[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-14678 May 28, 2008
________________________ THOMAS K. KAHN
D. C. Docket No. 04-02523-CV-CAP-1 CLERK
EXECUTIVE RISK INDEMNITY INC.,
Plaintiff-Counter
Defendant-Appellant,
versus
AFC ENTERPRISES INC.,
FRANK J. BELATTI,
GERALD J. WILKINS,
DICK R. HOLBROOK,
Defendants-Counter
Claimants-Appellees,
SAMUEL N. FRANKEL,
MARK J. DORAN,
PAUL FARRAR,
MATT L. FIGEL,
PETER STARRETT, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 28, 2008)
Before CARNES and MARCUS, Circuit Judges, and BUCKLEW,* District Judge.
PER CURIAM:
In this insurance case, Executive Risk Indemnity Inc. (“Executive Risk”)
appeals from a final judgment entered by the United States District Court for the
Northern District of Georgia, after a bench trial, awarding AFC Enterprises Inc.
$24,295,890.40 in damages for breach of contract.
Executive Risk makes four basic claims on appeal. First, it says the district
court erred in finding that AFC made no material misrepresentations in connection
with the renewal of an insurance policy. Second, it claims that the trial court
abused its discretion in denying its motion to compel discovery from AFC’s
accountant, KPMG. Third, it contends that the court abused its discretion in
denying its motion to amend the complaint. Finally, it argues that the district court
erred in concluding that Executive Risk was not entitled to an allocation of the
losses incurred by AFC in settling a number of securities and derivative lawsuits in
2003 (‘the underlying actions”). After review, we affirm the judgment of the
district court based on its thorough and well-reasoned opinion of September 21,
2007.
As to the question of allocation, however, we add this observation. Pursuant
*
Honorable Susan C. Bucklew, United States District Judge for the Middle District of Florida,
sitting by designation.
2
to the terms of the insurance policy, Executive Risk can seek an allocation only
where both “Loss covered by this Policy and Loss not covered by this Policy are
incurred,” that is, either (1) where “a Claim made against the Insureds includes
both covered and uncovered matters,” or (2) where “a Claim is made against both
Insureds and others not included within the definition of ‘Insured.’”1 Neither
circumstance is presented in this case. There is no dispute that the “claims” raised
in the underlying actions involved only covered “matters.” Moreover, it is
undisputed that all of the underlying actions were raised against “Insured” persons
or entities. On this policy, Executive Risk is not entitled to an allocation of the
settlement losses.
Accordingly, we affirm.
AFFIRMED
1
In pertinent part, the policy states:
If both Loss covered by this Policy and Loss not covered by this Policy are
incurred, either because a Claim made against the Insureds includes both covered
and uncovered matters, or because a Claim is made against both Insureds and
others not included within the definition of “Insured” . . . , [the Insureds] agree to
use their best efforts to determine a fair and proper allocation of all such amounts.
. . . In the event that an allocation cannot be agreed to, then [Executive Risk] shall
be obligated to make an interim payment of the amount of Loss, Including
Defense Expenses, which the parties agree is not in dispute until a final amount is
agreed upon or determined pursuant to the provisions of this Policy and
applicable law.
The Policy § V, ¶ (B)(5) (emphasis added).
3