tantamount to the tort of fraud in that there need not be a

misrepresentation of a material fact.”    

settlement involves cooperation to a
              degree. It becomes collusive when the purpose is to injure
              the interests of an absent or nonparticipating party, such as
              an insurer or nonsettling defendant. Among the indicators
              of bad faith and collusion are unreasonableness,
              misrepresentation, concealment, secretiveness, lack of

                                            30
              serious negotiations on damages, attempts to affect the
              insurance coverage, profit to the insured, and attempts to
              harm the interest of the insurer. They have in common
              unfairness to the insurer, which is probably the bottom line
              in cases in which collusion is found.

specific factors comport with the general reasonableness

inquiry that New Mexico courts have undertaken in assessing settlements

negotiated by policyholders whose insurers have wrongfully refused to defend

them. See Rummel , 945 P.2d at 984; American General , 799 P.2d. at 1117; Price ,

684 P.2d at 531. Accordingly, in considering the reasonableness of the settlement

between Messrs. Hempel and Westerfield, we look to some of the factors on

which courts from other jurisdictions have relied.

       In particular, we consider “what a reasonably prudent person in the position

of [Mr. Westerfield] would have settled for on the merits of plaintiff’s claim.”

See Miller v. Shugart , 

, 735 (Minn. 1982);     see also Rhodes v.

Chicago Ins. Co. , 

, 120 (5th Cir. 1983) (concluding that, under Texas

law, “[t]he insured must demonstrate only that, in settling, his conduct conformed

to the standard of a prudent uninsured”);   Red Giant Oil Co. v. Lawlor , 

, 535 (Iowa 1995) (following       Miller and concluding that “the

settlement which resulted in the judgment must be reasonable and prudent”)      . As

part of this inquiry, we examine the damages incurred by Mr. Hempel, the merits


                                            31
of Mr. Hempel’s theory, the merits of Mr. Westerfield’s defenses, Mr.

Westerfield’s relative fault in relation to other parties who could be held liable,

and the degree of probability of Mr. Hempel’s success.      See Miller , 316 N.W.2d

at 735 (considering “the facts bearing on the liability aspects of plaintiff’s claim,

as well as the risks of going to trial”);   F. Burbach v. Armstrong Rigging & Elec.

Co. , 

, 110 (Minn. Ct. App. 1997) (stating that the trial “court

should have addressed the relative liability of the parties, the risks of trial, and,

perhaps most importantly, whether a reasonable and prudent defendant would

have settled for $825,000”);     Wolff v. Royal Ins. Co. , 

, 235 (S.D.

1991) (considering “the size of possible recovery and degree of probability of

claimant’s success against the insured”);     Chaussee v. Maryland Cas. Co. , 

, 1343 (Wash. Ct. App. 1991) (considering “the releasing person’s

damages; the merits of the releasing person’s liability theory; the merits of the

released person's defense theory; the released person’s relative faults; the risks

and expenses of continued litigation; the released person’s ability to pay; any

evidence of bad faith, collusion, or fraud; the extent of the releasing person’s

investigation and preparation of the case; and the interests of the parties not being

released”) (quoting Glover v. Tacoma Gen. Hosp. , 

, 1236 (Wash.

1983)); see generally 

, at 725-35 (collecting cases).

       In addition to the amount of the judgment, consideration of the procedure


                                              32
through which it was entered is also appropriate. In this regard, the mere fact that

a state court judge approved the Hempel-Westerfield settlement is not sufficient

to render it reasonable. Instead, following the decisions of other courts, we

examine whether there was “an independent adjudication of the facts based on an

evidentiary showing” and whether the process adopted by the parties and the court

“creat[ed] the potential for abuse, fraud, or collusion.”    See National Union Fire

Ins. Co. v. Lynette C. , 

, 1438 (Cal. 3d Dist. Ct. App.1994).

Of course, under New Mexico law, evidence establishing actual fraud or collusion

between Messrs. Hempel and Westerfield would also render their agreement

unenforceable against nonparticipating insurers.       See Rummel , 945 P.2d at 984.




