UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1241
GRAPHIC ARTS MUTUAL INSURANCE COMPANY; UTICA MUTUAL
INSURANCE COMPANY,
Plaintiffs - Appellees,
v.
CALDWELL CHEVROLET, INC., d/b/a Fred Caldwell’s Clover
Chevrolet,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Margaret B. Seymour, Senior
District Judge. (0:11-cv-01255-MBS)
Submitted: June 17, 2013 Decided: July 5, 2013
Before MOTZ, DUNCAN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Adam J. Neil, Wesley B. Sawyer, MURPHY GRANTLAND, P.A.,
Columbia, South Carolina, for Appellant. Elizabeth S. Skilling,
John A. Merrick, Robert F. Friedman, HARMAN, CLAYTOR, CORRIGAN &
WELLMAN, Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In this diversity insurance coverage dispute, the district
court issued a declaratory judgment finding the insurer had no
duty to defend or indemnify the insured. See Graphic Arts Mut.
Ins. Co. v. Caldwell Chevrolet, Inc., No. 0:11-01255-MBS (D.S.C.
Sept. 10, 2012). The insured now appeals and we affirm.
This appeal grows out of a suit filed by a number of
plaintiffs in state court against Caldwell Chevrolet, Inc. and
other car dealers. Plaintiffs asserted that the dealers had
engaged in a common practice of collecting illegal
“administrative fees” from buyers. The dealers allegedly
characterized the fees as “mandatory,” administrative
reimbursement for actual costs to the dealer, rather than simply
a way to inflate the price of a car. Caldwell sought a defense
in the state action from its insurer, Graphic Arts, which agreed
to defend under a reservation of rights. Graphic Arts then
initiated this action, seeking a declaration that it had no
obligation to Caldwell under the policy.
The district court held that the policy issued by Graphic
Arts did not provide coverage to Caldwell in the underlying
action. The court reasoned that the endorsement for failing to
comply with a “[t]ruth in lending statute, or any statute that
. . . regulates disclosures” did not apply because the
underlying complaint “d[id] not allege violation of a lending or
leasing disclosure statute.” The court also found that
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“coverage does not exist” because the policy expressly excludes
coverage for “[a]ny dishonest, fraudulent, criminal or
intentional act . . . committed by the ‘insured’” and the
underlying complaint made allegations falling “expressly” within
this exclusion.
On October 9, 2012, within twenty-eight days of the
district court’s entry of judgment, Caldwell filed a Rule 59
motion asking the district court to alter or amend its judgment
inter alia on the basis of “newly discovered evidence.” This
“new” evidence was a March 2009 letter sent to Graphic Arts
which assertedly triggered coverage. The district court denied
the motion, finding Caldwell had failed “to demonstrate due
diligence to discover the alleged relevance of the March Letter
to this litigation.” See Boryan v. United States, 884 F.2d 767,
771 (4th Cir. 1989).
Caldwell then noted this appeal raising the same arguments
rejected by the district court. After careful review of the
record, the briefs of the parties, and the controlling law, we
affirm on the basis of the careful opinions of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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