Cassel, J.
Former members of a credit union's board of directors, after having been sued by the credit union, sought a declaratory judgment that an insurance policy covered the credit union's claims. The district court first held in favor of the former directors, but reconsidered and later granted summary judgment to the insurer. While reconsideration was pending, the former directors settled with the credit union. On appeal, we resolve two broad issues. First, because the former directors did not establish that they were entitled to summary or declaratory judgment, the court did not abuse its discretion in vacating its initial judgment. Second, because the settlement potentially gave rise to new policy-based defenses that were not barred by equitable estoppel, the court did not abuse its discretion in permitting an amended answer. We affirm the court's summary judgment for the insurer.
On February 16, 2006, the National Credit Union Administration (NCUA) placed Union Pacific Streamliner Federal Credit Union (credit union), a federally chartered credit union, under conservatorship. The conservatorship revoked the authority of the credit union's board of directors, which then included Fred Breci, William Gallo, Henry Kammerer, Michael Kros, Carl Launer, Steven Slater, and S. Anthony Siahpush (collectively former directors).
NCUA had previously recommended conservatorship for a number of reasons, including "[i]nsider abuse and preferential treatment towards certain members of the... board of directors." According to the recommendation, specific instances of preferential treatment included leasing office space in a building owned by a director and obtaining engineering and construction assistance from the director's firm.
On September 12, 2006, the credit union signed an application for an insurance policy. St. Paul Mercury Insurance Company (St. Paul) later issued a policy effective from November 18, 2006, through November 18, 2009 (Policy). The management liability insuring agreement had a limit of liability of $2 million and provided directors and officers individual coverage. The Policy covered only claims first made during the policy period.
On June 15, 2007, the credit union sued the former directors and two businesses affiliated with one of the former directors. Its amended complaint alleged that the former directors failed to exercise the ordinary care and prudent judgment required of directors, thereby causing injury and financial loss. The complaint set forth the following acts by the former directors:
The credit union sought general and special damages resulting from the breaches of the former directors' fiduciary duty.
In July 2007, the former directors submitted the credit union's lawsuit to St. Paul, seeking coverage under the Policy.
In a January 21, 2008, letter to the former directors, St. Paul acknowledged receipt of the lawsuit and described coverage under the Policy. The letter discussed the following:
On February 16, 2009, St. Paul sent a letter to the former directors, stating that it would not defend or indemnify the former directors for the credit union's lawsuit against them. The letter stated that because the former directors were "Insured Persons" and the credit union was an "Insured" under the Policy, coverage was precluded
On April 9, 2009, the former directors sued St. Paul. They sought a declaratory judgment that they were entitled to coverage under the Policy, that St. Paul was obligated to them for the cost of defending the action brought by the credit union, and that St. Paul was obligated to provide coverage for any damages that might be awarded by a court for the complaint brought by the credit union.
In St. Paul's answer, it alleged, among other things, that coverage for the credit union's lawsuit against the former directors was barred under an exclusion in the Policy, because the former directors were "Insureds" under the Policy and the lawsuit was brought by the credit union, which was also an "Insured" under the Policy.
The credit union later intervened in the former directors' lawsuit against St. Paul. It requested an order declaring that there was coverage under the Policy and that St. Paul would be required to pay the judgment up to the limits of coverage if a judgment in the credit union's lawsuit against the former directors was entered in favor of the credit union.
Shortly after the former directors sued St. Paul, the district court entered an order both in the credit union's lawsuit against the former directors and in the instant case, referring each case to mediation and stating that "all parties shall attend and participate in the mediation." After the initial mediation date, St. Paul did not participate in further negotiations.
St. Paul and the former directors each filed a motion seeking judgment. St. Paul moved for summary judgment, alleging that the Policy did not provide coverage for the claims in the credit union's lawsuit against the former directors and that St. Paul was not obligated to advance or reimburse the defense costs incurred by the former directors in that lawsuit or to otherwise indemnify them. The former directors filed a "Motion for Declaratory Judgment" and asked for an order declaring their rights under the Policy.
