American & Foreign Ins. v. Colonial Mortgage Co.

CLARK, Circuit Judge:

U.S. Fire Insurance Company and International Insurance Company (collectively referred to as the “umbrella carriers”) brought this declaratory judgment action against Colonial Mortgage Company (“Colonial”) to determine the extent of the umbrella carriers’ contractual obligation to Colonial. Colonial argued that it was owed coverage by the umbrella carriers in an underlying lawsuit brought against Colonial by Richard and Emily Ford. The district court granted summary judgment in favor of the umbrella carriers, holding that Colonial was not entitled to coverage in the underlying action because of “professional service” liability exclusions contained in the umbrella policies.

For the reasons stated below, we affirm the district court’s grant of summary judgment.

I. FACTS

A. Conduct Underlying Jury Verdict against Colonial.

On January 16, 1987, Richard and Emily Ford entered into a contract to sell fifty-three acres of land to William Walls for $92,000. Walls applied for a loan in order to pay for the property. Colonial’s agent, Hilda Abney, told Walls and the Fords that Colonial would finance $80,000 of the purchase price at an interest rate of eight percent. Abney did not indicate that Walls would have to pay any discount points. On April 1, 1987, at the scheduled closing, Walls received the final documents and noticed that the interest rate had been changed to eight and one-half percent; he, therefore, refused to sign the documents until the matter could be corrected.

On April 2, 1987, the parties again met to close the deal. At this time, Colonial’s representative presented Mr. Walls with two options: Either Mr. Walls could obtain the loan from Colonial at eight percent and pay seven discount points or he could accept the loan at eight and one-half percent and pay four discount points. Walls opted for the latter, agreeing to eight and one-half percent and four discount points. Colonial then delivered a loan closing check for $29,911.31 to the law firm handling the closing. Upon closing, the law firm disbursed the funds, including $29,911.31 to the Fords.

Immediately following the closing, Colonial advised the closing law firm that it was stopping payment on the $80,000 check and that the firm should stop payment on its checks to the parties. As the basis for its action, Colonial alleged that Walls and the Fords had misrepresented matters on their loan application.

B. Jury Verdict.

Mr. Walls and the Fords subsequently filed separate suits charging Colonial with fraudulent misrepresentation, suppression of material facts, defamation, and interference with contract relations. At the trials, the Fords and Walls presented evidence that Colonial refused to make the loan when it determined that it could not sell the mortgage on the secondary market. Instead of admitting that it had made a mistake, Colonial informed the parties that it had denied the loan because of fraud and misrepresentation on the loan application. Evidence also was presented that, after the closing, Colonial misplaced portions of the loan file.

The jury returned a verdict for Walls for $1,700,000. In the Fords’ case against Colonial, the jury awarded the Fords $3,000,-000. Colonial then sought coverage from American and Foreign Insurance Company (“American”), Colonial’s primary insurance carrier, and from its excess coverage insurers, the umbrella carriers. Both excess coverage insurance policies contain a professional liability exclusion, which provides:

*1164MORTGAGE COMPANY PROFESSIONAL LIABILITY EXCLUSION

This policy does not apply to any professional liability arising out of the insured’s profession as a mortgage company.
“Professional liability” as used in this endorsement, means liability arising out of the insured’s profession as stated above and caused by the rendering or failure to render professional services for others, including professional services of any employee of the insured or of any person for whom the insured is legally liable.
All other terms and conditions of this policy remain unchanged.
******
PROFESSIONAL LIABILITY EXCLUSION
This policy does not apply to any professional liability claims arising out of any of the insured’s activities.
“Professional liability,” as used in this endorsement, means liability arising out of and caused by the rendering or failure to render professional services for others; including professional services of any employee of the insured or of any other person for whom the insured is legally liable.
All other terms and conditions of this policy remain unchanged.

C. District Court.

As grounds for their motions for summary judgment, the umbrella carriers contended that by policy definition and the exclusionary language in the professional liability exclusion, the claims made by Colonial relative to the verdicts in the Ford and Walls litigation were not covered by the policies. The district court granted the umbrella carriers’ motion for summary judgment. In so concluding, the court reasoned that

the circumstances involved in the Walls and Ford litigation fit squarely within the definition set forth in the policy’s professional liability exclusion. In the opinion of this court, the exclusion is not ambiguous and it applies to the present case.1

As to whether Colonial’s activities causing the plaintiffs “humiliation,” and “mental anguish” were included in the policies’ personal injury limitations,2 the court concluded that the personal injury limitation was not ambiguous, did not expand policy coverage, and could not be construed to override the professional liability exclusion. Therefore, pursuant to the unambiguous terms of the policies, the umbrella carriers had no legal duty to provide coverage in the underlying Walls and Ford cases.

II. DISCUSSION

Summary judgment is appropriate if “there is no genuine issue as to any material fact” and if “the moving party is entitled to a judgment as a matter of law.”3 Appellate review of a grant of summary judgment is plenary.4 Having viewed all evidence and factual inferences favorably to the nonmoving party,5 we then must determine if the district court correctly analyzed the substantive law to determine if a grant of summary judgment was proper as a *1165matter of law.6 Because this is a diversity case, Alabama law governs resolution of all substantive issues.7

The question presented is whether the umbrella carriers’ insurance policies exclude from coverage Colonial’s acts of fraud against Ford and the Walls. Because we hold, as a matter of Alabama law and public policy, that the umbrella carriers’ policies cannot extend coverage to the intentional and fraudulent acts of Colonial in its dealings with the Fords and Walls, we need not decide whether the district court correctly determined that Colonial’s acts were excluded from coverage because they arose out of “professional services” rendered as a mortgage company.