2. The Hempel-Westerfield settlement and resulting judgment          .

       Applying these principles, we conclude that the district court properly

determined that the Hempel-Westerfield settlement and resulting state court

judgment were unenforceable against the nonparticipating insurers.       Most

directly, the record establishes that the amount of the judgment—$26.38

million—is unreasonable. Additionally, the procedure through which the

judgment was entered—an uncontested trial in which plausible defenses were not

advanced and in which plaintiff and defendant had a joint interest in maximizing


                                              33
the amount recovered—evinces collusion between the parties.

      As to the amount of the judgment, the $26.38 million figure is wildly out of

proportion to the valuation of Mr. Hempel’s claim provided by other sources. As

the insurers have noted, approximately five months before the state court trial,

Mr. Hempel’s attorney made a settlement demand as to all the defendants for $5.5

million. Additionally, Mr. Westerfield’s attorney located an expert who

calculated Mr. Hempel’s damages at $2.8 million under a worst case scenario.

Other defendants settled for much lower amounts—the Mudges’ daughters for a

collective $650,000 and the Bank for $1,150,000. Messrs. Hempel and

Westerfield have not cited any evidence from the state court trial suggesting that

Mr. Westerfield should have borne a substantially greater degree of responsibility

for the damages incurred by Mr. Hempel than these other defendants or the

original trustee (Mr. Graham). Thus, the record offers no support for the

inference that “a reasonably prudent person in the position of [Mr. Westerfield]

would have settled . . . the merits of [Mr. Hempel’s] claim” for $26.38 million.

See Miller , 316 N.W.2d at 735.

      Moreover, the record indicates that Mr. Westerfield had several substantial

defenses that were not presented at the state court trial. As the district court

observed, Mr. Westerfield could have argued that Mr. Hempel’s claims were

barred by the statute of limitations. He could have argued that various stock


                                          34
transactions should have been treated as principal rather than income, thereby

reducing Mr. Hempel’s damages. Indeed, Mr. Cheney had consulted with experts

who supported such a theory. Moreover, perhaps the strongest argument that Mr.

Westerfield could have advanced was that Mr. Hempel’s damages should have

been apportioned among other persons and entities.     See Continental Cas. Co. , 961

F. Supp. at 1508 (noting that the state court expressly found that the trustee who

preceded Mr. Westerfield, the Bank, and the two Mudge daughters all participated

in willful and knowing breaches of the trust). In fact, the trial judge later

testified in a deposition that he would have considered apportioning liability

against other parties had he been asked to do so.    See Aplts’ App. (case nos. 97-

2190, 2194, 2195) vol. VIII, at 2414. The failure of Mr. Westerfield to raise any

of these defenses supports the district court’s conclusion that the Hempel-

Westerfield agreement was collusive.

       In our view, none of the factors identified by Mssrs. Hempel and

Westerfield undermine the conclusion that the settlement and the resulting

judgment were unreasonable and collusive. In particular, although they correctly

observe that Mr. Cheney informed both the state trial judge and the insurers that

he proposed to settle the case by means of a consent judgment and a covenant not

to execute, that fact does not establish that the judge or the insurers knew about

several key aspects of the arrangement: that Mr. Westerfield had retained a ten


                                            35
percent interest in the amount of any judgment rendered against him and that the

trial would consist of an attempt to obtain as high a judgment as possible.

       We do agree that allegations of collusion and assertions that settlements are

unreasonable often involve factual disputes that are inappropriate for resolution

on summary judgment. Indeed, in several of the New Mexico cases that we have

discussed, the courts concluded that there were factual    issues warranting a trial.

See, e.g. , Rummel , 

; Price , 684 P.2d at 531. However, these

decisions do not establish that summary judgment is never appropriate when these

issues are raised. As the insurers have noted, courts have found collusion or

unreasonableness as a matter of law when the evidence in the record indicated

that a factfinder could reach no other conclusion.    See, e..g. , Purdy Co. v. Transp.

