Jalbert v. Zurich Services Corporation

United States Court of Appeals
For the First Circuit

No. 18-2244

CRAIG R. JALBERT,
in his capacity as Trustee of the F2 Liquidating Trust,

Plaintiff, Appellant,

v.

ZURICH SERVICES CORPORATION, d/b/a Zurich American
Insurance Co.; and X.L. GLOBAL SERVICES, INC., d/b/a
XL Catlin Specialty Insurance Co.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]

Before

Howard, Chief Judge,
Torruella, and Thompson, Circuit Judges.

Andrew B. Ryan, with whom Robert J. Giglio, Jr., Ryan Law
Partners LLP, William Baldiga, and Brown Rudnick LLP were on brief,
for appellant.
Andrew L. Margulis, with whom Ropers, Majeski, Kohn & Bentley,
P.C. was on brief, for appellee Zurich American Insurance Co.
Cara Tseng Duffield, with whom Wiley Rein LLP was on brief, for
appellee XL Specialty Insurance Co.

March 20, 2020
 TORRUELLA, Circuit Judge. This case involves an

insurance coverage dispute between plaintiff-appellant Craig R.

Jalbert ("Jalbert"), in his capacity as trustee of the

F2 Liquidating Trust -- a trust established during the bankruptcy

proceedings of former investment advisory firm F-Squared

Investments, Inc. ("F-Squared")1 -- and two of F-Squared's excess

insurers.

Jalbert filed suit against Zurich American Insurance Co.

("Zurich") and XL Specialty Insurance Co. ("XL") (collectively,

the "Excess Insurers") to recover unreimbursed defense costs that

F-Squared incurred in connection with a Securities and Exchange

Commission ("SEC") investigation of F-Squared. Jalbert claimed

that the Excess Insurers' refusal to cover those costs constituted

a breach of their insurance contracts. The Excess Insurers argued

that F—Squared is not entitled to coverage because the underlying

claim at issue here should be deemed to have been "first made"

before their respective policies took effect on October 3, 2013.

Jalbert, on the other hand, asserted that enforcement proceedings

against F-Squared were not a reasonable possibility until after

1 The F2 Liquidating Trust was "established . . . to recover on
behalf of F-Squared as its successor-in-interest." Jalbert v.
SEC, 945 F.3d 587, 589 (1st Cir. 2019).

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the Excess Insurers' policy period began to run and thus, that the

underlying claim was first made within the policy period.

The Excess Insurers filed motions for summary judgment,

which Jalbert opposed. In granting summary judgment for the

Excess Insurers, the district court held that an SEC order issued

on September 23, 2013 -- before the start of the Excess Insurers'

coverage period -- initiated an investigation of F-Squared based

on information tending to show that F-Squared had violated federal

securities laws. The court ruled that this order triggered the

policy's "deemed-made" clause, which meant that the claim was

deemed "first made" at that time, prior to the Excess Insurers'

policy taking effect. Jalbert now appeals the grant of summary

judgment to the Excess Insurers. After careful review, we affirm,

finding that the SEC investigation is a claim that is deemed to

have been first made when the SEC order issued on September 23,

2013, prior to the inception of the Excess Insurers' policies and

thus outside of their coverage period.

I. Background

A. Factual Background

1. The SEC Investigation

On September 23, 2013, the SEC began a private

investigation of F-Squared by issuing an "Order Directing Private

Investigation and Designating Officers to Take Testimony" in a

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non-public document captioned "In the Matter of F-Squared

Investments, Inc., (B-2855)" (the "Formal Order"). The Formal

Order indicated that the SEC had information that tended to show

that, from at least January 1, 2009, F-Squared and some of its

affiliated entities and individuals had distributed false and

misleading advertisements to clients or prospective clients in

possible violation of the Securities Act of 1933, the Securities

Exchange Act of 1934, the Investment Advisers Act of 1940, and the

Investment Company Act of 1940. It ordered "that a private

investigation be made to determine whether any persons or entities

ha[d] engaged in, or [were] about to engage in, any of the reported

acts or practices or any acts or practices of similar purport or

object." The Formal Order also empowered certain SEC officers to

issue subpoenas, take evidence, and require the production of

relevant documents. On September 30, 2013, the SEC issued a

"Supplemental Order Designating Additional Officers" to the

investigation. The order shared the same caption as the Formal

Order.