On April 20, 2010, the district court entered judgment, styled as an order, denying St. Paul's motion for summary judgment and granting the former directors' motion for declaratory judgment. The court determined that the "Insured v. Insured" exclusion did not apply, because the credit union was not an "Insured" under the "Directors and Officers Individual Coverage" section of the management liability insuring agreement.
St. Paul timely filed a motion to alter or amend. It asserted several grounds in support of its motion and requested that the court alter or amend its order or, in the alternative, limit the order solely to the applicability of the "Insured v. Insured" exclusion and leave open for resolution the remaining issues relating to other defenses.
After weeks of negotiations through the mediator, the former directors settled the credit union's lawsuit against them. The settlement agreement provided that the former directors would pay $155,000 to the credit union, that there would be a confession
On April 26, 2010 — 6 days after the filing of the court's judgment denying St. Paul's motion for summary judgment and granting the former directors' motion for declaratory judgment — the confession of judgment was filed. It provided that five of the former directors confessed that judgment of $2 million should be entered against them in favor of the credit union. Under the assignment of claims, the former directors transferred to the credit union their interests in the instant litigation against St. Paul. A covenant not to execute stated that the credit union "will not execute on, or otherwise seek to enforce, the Judgment entered against the [former directors] in this matter by confession, except and to the extent of any right, title, claim or interest of any type or kind that the [former directors] have ... against St. Paul."
On May 5, 2010 — 9 days after the confession of judgment was filed and while St. Paul's motion to alter or amend the April judgment was still pending — St. Paul moved for leave to file an amended answer. St. Paul alleged that the settlement of the credit union's lawsuit raised new issues and new defenses under the Policy that were not known to St. Paul or otherwise did not exist at the time the court considered the motion for summary judgment and motion for declaratory judgment. The court granted the motion.
St. Paul subsequently filed its amended answer. It alleged that the settlement between some of the former directors and the credit union constituted a fraudulent and collusive effort to obtain the Policy's limits of liability. St. Paul pointed to various provisions of the Policy and asserted numerous reasons why the Policy did not provide coverage under the circumstances. The additional defenses included the following:
On September 15, 2011, the court ruled on St. Paul's motion to alter or amend. The court stated:
The court granted in part St. Paul's motion to alter or amend and vacated that portion of the judgment granting declaratory judgment. The court denied St. Paul's motion with respect to the denial of St. Paul's motion for summary judgment.
In April 2012, St. Paul filed a second motion for summary judgment. It alleged
On May 11, 2012, the credit union filed a second amended complaint and cross-claim against St. Paul. It alleged that on or about October 1, 2009, the parties began to mediate the claims and that St. Paul "attended approximately the first half day of mediation but refused to make any additional offers from its initial and minimal offer. St. Paul ... then refused to participate in any further mediation." The credit union alleged that as assignee of the rights of the former directors, St. Paul violated its duty of good faith to the former directors and to the credit union in a number of ways. The credit union sought damages of $2 million.
Also on May 11, 2012, the credit union filed a "motion for postponement of summary judgment hearing," seeking to postpone the June 7 hearing date. In support of its motion, the credit union alleged that the motion for summary judgment was premature in light of its amended complaint and cross-claim and that if the court granted any part of a pending motion to compel, the credit union might want to submit such information at the summary judgment hearing. The court denied the motion to compel and the motion for postponement.
On September 28, 2012, the court entered its final judgment. The court granted St. Paul's second motion for summary judgment, dismissed the complaint of the former directors, and dismissed the credit union's complaint in intervention. The court made the following determinations:
The former directors and the credit union (collectively credit union parties) timely appealed, and St. Paul filed a cross-appeal. We moved the case to our docket under our statutory authority to regulate the caseloads of the appellate courts of this state.
The credit union parties assign, restated and consolidated, that the district court erred in (1) vacating its order granting declaratory judgment to the former directors, (2) allowing St. Paul to amend its pleadings and assert new defenses, and (3) overruling the credit union parties' motion for further discovery and the credit union's motion for a postponement of the summary judgment hearing.