Ins. Co. , 

, 324 (Ill. Ct. App. 1991) (affirming trial court’s grant of

summary judgment on the grounds that an agreement was collusive).




3. Alleged ratification by St. Paul

       As noted above, Messrs. Hempel and Westerfield also argue that St. Paul

ratified their settlement agreement and is therefore precluded from challenging

the settlement and the resulting judgment in this federal case. Their argument is

based on two alleged indicia of St. Paul’s consent: (1) in a separate agreement


                                            36
(executed on March 31, 1994) under which it paid $300,000 to Mr. Hempel

pursuant to a policy that it had issued to Mr. Westerfield, St. Paul acknowledged

that the March 31, 1994 agreement “arises out of” the final state court judgment;

and (2) St. Paul agreed to allow Mr. Cheney to represent its interests. We are

persuaded by neither item of evidence.

       Under New Mexico law, ratification may be inferred by a principal’s

acquiescence in the results of an unauthorized act of an agent.    See Jessen v.

National Excess Ins. Co. , 

, 1249 (N.M. 1989). “One may infer

affirmance by a principal of an unauthorized transaction of its agent from the

principal’s failure to repudiate it.”   Ulibarri Landscaping Material, Inc. v. Colony

Materials, Inc. , 

, 79 (N.M. Ct. App. 1981). Under those standards,

neither incident of alleged acquiescence supports the theory that St. Paul ratified

the Hempel-Westerfield settlement and resulting judgment.

       As to the March 31, 1994 agreement, that document merely states that [t]his

settlement arises out of controversies and disputes among Hempel, Westerfield,

and others related to facts and circumstances alleged in the above referenced

lawsuit . . . and to a final judgment entered in the Lawsuit on March 22, 1994.”

Rec. (case nos. 97-2190, 2194, 2195) vol. VI, at 1713 (emphasis added). An

acknowledgment that the agreement “arises out of controversies . . . related to”

the judgment in the lawsuit cannot be reasonably read as an agreement that St.


                                            37
Paul consented to indemnify Mr. Westerfield on that judgment. Moreover, the

March 31, 1994 agreement further states that it reflects the full understanding of

the parties, and there is no reference in the agreement to St. Paul’s purported

ratification of the state court judgment.

       Additionally, the evidence cited by Messrs. Hempel and Westerfield does

not support their contention that Mr. Cheney’s negotiation of the consent

judgment and covenant not to execute should be imputed to St. Paul. Although a

reasonable factfinder could conclude that St. Paul agreed to Mr. Cheney providing

a legitimate defense in the state court lawsuit, there is no indication that St. Paul

agreed to the entry of a grossly inflated judgment or to provide indemnification in

that grossly inflated amount.



4. The Rooker-Feldman doctrine

       In a final challenge to the district court’s ruling that the Hempel-

Westerfield judgment and resulting settlement were unreasonable and collusive,

Mr. Hempel invokes the Rooker-Feldman doctrine, arguing that the ruling

constitutes an improper collateral attack on the state court judgment.     See District

of Columbia Ct. App. v. Feldman     , 

, 476 (1983);     Rooker v. Fidelity

Trust Co. , 

, 415-16 (1923). In a related argument, he contends that,

in the event that this court agrees that the state court judgment was collusive, the


                                            38
case should be remanded to the state trial court for a new trial.

       Under the Rooker-Feldman doctrine, a federal district court lacks

jurisdiction to review a final state court judgment. Thus, it may not review

“matters actually decided by a state court,” and it may not issue “any declaratory

relief that is inextricably intertwined with the state court judgment.”       Kiowa

Indian Tribe of Okla. v. Hoover     , 

, 1169 (10th Cir.1998) (internal

quotation marks and citations omitted).

       There are, however, significant limitations on the scope of the doctrine. “If

the purpose of a federal action is separable from and collateral to a state court

judgment, then the claim is not inextricably intertwined merely because the action

necessitates some consideration of the merits of the state court judgment.”        