On October 2, 2013, the SEC's Division of Enforcement

served a subpoena on F-Squared in connection with F-Squared's

"formal investigation." The subpoena requested documents

pertaining to, among other things, F-Squared's advertisements,

marketing materials, presentations, documents, due diligence and

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performance records, and communications concerning one of its

investment strategies. The subpoena bore the same caption as the

Formal Order and expressly referenced the Formal Order as

authorizing its issuance. On October 7, 2013, the SEC served

deposition subpoenas on F-Squared's CEO, Howard Present, and its

Managing Director, Richard Tomney. Both subpoenas bore the same

caption as the Formal Order and the October 2, 2013 subpoena.

On October 17, 2013, F-Squared requested a copy of the

Formal Order from the SEC, which the SEC provided the next day,

along with a copy of the supplemental order designating additional

officers. F-Squared amassed millions of dollars in defense costs

as a result of the investigation.

2. The Insurance Policies

a. The 2012-2013 Policies

F-Squared had a primary $5 million insurance policy from

Columbia Casualty Company ("Columbia") for the period of

October 3, 2012 to October 3, 2013. F-Squared also obtained an

excess policy from Federal Insurance Company ("Federal") for an

additional $5 million in excess coverage (after the Columbia policy

exhausted its $5 million limit) for the same period. The Federal

policy is a "follow-form" policy to Columbia's, meaning that

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coverage is subject to the terms and conditions of the primary

policy (here, Columbia), unless otherwise specified.2

The Columbia policy (and therefore the Federal policy)

covers only "any claim first made against [F-Squared] during the

policy period." The policy defines "Claim" to include:

a formal regulatory proceeding (civil,
criminal or administrative) against or formal
investigation of an Insured, including when
such Insured is identified in a written Wells3
or other notice from the SEC or a similar state
or foreign government authority that describes
actual or alleged violations of securities or
other laws by such Insured . . . for a Wrongful
Act . . . .

A "Wrongful Act," in turn, is defined as "any actual or alleged

error, misstatement, misleading statement, act, omission, neglect

or breach of duty."

The key policy provision for this appeal is the

"Deemed-Made Clause," which provides guidance to determine when

2 For this reason, we will look to the language of the Columbia
policy when analyzing Jalbert's claims against the Excess
Insurers.
3 The SEC defines a Wells Notice as "a communication from the
staff to a person involved in an investigation that: (1) informs
the person the staff has made a preliminary determination to
recommend that the [SEC] file an action or institute a proceeding
against them; (2) identifies the securities law violations that
the staff has preliminarily determined to include in the
recommendation; and (3) provides notice that the person may make
a submission to the [SEC's] Division [of Enforcement] and the [SEC]
concerning the proposed recommendation." SEC Div. of Enf't,
Enforcement Manual 19-20 (2017).

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certain claims are deemed "first made" and therefore, whether they

are covered by the policy. With respect to a formal investigation,

the clause provides that "[a] Claim shall be deemed first made"

upon "an Insured being identified by name in an order of

investigation, subpoena, Wells Notice or target letter . . . as

someone against whom a civil, criminal, administrative or

regulatory proceeding may be brought."

b. The 2013-2014 Policies

F-Squared renewed both the Columbia and Federal policies

for the policy period running from October 3, 2013 to

October 3, 2014. For this same period, F-Squared also sought

additional excess coverage from the Excess Insurers. Zurich

issued a $5 million second excess policy and XL issued a $5 million

third excess policy for F-Squared.4 Thus, for the 2013-2014 policy

period, F-Squared had a total of $20 million in liability insurance

coverage. The Excess Insurers' policies followed the terms,

conditions, and limitations of the 2013-2014 Columbia policy and

the other underlying policies (which also followed the Columbia

policy). All four 2013-2014 policies, thus, applied "only to any

claim first made against [F-Squared]" between October 3, 2013 and

4 Coverage under the Zurich policy applied once the primary and
first excess policies had been exhausted, and coverage under the
XL policy applied when the first two and the Zurich policies'
limits were reached.

