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By Thomas Hanekamp, Esq. of Tressler LLP
Policyholders assert, sometimes successfully, that courts should parse the underlying allegations of complaints and find a defense is owed, or reimbursement of defense costs is owed, where a single allegation establishes a potentially covered claim. Where this fails, as it should, is where the context of the allegation is disregarded and the policyholder advances a strained and contorted view of the pleading. A recent well-reasoned decision from the District of Columbia provides some guidance on these issues adopting a common sense approach that is loyal to the contractual language to which the parties agreed. A copy of the decision can be accessed here.
In the Carlyle Investment Management case, Judge Frederick Weisberg granted the insurers’ motion to dismiss with prejudice the policyholders’ complaint. In doing so, Judge Weisberg applied an exclusion for Professional Services finding that the definition was broad enough to exclude coverage for a wide variety of allegations in numerous complaints.
The Plaintiffs in Carlyle were LLCs operating under the banner of a private equity firm The Carlyle Group. They organized a new company, CCC, and one of the Plaintiffs, CIM, served as CCC’s investment manager pursuant to an Investment Management Agreement. Shares of CCC were sold to private investors and later were sold publicly. CCC invested in residential mortgage-backed securities and was subject to the collapse of that market in 2008 eventually filing bankruptcy. A number of CCC’s investors and the CCC liquidators in bankruptcy sued the Plaintiffs, including CIM, for mismanagement of CCC and misrepresentations.
CIM’s insurers denied coverage relying upon a Professional Services exclusion that specifically excluded coverage for “Professional Services Claims arising from Professional Services provided to CCC.” Professional Services was broadly defined in the policy to include “the giving of financial, economic, or investment advice regarding investments in any debt, equity, or convertible securities, collateralized debt obligations, …collateralized mortgage obligations, asset-backed securities,…or any combination of any of the foregoing, including without limitation the giving of financial advice to or on behalf of any Fund…”
According to the insurers, the insureds bargained for this language to obtain the broadest possible coverage for losses arising from services provided to other entities. The broad definition of Professional Services also must therefore apply where the term is used in the Exclusion thus barring coverage for this loss.
Plaintiffs sued the insurers arguing that the Exclusion is narrower than the coverage and intended to exclude only claims arising from professional services in the nature of those provided by accountants and lawyers, not management liability claims such as those alleging acts, errors and omissions in corporate governance or D&O claims. The court found the definition broad and unambiguous and operated to bar coverage for all losses (and defense costs) in this case.
The court acknowledged that the numerous underlying complaints were “plead in a plethora of different legal theories and multiple counts” but that “the gravamen of all of the underlying complaints is that Plaintiffs enticed the investors into unsafe investments…” In doing so the court rejected the Plaintiffs’ argument that analyzing the complaints count by count disclosed D&O allegations that would not be subject to the Exclusion. The definition of Professional Services in this policy was broad enough to encompass such claims whether or not elsewhere such activities would be viewed as management liability claims.
In response to the insureds’ invitation to “get down in the weeds to see if there may be some clever parsing of the language in any count in the many multiple-count complaints against them that could take that count outside of what would otherwise be the unambiguous language of the Exclusion,” the court stated that the “’eight corners rule’ neither requires nor permits the court to scrutinize each count in each complaint with a dictionary in one hand and The Chicago Manual of Style in the other to see if there is an allegation that could be contorted so as to bear an interpretation that would take it out of the Exclusion.”
The Court also noted the variety of underlying allegations including false marketing of the shares, failure to make required disclosures, alleged mismanagement of CCC, alleged misrepresentations concerning the liquidity of CCC, and the breach of duty of loyalty of directors for the benefit of other entities and the detriment of CCC. While some of those claims might be classified as management liability claims in the industry or under another contract, in this contract they fell within the Professional Services definition and were excluded from coverage.
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