Boral Industries, Inc. v. Continental Casualty Co.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 05-10198 ELEVENTH CIRCUIT
AUGUST 1, 2005
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK

D. C. Docket No. 02-02929-CV-JTC-1

BORAL INDUSTRIES, INC.,

Plaintiff-Appellant,

versus

CONTINENTAL CASUALTY COMPANY,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 1, 2005)

Before TJOFLAT, DUBINA and MARCUS, Circuit Judges.

PER CURIAM:

Boral Industries, Inc. (“Boral”) appeals the district court’s entry of summary

judgment in favor of Continental Casualty Company (“Continental”), in Boral’s

action to obtain a declaration that its commercial general liability policy with
Continental did not provide coverage for the underlying indemnity claim and,

therefore, Continental had acted in bad faith by settling the claim for less than the

policy deductible and then seeking to recover the total amount of the settlement from

Boral. In a counterclaim, Continental sought recovery, under the policy deductible,

of the $300,000 settlement payment. After the completion of discovery, the parties

filed cross-motions for summary judgment. The district court, interpreting the “right

to settle” provision in Boral’s Continental policy, concluded that the provision, which

was unqualified, permitted the settlement of the underlying claim and that Continental

was entitled to full reimbursement since the deductible exceeded the settlement

amount. Accordingly, it granted Continental’s motion for summary judgment on both

Boral’s claims and Continental’s counter-claim. After thorough review of the record

and careful consideration of the parties’ briefs, we affirm.

We review the district court’s order granting summary judgment de novo. See

Madray v. Publix Supermarkets, Inc., 208 F.3d 1290, 1296 (11th Cir. 2000). A

motion for summary judgment should be granted when “the pleadings, depositions,

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

show that there is no genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56 (c). “Where the

record taken as a whole could not lead a rational trier of fact to find for the non-

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moving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538

(1986) (quoting First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289,

88 S. Ct. 1575, 1592, 20 L. Ed. 2d 569 (1968)).

Interpreting the “right to settle” and deductible provisions in the Continental

policy and applying Georgia law, the district court held that Boral, as a sophisticated

corporate entity, had the opportunity to bargain for insurance without a provision that

granted the insurer an “unfettered right to settle claims.” Thus, the court concluded,

Boral, having contractually afforded the right to settle a claim like the underlying

indemnity action here, was obligated to reimburse Continental for the settlement so

long as Continental did not act with bad faith. On the record before it, the district

court found no evidence of bad faith on Continental’s part. Moreover, the district

court determined that there was no genuine issue of fact that Continental had acted

reasonably and in compliance with the unambiguous terms of the policy in (1) settling

the underlying claim and (2) seeking reimbursement from Boral for in an amount that

was less than the deductible. Based on our review of the unambiguous policy

provisions at issue in this appeal and the applicable Georgia law interpreting such

unequivocal provisions in the same manner, we too conclude that Continental was

entitled to summary judgment.

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The district court also denied Boral’s motion to compel discovery and motion

for sanctions based on Continental’s alleged failure to provide the requested

discovery in a timely manner. These motions concerned Boral’s request for

production of correspondence between Continental and its “outside counsel.”

Continental claimed that the requested items were protected from disclosure by the

attorney-client privilege. After conducting an in camera inspection of the

correspondence, the district court first noted that the requests to produce were

untimely since discovery had closed four months before Continental’s request.

Moreover, the court found that the items, which were marked “attorney-client

privileged,” contained information that was “largely redundant of other

correspondence and evidence produced in discovery and presently in the record.” We

can find no abuse of discretion in the district court’s decision on this issue. See

Harris v. Chapman, 97 F.3d 499, 506 (11th Cir. 1996) (reviewing district court

rulings on discovery motions and discovery sanctions under abuse of discretion

standard).

AFFIRMED.