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October 3, 2014. The relevant provisions of the 2013-2014

Columbia policy remained substantively unchanged from those in the

2012-2013 Columbia policy, which we have already described.

3. F-Squared Seeks Coverage

On November 7, 2013, F-Squared emailed Columbia a

"notice of claim" letter informing it of the October 2 and

October 7 subpoenas in connection with "a formal investigation by

the [SEC]," for which it had retained counsel. F-Squared attached

the subpoenas (but not the Formal Order) and requested coverage

under the 2012-2013 policy "or its renewal which ha[d] not yet

been received," as well as "confirmation of coverage under all

applicable policies issued by [Columbia]."5 It also forwarded the

letter to Federal, Zurich, and XL. On December 10, 2013, Columbia

agreed to provide coverage under the 2012-2013 policy for the

defense costs incurred, and ultimately paid up to the $5 million

limit of liability. Federal also paid its $5 million limit of

liability under its 2012-2013 policy. The Excess Insurers,

however, denied coverage to F-Squared on the basis that the SEC

investigation constituted a claim first made prior to the 2013-2014

policy period and thus outside the policies' coverage.

5 In the letter's subject line, F-Squared made reference to
"Policy Number: 287443198 (renewed)."

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 B. Procedural History

On November 10, 2017, after F-Squared filed for

bankruptcy, Jalbert sued the Excess Insurers in the United States

District Court for the District of Massachusetts for breach of

contract. Jalbert alleged that the Excess Insurers breached their

contractual duty under their respective insurance policies to

reimburse F-Squared for defense costs incurred in connection with

its response to the SEC investigation. On February 28, 2018, the

Excess Insurers each filed motions for summary judgment on multiple

grounds, including that F-Squared was not entitled to coverage

because the underlying claim was not deemed to have been first

made during the effective policy period commencing on October 3,

2013. 6 Jalbert countered that the Deemed-Made Clause was

inapplicable because the Formal Order did not state that the SEC

would bring a proceeding against F-Squared.

On September 5, 2018, the district court granted the

Excess Insurers' motions for summary judgment. Jalbert v. Zurich

Servs. Corp., 325 F. Supp. 3d 212 (D. Mass. 2018). The court

found that based on the plain language of the policy, the Formal

Order "clearly fit[]" within the Deemed-Made Clause because "it

sufficiently identifie[d] F-Squared 'as someone against whom a

6 XL joined and incorporated the arguments in Zurich's motion for
summary judgment into its own motion.

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civil, criminal, administrative, or regulatory proceeding may be

brought.'" Id. at 215. Specifically, it pointed out that the

Formal Order "identifie[d] F-Squared by name, allege[d] numerous

'possible violation[s]' of federal securities laws, and direct[ed]

the commencement of an investigation." Id. The court also

rejected Jalbert's argument that the policy was ambiguous, instead

finding that the Deemed-Made Clause's language was "expansive" and

that the clause was satisfied "by an order that presages the

likelihood of proceedings." Id. at 215-16. It reasoned that the

Formal Order met that "low bar because it initiated a private

investigation based on information tending to show that F-Squared

had violated numerous federal laws." Id. at 215. The court

concluded that "[s]ince that order [was] issued on September 23,

201[3],7 before the coverage period of the Zurich and XL policies,

neither defendant is obligated to reimburse F-Squared for its

defense costs." Id. (footnote added). F-Squared then appealed

the district court's order.

7 Initially, the district court correctly pointed out that the
Formal Order had issued on September 23, 2013. Jalbert, 325 F.
Supp. 3d at 213. Later in the opinion, presumably inadvertently,
it began referring to the order as issued on September 23, 2012.
It is undisputed that the SEC issued the Formal Order on
September 23, 2013.