(internal quotation marks omitted). Moreover, both the Supreme Court

and this circuit have found the    Rooker-Feldman doctrine inapplicable when the

party against whom it is invoked was not a party to the state court proceedings.

See Johnson v. De Grandy , 

, 1006 (1994) (stating that “invocation

of Rooker/Feldman is . . . inapt here, for unlike     Rooker or Feldman , the United

States was not a party in the state court”);    Johnson v. Rodrigues (Orozco)    , 

, 1108 (10th Cir. 2000) (observing that the plaintiff “was not a party to

the state court adoption proceeding, a fact which makes the [       Rooker-Feldman ]

doctrine inapplicable”).


                                               39
       Applying those principles, we do not agree with Mr. Hempel that the

federal district court’s ruling constituted an improper collateral attack on the state

court judgment. The insurers here did not seek review of a matter actually

decided by a state court. Rather than seeking to relitigate the question of Mr.

Westerfield’s liability to Mr. Hempel—the matter actually decided in the state

court proceeding—they requested only a determination of their duty to indemnify

Mr. Westerfield. That question is not inextricably intertwined with the merits of

the state court action. As our ruling here demonstrates, the fact that the judgment

remains valid against Mr. Westerfield is not inconsistent with the conclusion that

that the insurers are not required to indemnify him for it.

       Mr. Hempel’s second argument—that this court should vacate the

judgment against Mr. Westerfield and remand the case to the state court for a new

trial—is also not supported by the   Rooker-Feldman doctrine. Such a ruling would

place this court in the role of an appellate tribunal for the New Mexico courts.

This is precisely what the   Rooker-Feldman doctrine forbids.   See Anderson v.

State of Colorado , 

, 264 (10th Cir.1986) (noting that federal district

courts do no have jurisdiction to review final state court judgments in judicial

proceedings).



5. Conclusion


                                           40
      For the reasons set forth above, we conclude that, in its rulings on

“collusion” and “no risk,” the district court properly held that CNA and St. Paul

are not obligated to indemnify Mr. Hempel and Mr. Westerfield on the $26.38

million judgment.



                        B. St. Paul’s appeal of its fraud claim
                                 (case no. 97-2195)

      St. Paul’s fraud claim is based on its reading of the March 15, 1994 note

from Mr. McKetta to Mr. Cheney. As noted above, Mr. McKetta stated in that

letter that Mr. Hempel “offers to settle with [Mr.] Westerfield for the coverage

year time period afforded by the Ranger policy for $1,000,000—well under the $5

mm policy limits.” Aplts’ App. (case nos. 97-2190, 97-2194, 97-2195) vol. II, at

457. St. Paul’s theory is that Mr. McKetta’s offer constituted not merely a

proposal to settle as to the Ranger policy but rather an offer to settle with all

insurers for the time period specified in the policy (December 5, 1975 through

January 5, 1977). According to St. Paul, when Ranger agreed to the $1 million

amount on March 17, 1994, St. Paul was released from liability under its policies.

Thus, under this theory, Mr. McKetta’s offer on March 18, 1994 to settle under

St. Paul’s policy for $300,000 constituted fraud because Mr. McKetta did not

disclose the alleged terms of the prior $1 million settlement.

      We agree with the district court’s analysis rejecting St. Paul’s fraud claim.

                                           41
As the court noted, St. Paul’s reading of the March 15, 1994 offer from Mr.

Cheney is not plausible. “If extinguishing St. Paul’s liability was intended as part

of the note’s offer, the note would not have indicated that the $1,000,000 figure

was ‘well under the $5,000,000 policy limits.’ The $5,000,000 figure reflects

only Ranger’s excess policy limits and ignores the $300,000 St. Paul occurrence

policy for the same period.” Aplts’ App. (case nos. 97-2190, 2194, 2195) vol. IX,

at 2854. Moreover, St. Paul has not identified any evidence in the record

indicating that the parties to the $1,000,000 settlement intended St. Paul to be a

third party beneficiary.