The credit union parties also assign that the court erred in granting St. Paul's second motion for summary judgment, but their brief does not specifically argue the issue. To be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error.
On cross-appeal, St. Paul assigns that the district court erred in denying its first motion for summary judgment and in denying its motion to alter or amend the April 2010 judgment when the "Company v. Insured" exclusion barred coverage for the credit union's lawsuit against the former directors.
St. Paul asserts that the credit union parties' appeal "suffers from fatal jurisdictional deficiencies."
The credit union parties properly waited until entry of final judgment to appeal. The orders the credit union parties are challenging — the order vacating declaratory judgment, the order allowing St. Paul to file an amended answer, the order denying their motion to compel, and the order denying a continuance — were nonfinal and not immediately appealable at the time of entry.
The credit union parties claim that we lack jurisdiction to consider the errors assigned on cross-appeal. The cross-appeal is directed to the district court's denial of St. Paul's first motion for summary judgment and the denial of St. Paul's motion to alter or amend that judgment. A denial of a motion for summary judgment is an interlocutory order, not a final order, and therefore not appealable.
The credit union parties first argue that the district court abused its discretion by vacating its prior judgment granting the former directors declaratory judgment. In vacating that portion of the judgment, the court stated that it "clearly erred" in awarding a declaratory judgment and that "even if it was to be considered as a motion for partial summary judgment, the other parties did not have an opportunity to present evidence in opposition."
A motion to alter or amend a judgment is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion.
The credit union parties focus on the second part of the court's statement and point out that St. Paul had the opportunity to — and did — present evidence in opposition to the motion. But the real problem for the credit union parties lies with the court's recognition that it erred in awarding a declaratory judgment under these circumstances.
In Nebraska, a party may not simply move the court for a declaratory judgment. The former directors filed both a complaint for declaratory judgment and a "motion for declaratory judgment." The order at issue in this assignment of error vacated the portion of the April 2010 judgment purporting to grant the motion for declaratory judgment. Although a "motion for declaratory judgment" has been referenced in a few published opinions of this court
Issues of fact in a declaratory judgment action may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.
To the extent the former directors may have been seeking summary judgment, they failed to prove entitlement to judgment as a matter of law. The party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate that the moving party is entitled to judgment as a matter of law.
We conclude that the district court did not abuse its discretion by granting St. Paul's motion to alter or amend in part to vacate the entry of declaratory judgment.
The credit union parties' chief complaint on appeal concerns the district court's decision to permit St. Paul to assert new defenses in its amended answer. They argue that St. Paul should be estopped from raising new defenses.
Permission to amend pleadings is addressed to the discretion of the trial court; absent an abuse of discretion, the trial court's decision will be affirmed.
The doctrine of equitable estoppel applies where, as a result of conduct of a party upon which another person has in good faith relied to his detriment, the acting party is absolutely precluded, both at law and in equity, from asserting rights which might have otherwise existed.
We first reject the credit union parties' argument that the equitable doctrine of mending one's hold has estopped St. Paul from asserting additional defenses. We have concluded that the doctrine of mending one's hold generally "`has no application to matters relating to coverage.'"
We have determined that the doctrines of mending one's hold and estoppel do not apply when an insured has notice that other defenses could be asserted by an insurer. In Sayah v. Metropolitan Prop. & Cas. Ins. Co.,
Like the insureds in Sayah, the former directors did not suffer detrimental reliance, because they had notice that St. Paul could assert the additional defenses set forth in its amended answer. First, the additional defenses raised by St. Paul to support its denial of coverage were based on the terms, conditions, and exclusions of the Policy. Second, St. Paul explicitly reserved the right to assert additional defenses based on the Policy in its January 2008 letter to the former directors and in its original answer. Thus, like the insureds in Sayah, the former directors did not suffer detrimental reliance when St. Paul amended its answer to allege other exclusions from coverage set forth in the Policy.