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 II. Discussion

Because Jalbert appeals from a grant of summary judgment

to the Excess Insurers, we review the order below de novo,

affirming only "if there is no genuine issue of material fact and

[the Excess Insurers are] entitled to judgment as a matter of law."

BioChemics, Inc. v. AXIS Reinsurance Co., 924 F.3d 633, 638

(1st Cir. 2019). "The interpretation of an insurance policy is a

question of law," UBS Fin. Servs., Inc. of P.R. v. XL Specialty

Ins. Co., 929 F.3d 11, 20 (1st Cir. 2019) (quoting Valley Forge

Ins. Co. v. Field, 670 F.3d 93, 97 (1st Cir. 2012)), which we also

review de novo, Zurich Am. Ins. Co. v. Elec. Me., LLC, 927 F.3d

33, 35 (1st Cir. 2019) (citing Massamont Ins. Agency, Inc. v. Utica

Mut. Ins. Co., 489 F.3d 71, 72 (1st Cir. 2007)).

A.

Under Massachusetts law -- the law applicable in this

diversity case, see Sanders v. Phoenix Ins. Co., 843 F.3d 37, 42

(1st Cir. 2016) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78

(1938)) -- "we construe an insurance policy under the general rules

of contract interpretation, beginning with the actual language of

the policies, given its plain and ordinary meaning." Easthampton

Congregational Church v. Church Mut. Ins. Co., 916 F.3d 86, 91

(1st Cir. 2019) (quoting AIG Prop. Cas. Co. v. Cosby, 892 F.3d 25,

27 (1st Cir. 2018)). Along the way, we must be cognizant of "what

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an objectively reasonable insured, reading the relevant policy

language, would expect to be covered." Brazas Sporting Arms, Inc.

v. Am. Empire Surplus Lines Ins. Co., 220 F.3d 1, 4 (1st Cir. 2000)

(quoting GRE Ins. Grp. v. Metro. Boston Hous. P'ship, Inc., 61

F.3d 79, 81 (1st Cir. 1995)). We deem a term to be ambiguous if

it is "susceptible of more than one meaning and reasonably

intelligent persons would differ as to which meaning is the proper

one." Easthampton Congregational Church, 916 F.3d at 92 (quoting

U.S. Liab. Ins. Co. v. Benchmark Constr. Servs., Inc., 797 F.3d

116, 119-20 (1st Cir. 2015)). If that is the case, the ambiguity

will be construed against the insurer. Valley Forge Ins. Co., 670

F.3d at 97. An ambiguity will not exist, however, "simply because

the parties disagree about the proper interpretation of a policy

provision." Id. With this in mind, we turn to the relevant

policy provision.

B.

The Columbia policy (the primary policy), which the

excess policies follow, is a "claims made" policy. This type of

policy generally "covers acts and omissions occurring either

before or during the policy term, provided the claim is discovered

and reported to the insurer during the same policy term."

Lind-Hernández v. Hosp. Episcopal San Lucas Guayama, 898 F.3d 99,

101 (1st Cir. 2018) (citing DiLuglio v. New Eng. Ins. Co., 959

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F.2d 355, 358 (1st Cir. 1992)). This Court has explained that

"claims made" policies are based on the idea that

[a]s it is often difficult to ascertain the precise
date of the act or omission which constituted the
alleged [wrongful act] . . . the pivotal event for
insurance coverage purposes becomes the date the claim
is made against the insured, rather than the date of
the act or omission forming the basis for the claim.

Id. at 101-02 (first and second alterations in original) (quoting

DiLuglio, 959 F.2d at 358).

In its Deemed-Made Clause, the Columbia policy contains

instructions to determine when a claim is "first made" and coverage

attaches. It states that:

A Claim shall be deemed first made on the following
dates:

. . . .