      Additionally, even if one views Mr. McKetta’s March 15, 1994 letter as

ambiguous with regard to the release of St. Paul, there is no indication that Mr.

Westerfield, Mr. Cheney, Ranger, Mr. Hempel, and Mr. McKetta arrived at a

meeting of the minds on the terms suggested by St. Paul. Mr. Cheney, Mr.

McKetta, and Ranger’s counsel all testified that the terms of the settlement

involving the $1,000,000 payment by Home were set forth in the written

agreement signed on March 21, 1994. That written agreement provides for a

$1,000,000 payment by Ranger and a $300,000 payment by St. Paul. It further

provides that it “reflects the full understanding of These Parties concerning its

subject matter” and that “there are no side agreements or understandings or

promises or representations relied upon by any party other than as expressly set


                                         42
out herein.” 

Any ambiguity in Mr. McKetta’s March 15, 1994 offer

is properly resolved by the considering the terms of the March 21, 1994

agreement. Cf. Johnson v. Star Iron & Steel Co.     , 

, 1374 (Wash.

App. 1973) (“At the very least, the offer was ambiguous to the extent that no

mutual assent was possible by the acceptance made.”).

         Accordingly, the district court properly granted summary judgment against

St. Paul and in favor of Messrs. Hempel and Westerfield on St. Paul’s fraud

claim.



               C. Mr. Westerfield’s appeal of the INA lost policy claim
                                 (case no. 97-2136)


         Messrs. Hempel and Westerfield also argue that the district court erred in

granting summary judgment to the defendant INA on their claim to recover under

an alleged professional liability policy. As the district court observed, the only

evidence of such a policy was an addendum to an INA excess insurance policy.

The addendum sets forth a list of underlying policies providing coverage for the

period from January 1, 1968 to Janaury 1. 1969. It provides only a very general

description of the alleged policy:

                Professional Liability
                             Bodily Injury liab
                             $100,000 each person
                             $300,000 each occur

                                           43
                            Property damage liab
                            $50,000 each occurance (sic)

Aplts’ App. (case nos. 97-2136, 2147) vol. I, at 109. According to Messrs.

Hempel and Westerfield, this addendum constitutes sufficient evidence from

which a trier of fact could reasonably infer that the subject policy provided

coverage for the claims asserted by Mr. Hempel.

       In assessing this claim, we must consider the burden of proving the

existence and terms of a lost policy. Despite their procedural nature, burdens of

proof are sufficiently related to substantive rights that they are governed by state

law in diversity actions.   See Cities Serv. Oil Co. v. Dunlap , 

(1939); Oja v. Howmedica, Inc. , 

, 792 (10th Cir.1997) (concluding

that, as to causes of action arising under state law, a federal court usually

“examine[s] the evidence in terms of the underlying burden of proof as dictated

by state law”).

       Under New Mexico law, there is some question as to the applicable burden

of proof. Some decisions conclude that a party seeking to prove the existence

and terms of a lost will or deed must do so by clear and convincing evidence.

See Barngrover v. Estate of Barngrover    , 

, 390 (N.M. 1980);      Johnson

v. Johnson , 

, 184-5 (N.M. 1964). However, these decisions do not

involve insurance policies. As a result, like the district court, we will afford

Messrs. Hempel and Westerfield the benefit of the doubt by assuming that, under

                                           44
New Mexico law, the lesser standard—preponderance of the evidence—applies

to the claim to recover on the lost policy.    Cf. Servants of the Paraclete v. Great

Am. Ins. Co. , 

, 828 (D.N.M. 1994) (concluding, as a matter of

federal law, that the burden of proving the existence and terms of a lost

insurance policy is by a preponderance of the evidence).

       In support of its summary judgment motion, INA offered an affidavit from

B.H. Kinney, the insurance agent who issued the addendum that refers to the

alleged policy at issue. Mr. Kinney stated that the initials “GLP” were used to

refer to general liability coverage for commercial properties. He could recall no

instance in which a GLP policy had provided professional liability coverage.