There is a widely recognized exception to the general rule that estoppel cannot be used to expand the scope of insurance coverage. Under the exception, when an insurance company assumes the defense of an action against its insured, without reservation of rights, and with knowledge, actual or presumed, of facts which would have permitted it to deny coverage, it may be estopped from subsequently raising the defense of noncoverage.
The exception to the general estoppel rule is not applicable. St. Paul's January 2008 letter did not explicitly state that there was coverage. It did, however, explicitly state that St. Paul's investigation and evaluation of coverage were continuing. The letter also stated:
Further, St. Paul did not have the duty to defend under the express terms of the Policy, and St. Paul never assumed or controlled the defense of the credit union's lawsuit against the former directors. The January 2008 letter to the former directors noted that the former directors had the duty to defend any claim covered under the Policy, that the former directors had selected an attorney to represent them, and that St. Paul had the right to be consulted in advance about defense strategies and settlement negotiations — all of which were consistent with the terms of the Policy. Thus, the exception to the general estoppel rule does not apply under the circumstances of this case.
The credit union parties next argue that allowing St. Paul "to amend its pleading subsequent to an adverse ruling on a determinative motion would violate the public policy of Nebraska" because it "will severely inhibit the ability to [sic] an insured to achieve finality in litigation."
The credit union parties rely on Darrah v. Bryan Memorial Hosp.
We distinguish Darrah from the situation at hand. Here, St. Paul promptly sought leave to amend its answer after a "newly discovered" development — the settlement of the credit union's lawsuit against the former directors. The settlement potentially raised new issues and new defenses under the Policy. Although not all of the new defenses asserted in the amended answer related to the settlement, many of them did. Thus, even though St.
We conclude that the doctrine of mending one's hold is not applicable and that the former directors did not suffer detrimental reliance, because they had notice that St. Paul could assert additional defenses based on the Policy. We also conclude that the exception to the general rule that estoppel cannot be used to expand the scope of insurance coverage is not applicable. Because the district court's April 2010 judgment did not become appealable due to St. Paul's motion to alter or amend and because the settlement of the credit union's lawsuit against the former directors made other exclusions from coverage under the Policy potentially applicable, the district court did not abuse its discretion in allowing St. Paul to amend its answer to assert new defenses.
In connection with the district court's decision to allow St. Paul to file an amended answer, the credit union parties assign that the court abused its discretion by denying their motion to compel discovery and denying the credit union's motion to postpone the summary judgment hearing.
Decisions regarding discovery are directed to the discretion of the trial court, and will be upheld in the absence of an abuse of discretion.
A motion for continuance is addressed to the discretion of the trial court, whose ruling will not be disturbed on appeal in the absence of an abuse of discretion.
St. Paul's second motion for summary judgment was based on the terms of the Policy and presented a question of policy interpretation. An insurance policy is a contract, and when the facts are undisputed, whether or not a claimed coverage exclusion applies is a matter of law.
We conclude that the court did not abuse its discretion in denying the motion to compel or the motion for postponement of the hearing.
On cross-appeal, St. Paul argues that the district court erred in denying St. Paul's first motion for summary judgment by finding that the "Company v. Insured" exclusion did not apply to the claim raised in the credit union's lawsuit against the former directors and in denying its motion to alter or amend the April 2010 judgment which challenged that finding. Both of St. Paul's motions for summary
We conclude the district court properly vacated its earlier judgment granting the former directors' "motion for declaratory judgment," because the former directors had not demonstrated entitlement to summary judgment or declaratory judgment. Because the settlement between the credit union parties potentially gave rise to new defenses under the Policy and because estoppel and the general exception to estoppel do not apply, the court did not abuse its discretion in allowing St. Paul to amend its answer. We further conclude that the court did not abuse its discretion in denying the motion to compel or the motion for postponement of the summary judgment hearing, because St. Paul's second motion for summary judgment could be decided based upon the language of the Policy. We therefore affirm the court's judgment.
AFFIRMED.
Stephan, J., not participating.