(c) with respect to a formal investigation[,]
. . . upon:

i. an Insured being identified by name in an order of
investigation, subpoena, Wells Notice or target
letter . . . as someone against whom a civil,
criminal, administrative or regulatory proceeding may
be brought . . . .

(emphasis added). The parties agree that the SEC investigation,

commenced by the Formal Order, is a "formal investigation" and

thus a "Claim" as that term is defined in the policies. It is

further undisputed that the Formal Order is "an order of

investigation" that identifies F-Squared by name. Therefore, we

must only decide whether the September 23, 2013 Formal Order

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identifies F-Squared "as someone against whom a civil, criminal,

administrative or regulatory proceeding may be brought" such that

the claim is deemed first made upon its issuance and prior to the

Excess Insurers' coverage period beginning on October 3, 2013.

C.

Jalbert presses two main arguments in support of his

contention that the costs of the SEC investigation should be

covered under the Excess Insurers' policies. First, he argues

that the Deemed-Made Clause is not satisfied by the Formal Order

because the SEC investigation was not conclusive proof that

enforcement proceedings against F-Squared were a "reasonable

possibility." Second, he avers that the Deemed-Made Clause is

ambiguous and we should construe it in the manner most favorable

to F-Squared. We address each argument in turn.

1.

Jalbert begins by contending that the district court

erred in ruling that the phrase "may be brought" in the Deemed-Made

Clause was "plainly expansive" and that it was "satisfied by an

order that presages the likelihood of proceedings." According to

Jalbert, the word "may" commonly means "a reasonable possibility,"

and the court erred in equating it with "might," which represents

a possibility that is more tentative or remote. On the "continuum

of possibility," Jalbert avers, "may" denotes a "moderate

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possibility" of an event occurring, while "might" denotes a "weak

possibility."

Jalbert further believes the Formal Order fails to

indicate "whether (or to what extent) SEC proceedings against

F-Squared [were] a [reasonable] possibility" and therefore, he

contends that the district court erred in finding that the Formal

Order signified that a civil, criminal, administrative, or

regulatory proceeding might be brought against F-Squared. To make

his case, Jalbert asserts that a reasonable juror could find that

an investigation is distinct from an enforcement proceeding. He

further refers to the SEC Enforcement Manual to add weight to his

claim that the Formal Order was "purely investigatory," because it

"seeks to determine whether a violation of the federal securities

laws may have occurred or may be occurring"; moreover the

individuals running the investigation cannot adjudicate any claim

and any enforcement action must be authorized by the SEC.

Lastly, Jalbert attempts to further elucidate why the

Formal Order does not "incontrovertibly show" that SEC proceedings

were "a reasonable possibility" by contrasting a Wells Notice or

target letter with the Formal Order. He asserts that the former

"clearly, directly, and unequivocally tells the recipient that

proceedings may be brought against them" after securities-laws

violations have been preliminarily determined or a target of an

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investigation has been identified based on "substantial evidence."

The latter "neither threatens nor suggests possible proceedings."

We do not find Jalbert's arguments persuasive. Instead,

we agree with the district court that the Formal Order satisfies

the Deemed-Made Clause because the order "presages the likelihood

of proceedings." See Jalbert, 325 F. Supp. 3d at 215. In other

words, we find that the Formal Order identified F-Squared "as

someone against whom a civil, criminal, administrative or

regulatory proceeding may be brought."

Black's Law Dictionary defines the verb "may" as "[t]o

be permitted to"; "[t]o be a possibility"; "[l]oosely, is required

to; shall; must." May, Black's Law Dictionary (11th ed. 2019)

(emphasis added); see Brazas Sporting Arms, Inc., 220 F.3d at 4

(instructing that courts consider the plain and ordinary meaning

of policy language). Based on this ordinary meaning, a claim

relating to a formal investigation will be deemed first made when

an insured is identified by name in one of the qualifying documents

(here, an order of investigation) as someone against whom there is

a possibility that a proceeding will be brought. At a minimum,

the Formal Order expressed such a possibility. It indicated that

F-Squared may have violated several federal securities laws.