Additionally, Mr. Kinney reported that the liability limits set forth on the

addendum (i.e. $100,000 per person, $300,000 per occurrence, etc.) were

inconsistent with professional liability coverage. He characterized the reference

to professional liability in the addendum as likely to have been a mistake.

       Other evidence in the record supports Mr. Kinney’s assessment. INA

produced various specimen forms of “GLP” policies that were available between

January 1, 1968 and January 1, 1969. None of them provided for professional

liability coverage. In addition, in subsequent applications for professional

coverage, Mr. Westerfield listed prior professional liability policies but never

identified the alleged policy at issue here.


                                              45
       In response to this evidence, Messrs. Hempel and Westerfield challenge

INA’s reliance on Mr. Kinney’s testimony, noting that Mr. Kinney had no

recollection of having seen the alleged policy and contending that, as a result, he

could not testify about its terms. We are not convinced by this argument. In

spite of his lack of first-hand knowledge about the terms of a particular policy,

Mr. Kinney was still competent to testify about INA’s practices and procedures,

including the kinds of policies the company issued.       See Mobile Exploration &

Producing U.S., Inc. v. Cajun Constr. Servs.      , 

, 99 (5th Cir. 1995)

(noting that “[h]abit evidence is relevant to prove that a business acted in a

certain way”).

       Significantly, the evidence in the record here contrasts markedly with the

evidence in cases in which courts have found triable issues of fact regarding the

existence and terms of a lost policy.     See, e.g. , Township of Haddon v. Royal Ins.

Co. of Am. , No. 95-701, 

, at * 3 (D.N.J. Sept 19, 1996) (“The

nearly identical wording of the relevant terms of the policies immediately

preceding and immediately following the lost policy strongly suggests that the

relevant terms of the missing policy are, too, nearly identical.”);    UTI Corp. v.

Firemans Fund Ins. Co , 

, 381 (D. N.J. 1995) (considering

specimen policies and correspondence referring to the alleged lost policy in

concluding that there were triable issues regarding the policy’s existence and


                                             46
terms); Bell Lumber & Pole Co., v. United States Fire Ins. Co        , 

,

743 (D. Minn. 1994) (relying in part on evidence that a standard, pre-printed

policy provided the same coverage as alleged under the lost policy),       aff’d , 

(8th Cir. 1995). Moreover, in instances resembling the present case,

courts have rejected claims to recover under lost policies.     See, e.g. , Bituminous

Cas. Corp. v. Vacuum Tanks, Inc.     , 

, 1132 (5th Cir. 1992)

(evidence of policy numbers, dates, and amounts of coverage insufficient to

establish existence and terms of policy);    Boyce Thompson Inst. for Plant

Research v. Insurance Co. of N. Am.     , 

, 1140 n.2 (S.D.N.Y.

1990) (mention of policy number in another document insufficient to establish

existence and terms of alleged policy).

          Accordingly, we conclude that Messrs. Hempel and Westerfield have

failed to offer sufficient evidence to rebut the evidence produced by INA

indicating that the referenced GLP policy, if it existed, did not provide coverage

to Mr. Westerfield for the underlying state court judgment. Thus, the district

court properly granted summary judgment in favor of INA and against Mr.

Westerfield on the claim to recover under the alleged lost policy.     1




      1
        In light of this conclusion, we need not address the issues raised in
INA’s cross-appeal.

                                            47
                              III. CONCLUSION

      For the reasons set forth above, in case nos. 97-2190 and 97-2194, we

AFFIRM the district court’s grant of summary judgment in favor of the

defendant insurers and against Mr. Hempel. In case no. 97-2195, we AFFIRM

the district court’s grant of summary judgment in favor of Mr. Hempel and Mr.

Westerfield and against St. Paul. In case no. 97-2136, we AFFIRM the district

court’s grant of summary judgment in favor of INA and against Mr. Westerfield.

Finally, in case no. 97-2147, we DISMISS INA’s cross-appeal.



                                            Entered for the Court,



                                            Robert H. Henry
                                            United States Circuit Judge




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