First Advantage Litigation Consulting, LLC v. American International Specialty Lines Insurance

12-3830-cv (L)
First Advantage Litig. Consulting, LLC v. Am. Int'l Specialty Lines Ins. Co.

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
"SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
the 20th day of May, two thousand thirteen.

PRESENT: DENNY CHIN,
RAYMOND J. LOHIER, JR.,
Circuit Judges,
JOHN F. KEENAN,
District Judge.*

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FIRST ADVANTAGE LITIGATION CONSULTING, LLC,
Plaintiff-Counter
Defendant-Appellant,

-v- 12-3830-cv,
12-3841-cv
AMERICAN INTERNATIONAL SPECIALTY LINES
INSURANCE COMPANY,
Defendant-Cross
Defendant-Appellee,

FEDERAL INSURANCE COMPANY,
Defendant-Cross Claimant-
Cross Defendant-Appellee,

*
The Honorable John F. Keenan, of the United States
District Court for the Southern District of New York, sitting by
designation.
TUDOR INSURANCE COMPANY,
Defendant-Cross
Defendant,

ZURICH AMERICAN INSURANCE COMPANY,
Defendant-Cross
Defendant-Cross Claimant-
Counter Claimant-
Appellee.

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FOR PLAINTIFF-COUNTER EDWARD J. STEIN (Anna M. Piazza,
DEFENDANT-APPELLANT: on the brief), Anderson Kill &
Olick, P.C., Stamford, Connecticut.

FOR DEFENDANT-CROSS ALEXANDER S. LORENZO (Todd R.
DEFENDANT-APPELLEE: David, on the brief), Alston & Bird
LLP, New York, New York.

FOR DEFENDANT-CROSS THOMAS J. CIRONE (Judith F.
CLAIMANT-CROSS DEFENDANT- Goodman, on the brief), Goodman &
APPELLEE: Jacobs LLP, New York, New York.

FOR DEFENDANT-CROSS ROBERT J. KELLY (Kevin T.
DEFENDANT-CROSS CLAIMANT- Coughlin, on the brief), Coughlin
COUNTER CLAIMANT-APPELLEE: Duffy LLP, Morristown, New Jersey.

Appeal from the United States District Court for the

Southern District of New York (Forrest, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

Plaintiff-counter defendant-appellant First Advantage

Litigation Consulting, LLC ("First Advantage") appeals from a

judgment of the United States District Court for the Southern

District of New York (Forrest, J.), entered August 23, 2012

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pursuant to its memorandum and order entered August 21, 2012,

denying summary judgment for First Advantage and granting summary

judgment in favor of the insurers. The principal issue was

whether any of the insurers -- defendant-cross defendant-appellee

American International Specialty Lines Insurance Company

("AISLIC"), defendant-cross claimant-cross defendant-appellee

Federal Insurance Company ("Federal"), and defendant-cross

defendant-cross claimant-counter claimant-appellee Zurich

American Insurance Company ("Zurich") -- was obligated to defend

and indemnify First Advantage in connection with a defamation

suit brought against it in New Jersey state court.1 We assume

the parties' familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

We review de novo a district court's grant of summary

judgment, Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101

(2d Cir. 2010), as well as its interpretation of contracts,

including insurance agreements, Ment Bros. Iron Works Co. v.

Interstate Fire & Cas. Co., 702 F.3d 118, 121 (2d Cir. 2012).

After an independent review of the record, we conclude that

AISLIC, Federal, and Zurich were entitled to summary judgment for

substantially the reasons set forth by the district court in its

thorough memorandum and order. We add only the following.

1
The district court's ruling as to defendant-cross
defendant Tudor Insurance Company is not the subject of this
appeal.

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 First, as First Advantage conceded at oral argument,

all of the statements found to be defamatory by the jury were

first published, in form or substance, on October 23, 2002, prior

to the April 30, 2003 retroactive date of the AISLIC policy and

the 2005-2006 policy period of the Zurich policy. Hence, the

statements fell within the policies' prior acts exclusion and

prior publication exclusion, respectively.

Second, the insurers do not have a continuing duty to

defend First Advantage through the appeal in the defamation

action. The district court correctly concluded as a matter of

law that, given the verdict in the defamation action, there is no

basis on which the insurers will be obligated to indemnify First

Advantage, thereby relieving the insurers of the duty to defend

as of the date of the district court's ruling. See Hugo Boss

Fashions, Inc. v. Fed. Ins. Co, 252 F.3d 608, 622 (2d Cir. 2001)

(under New York law, insurer's duty to defend ends as of date of

court's declaratory judgment); Buss v. Superior Court, 16 Cal.

4th 35, 56 n.18 (1997) (collecting cases that, under California

law, provide insurer's duty to defend ends as of date of court

judgment). We need not, and do not, address the effect of this

ruling on the insurers' duty to defend if the defamation action

is remanded for a new trial.

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 We have considered all of First Advantage's remaining

arguments and conclude they are without merit. Accordingly, the

judgment of the district court is AFFIRMED.

FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk

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