Furthermore, it expressly directed "that a private investigation

be made to determine whether" F-Squared had actually engaged or

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was going to engage in "acts or practices" that violated any of

the securities laws listed in the order. Moreover, this order was

issued by the SEC's Division of Enforcement and designated officers

to issue subpoenas, take evidence, and request the production of

documents, which further supports an inference that the

institution of proceedings was possible. Indeed, the SEC served

a subpoena on F—Squared related to the matter in the Formal Order

as soon as October 2, 2013.

Based on the Formal Order alone, a reasonable jury would

have to find that a civil, criminal, administrative, or regulatory

proceeding against F-Squared was at least a possibility. It would

be unreasonable for a jury to interpret the Formal Order as not

carrying with it a possibility that an enforcement proceeding would

follow. Likewise, if the Formal Order had issued during the policy

period, a reasonable insured in F-Squared's position would have

expected to be covered under the policy for its expenses in

connection with the SEC investigation. See Brazas Sporting Arms,

Inc., 220 F.3d at 4 (noting that in construing the language of a

policy, we must consider "what an objectively reasonable insured,

reading the relevant policy language, would expect to be covered"

(quoting GRE Ins. Grp., 61 F.3d at 81)). The Deemed-Made Clause

requires nothing more. To that end, the clause is devoid of any

qualifying terms to express what degree of possibility is needed

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to satisfy it. Thus, while Jalbert attempts to make a distinction

between different levels of possibility, we agree with the district

court that the plain language of the clause is expansive and is

fulfilled by the possibility of proceedings that the Formal Order

presented.

Jalbert goes to great lengths to resist this conclusion

by attempting to distinguish the concept of an SEC investigation

from that of an enforcement action. He contends that based on

this distinction, a jury could find that the Formal Order did not

indicate whether an enforcement proceeding against F-Squared was

not a reasonable possibility. Jalbert points to Center for Blood

Research, Inc. v. Coregis Insurance Co., 305 F.3d 38 (1st Cir.

2002), for the proposition that an enforcement proceeding is

instituted separately from an investigation. He similarly relies

on MusclePharm Corp. v. Liberty Insurance Underwriters, Inc.,

citing part of that opinion that states that through a formal

order, "the SEC was not seeking relief, but was only gathering

information," 712 F. App'x 745, 754 (10th Cir. 2017), and

concluding that a regulatory investigation was not a proceeding,

id. at 755. Nevertheless, this argument misses the point. The

investigation does not need to be an enforcement action or

proceeding, or actually result in one, for the plain language "may

be brought" in the Deemed-Made Clause to be satisfied; there must

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be only a possibility of a future enforcement action for the claim

to be deemed first made. Thus, for purposes of this appeal,

Jalbert's distinction is one without any practical difference.8

Furthermore, Center for Blood Research, Inc. concerned

an investigative subpoena, which we found merely requested

information from a party. 305 F.3d at 42-43. In contrast, this

case involves a formal order from the SEC ordering investigation

into various of F-Squared's actions which, if verified, would

constitute violations of multiple federal laws. Unlike a mere

request for information, the Formal Order therefore identified

F-Squared "as someone against whom" an enforcement "proceeding may

be brought," which suffices to deem a "claim" to have been "first

made" under the Deemed-Made Clause here. Moreover, unlike the

contract in Center for Blood Research, Inc., F-Squared's policy

covers formal investigations and does not require a "judicial or

administrative proceeding in which [the] insured(s) may be

subjected to a binding adjudication of liability." Id. at 42.

MusclePharm Corp. is likewise distinguishable from the case at

hand. There, the court considered whether an SEC formal order and

subpoenas were "claim[s]" as defined in the applicable policy to

8 For these same reasons we find futile Jalbert's references to
the SEC Enforcement Manual to attempt to show that the Formal Order
was simply an investigation and not an enforcement action.

