[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 8, 2007
No. 06-16184
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D.C. Docket No. 05-01282-CV-T-26-MSS
CLARENDON NATIONAL INSURANCE COMPANY,
Plaintiff-Appellee,
versus
BRAD H. MULLER, individually, and as
Trustee of the Corrine R. Muller Trust,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 8, 2007)
Before BIRCH, HULL and COX, Circuit Judges.
PER CURIAM:
Clarendon National Insurance Company (“Clarendon”) filed a declaratory
judgment action against its insureds Domenic Massari and Massari’s law firm
(collectively, “Massari”), as well as Brad Muller, individually and as Trustee of the
Corrine R. Muller Trust. Massari was voluntarily dismissed. After all other claims
were voluntarily dismissed, Clarendon and Muller filed cross-motions for summary
judgment on the one claim remaining in the case, Clarendon’s request for a
declaration that the insurance policy issued to Massari for the policy period July 1,
2000 to July 1, 2001 (“the policy”) does not afford coverage for the defense and
indemnification of claims for attorney malpractice and related torts that had been
brought in another lawsuit by Muller against Massari. The district court granted
summary judgment to Clarendon. Muller appeals.
We find no reversible error in the district court’s grant of summary judgment.
The parties do not dispute that Massari communicated to Clarendon, by letter dated
June 27, 2002, that Muller had made Massari aware of some concerns that Muller had
about Massari’s prior legal representation and the potential that these concerns would
result in litigation. Neither do the parties dispute that this was the one notice
provided by Massari to Clarendon prior to July 1, 2002 (the end of the extended
reporting period). The parties’ dispute centers around whether the letter provided
Clarendon with notice of a “claim” or only a “potential claim” and, if the latter,
whether coverage is afforded under the policy for “potential claims” that Massari
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made known to Clarendon after expiration of the policy period but before expiration
of the extended reporting period.
The policy defines a claim as “a demand received by the Insured for money or
services arising out of an act or omission, including personal injury, in the rendering
of or failure to render legal services.” (R.2-42 Ex. A at 11.) The plain language of
Massari’s letter to Clarendon does not put Clarendon on notice that, as of the date of
that letter, Muller had made any present demand. (R.1-30 Ex. A.) The letter simply
informed Clarendon that, if future events did not resolve Muller’s concerns that he
and the trust would suffer damages as a result of Massari’s malpractice, Muller may
make a demand for money or services, in the form of a lawsuit. Therefore, Massari
did not provide Clarendon with notice of a claim, as defined by the policy, within the
extended reporting period.
And, the plain language of the policy does not extend coverage to potential
claims reported during the extended reporting period. Coverage is only available for
actual claims reported during that period. (R.2-42 Ex. A at 17.)
AFFIRMED.1
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Appellant’s Motion to Certify Questions to the Florida Supreme Court is DENIED.
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