No Cover for Defense of Criminal Charges Made Years After Claim Made by Prosecutors
Appellant Denis M. Field challenged a final summary judgment in favor of dozens of insurers (appellees) in his suit to recover defense costs he incurred in a criminal trial in which he was acquitted. The trial court determined that the costs for which he sought reimbursement were not made in connection with a “claim,” as defined in the policy, during the policy term in Denis M. Field v. Certain Underwriters At Lloyd’s et al, No. 4D19-2429, District Court Of Appeal Of The State Of Florida Fourth District (September 16, 2020)
Appellant was a partner and the CEO of a global accounting firm, BDO Seidman, LLP., until his resignation from the firm in 2003. During the years 2000 through late 2003, BDO, appellant, and others came under government investigation for tax services that the IRS considered to be abusive tax shelters. In 2009, appellant and others were criminally charged in connection with the tax services that they provided. Appellant was eventually acquitted of all charges in 2013.
During the years 2000-2017, BDO and its partners were insured under “towers” of Lloyd’s of London primary and excess insurance policies. Each policy was written for a single year of coverage. In May of 2003, BDO sent to Lloyd’s representative a notice of circumstance. The notice arose out of the tax shelter services which BDO had provided to its high value tax clients. The IRS considered those shelters to be abusive tax shelters, and they were under IRS examination. The notification triggered coverage for the policy year 2002-2003. By the time of appellant’s criminal charges, the 2002-03 underwriters had paid out their limits under the policy.
In 2017, appellant made a claim to the appellees, the 2017-2018 Underwriter Insurers, seeking indemnification for defense costs incurred in the 2009-2013 criminal proceedings, which claim was denied. In his suit appellant claimed coverage for his defense costs under the 2017-18 policy.
Appellees moved for summary judgment on the complaint, attaching the policy. Among their several arguments, they contended that no claim, as defined in the policy was made during the policy period. The trial court held that the plain language of the policy did not allow for the recovery of appellant’s defense costs for his criminal prosecution which ended over four years earlier. The trial court granted judgment in favor of the insurer.
RULES OF INSURANCE INTERPRETATION
Insurance contracts are construed according to their plain meaning, with any ambiguities construed against the insurer and in favor of coverage. When the language of an insurance policy is plain and unambiguous, a court must interpret the policy in accordance with the plain meaning in order to give effect to the policy as written. Insurance contracts are to be reviewed as a whole, viewing all words in context.
The important provisions of the appellee’s policy for consideration of appellant’s claims include the operative clause and the definitions of “claim” and “defense costs.” The “Operative Clause” of the Policy provides: “Subject to all other provisions of this Policy, the Insurer will indemnify the Assured against: “(1) Loss arising from a Claim first made against the Assured during the Policy Period; (2) Defense Costs; (3) Regulatory Loss; (4) Regulatory Defense Costs.”
A “Claim” in the Policy is defined as: “a written demand for monetary or non-monetary relief, which may include a civil legal proceeding or binding arbitration proceeding, made against the Assured by reason of a Wrongful Act[.]”
The first page of the policies state: “THIS IS A CLAIMS MADE POLICY WHICH APPLIES ONLY TO CLAIMS FIRST MADE DURING THE POLICY PERIOD.” The Policy Period is stated to be June 1, 2017 to June 1, 2018.
As the trial court concluded, the policy requires a claim to be a written demand for monetary relief against the Assured as a result of a wrongful act. The wrongful act in this case constituted the professional advice given by appellant with respect to the tax shelter services, which was the origin of the criminal prosecution. The operative clause allows indemnification under the policy for losses from claims, and defense costs. The definition of defense costs plainly requires those costs to be incurred with respect to a claim.
For the purposes of the motion, the trial court accepted appellant’s contention that the criminal prosecution could constitute a claim for non-monetary relief. But that “claim” was not made within the policy period of 2017-18. The criminal prosecution was commenced in 2009. If the claim was not made within the policy period, then there could be no indemnification of defense costs which had to be associated with a claim.
The term Policy Claim is used in the “Conditions” section of the policy. In those provisions, notice to the appelees is a condition of the policy. That provision states, “For the purposes of this Policy, the date on which such Claim . . . is made against the Assured during the Policy period is the date upon which the resulting Policy Claim shall attach to this policy.” Because the Claim giving rise to the claim of indemnification was not made during the policy period, there was no Policy Claim for indemnification on this policy.
In a thorough and well-reasoned opinion, the trial court determined that the costs for which he sought reimbursement were not made in connection with a “claim,” as defined in the policy, during the policy term and the appellate court agreed and affirmed the judgment in favor of the insurers.
Claims made policies, like those involved in this case, are severely limited to claims made during the effective dates of the policy. Since the claim was made in 2009 when the criminal prosecution started or in 2003 when the insured first reported the investigation of the Department of Justice, neither were during the effective dates of the policies of the insurers that Field sued whose policy did not come into effect until 2017. A claim is not made when the insured seeks money from his insurer but when someone makes a claim against the insured.
© 2020 – Barry Zalma
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 52 years in the insurance business. He is available at http://www.zalma.com and firstname.lastname@example.org.
Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.
Over the last 52 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.
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