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include "a written demand for monetary or non-monetary relief" or

"a formal administrative or regulatory proceeding." 712 F. App'x

at 753. The court ultimately held that they were not. Id. at

755. The definition of "claim" in that case is remarkably

different from the provision at issue in this appeal, and a

comparison to this scenario is inapposite.

Jalbert's contrasting of the Formal Order with a Wells

Notice or target letter is similarly unavailing. The institution

of proceedings need not be a certainty. As we already said, the

Deemed-Made Clause here is satisfied by simply a possibility that

those proceedings will take place, and the Formal Order delineating

potential securities-law violations carries that future

possibility. Furthermore, Jalbert's proposed reading is

unsupported because the clause provides that the insured be named

in "an order of investigation, . . . Wells Notice or target

letter . . . as someone against whom [one of the qualifying

proceedings] may be brought." Jalbert's interpretation that a

Wells Notice or target letter, but not the Formal Order, satisfy

the possibility that an enforcement action would be commenced would

render meaningless the inclusion of "order of investigation" in

the Deemed-Made Clause. See UBS Fin. Servs., Inc. of P.R., 929

F.3d at 24 (stating that we would not construe a term in a way

that would render meaningless other terms of the policy). Because

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adopting Jalbert's view would require us to rewrite the policy in

a way that would change the terms of coverage, we refuse to do so.

2.

Unrelenting, Jalbert argues that the Deemed-Made Clause

is ambiguous, which he contends entitles him to the interpretation

of the policy that is more favorable to F-Squared. To prove

ambiguity, Jalbert asserts that "reasonably intelligent persons

would differ" about the interpretation of the clause based on "the

level of possibility" a person could assign to the word "may." He

asks us to solve the purported ambiguity against the insurer.

Jalbert's argument that the clause's use of the word

"may" renders it ambiguous is unpersuasive. Although it is

feasible the word "may" connotes differing levels of possibility

depending on the context, "the mere existence of multiple

dictionary definitions of a word, without more" does not suffice

to create ambiguity. Ctr. for Blood Research, 305 F.3d at 41

(internal quotations omitted). Nor does ambiguity exist because

a controversy exists between the parties. See Certain Interested

Underwriters at Lloyd's, London v. Stolberg, 680 F.3d 61, 66

(1st Cir. 2012) ("[A]mbiguity -- unlike beauty -- does not lie

wholly in the eye of the beholder. . . . A policy provision will

not be deemed ambiguous simply because the parties quibble over

its meaning."). A term "is ambiguous only if it is susceptible

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of more than one meaning and reasonably intelligent persons would

differ as to which meaning is the proper one." Id. (quoting

Citation Ins. Co. v. Gomez, 688 N.E.2d 951, 953 (Mass. 1998)). In

any event, we cannot see how an interpretation of the word "may"

having different "levels of possibility" would change the result

reached above.

Even if the Deemed-Made Clause required the "reasonable

possibility" of an enforcement proceeding, a reasonable insured

would read the Formal Order, which identified F-Squared as the

subject of an investigation into conduct that constituted or could

constitute violations of securities laws, to express a "reasonable

possibility" that an enforcement action would be brought against

it and would expect coverage at that point. See Brazas Sporting

Arms, Inc., 220 F.3d at 4. There is no supportable basis from

which a jury could find that the Deemed-Made Clause is not

triggered by the Formal Order. The claim here, then, is deemed

to have been made at the time the Formal Order was issued on

September 23, 2013. The Excess Insurers' policies did not take

effect until October 3, 2013, and thus the claim was deemed made

outside their coverage period. Accordingly, the Excess Insurers

are not obligated to reimburse F-Squared for its defense costs.9

9 Because we conclude that F-Squared's claim for the SEC
investigation is deemed to have been first made outside the Excess
Insurers' policies' coverage period, we need not reach the separate

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 III. Conclusion

For the foregoing reasons, we affirm the district

court's decision granting summary judgment in favor of the Excess

Insurers. The parties shall bear their own costs.

Affirmed.

issues of whether the Prior Notice Exclusion or the Prior or
Pending Exclusion bar coverage for the investigation.

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