In the Fords’ suit against Colonial,8 the Fords alleged, in a three-count complaint, that the mortgage company had fraudulently suppressed material facts, had intentionally made false and defamatory statements, and had intentionally interfered with contractual relations between the Fords and Walls. The jury found that Colonial, in its dealings with Walls and the Fords, breached its contract under circumstances which constituted fraud.

The former fifth circuit, in an opinion binding on this court, has recognized that Alabama public policy prohibits insuring against intentional wrongs. In St. Paul Ins. Cos. v. Talladega Nursing Home, Inc.,9 the court considered the liability of an insurance company under Alabama law to indemnify and defend the insured in civil actions alleging slander, interference with business relations, and violations of the federal antitrust laws. In considering whether the insurance company had a duty to defend, the court summarized Alabama law as follows:

In Fidelity-Phenix Fire Ins. Co. v. Murphy, 226 Ala 226, 146 So. 387 (1933), the Alabama Supreme Court, in the context of the willful and deliberate destruction of the insured’s ship by the insured, held void as against public policy any insurance coverage protecting against “loss which [the insured] may purposely and willfully create.” Id. at 230, 146 So. at 390. In Pruet v. Dugger-Holmes & Assoc., 276 Ala. 403, 162 So.2d 613 (1964), this doctrine was extended to include a suit for intentional trespass. These two cases have been interpreted to hold that all contracts insuring against loss from intentional wrongs are void in Alabama as against public policy. See Industrial Sugars, Inc. v. Standard Accident Ins. Co., 338 F.2d 673, 676 (CA7, 1964); Thomason v. United States Fidelity & Guaranty Co., 248 F.2d 417, 420 (CA5, 1957) (Rives, J., dissenting).10

Based on its analysis of state law, the court reasoned that the crucial question under Alabama law was “whether the acts alleged in the underlying complaint constitute intentional wrongs.” 11

Alabama law, as the court in St. Paul noted, defines intentional wrongs in the context of insurance, as “including both intentionally causing injury and ‘intentionally doing some act which reasonable and ordinary prudence’ would indicate likely to result in injury.”12 The Fords in their *1166complaint alleged intentional acts committed by Colonial in an effort to rid itself of a note and mortgage it realized it could not sell in the secondary market. In the instant case, as in St. Paul, the elements of each of the underlying causes of action include either an intent to injure or the commission of acts reasonably likely to injure. We, therefore, hold that under Alabama law, the umbrella carriers had no duty to indemnify Colonial for intentional acts committed in the course of its negotiations with the Fords.

Neither can Colonial argue that the umbrella policies provide coverage to Colonial for its liability in the underlying lawsuits because the policies cover claims against the insured for “mental anguish” or “humiliation.” 13 Even if the umbrella carrier agreed to indemnify Colonial for intentional acts committed, “where public policy forbids a particular insurance contract, ‘public policy [also] forbids the accomplishment of the result by an estop-pel.’ ”14

Finally, as to the umbrella carrier’s liability for injury arising from Colonial’s rendering of “professional services,” the umbrella policies’ professional liability exclusions simply are not relevant to determining whether Colonial’s intentional acts of fraud against the Fords are insurable. As an instructive article on professional liability from the Practising Law Institute indicates, “[a] common—and easily anticipated—coverage problem arises when there are allegations of ‘wilful’ activity by the insured. Pursuant to statute ..., public policy or both, carriers are precluded from covering such acts.” 15

The Alabama courts also have recognized this distinction between an action alleging intentional acts and a malpractice action. In Correll v. Fireman’s Fund Insurance Companies,16 the court considered the coverage of a life underwriter’s professional liability policy. There, the professional liability was explicitly limited to claims made “by reason of any negligent act, error or omission committed or alleged to have been committed by the Insured.” 17 Because the complaint there alleged only “intentional acts of forgery, embezzlement, intentional or wanton conversion, breach of contract, tortious bad faith, breach of contract and outrageous conduct,” the court held that the professional liability policy did not insure against the acts alleged.18 Similarly, here, the professional liability exclusion does not determine the umbrella carrier’s liability for injury resulting from Colonial’s intentional acts. Rather, Alabama law and public policy dictate that the carrier has no duty to its insured to indemnify Colonial for intentional acts.

III. CONCLUSION

For the reasons stated above, we AFFIRM the district court’s grant of summary judgment in favor of International Insurance Company and U.S. Fire Insurance Company, the umbrella carriers.

. Memorandum Opinion, Civil Action No. 89-D-100-E, at 13-14 (March 26, 1990).

. The umbrella policies state generally:

The company agrees to pay on behalf of the insured the ultimate net loss in excess of the retained limit hereinafter stated, which the insured may sustain by reason of the liability imposed upon the insured by law, or assumed by the insured under contract, for:
(a) Bodily Injury Liability,
(b) Personal Injury Liability,
(c) Property Damage Liability, or
(d) Advertising Liability, arising out of an occurrence.
* * * * * *
"Bodily injury” means:
(a) sickness, disease, disability, shock, mental anguish and mental injury including death at any time resulting therefrom; ...

. Fed.R.Civ.P. 56(c).

. Livernois v. Medical Disposables, Inc., 837 F.2d 1018, 1021-22 (11th Cir.1988).

. Everett v. Napper, 833 F.2d 1507, 1510 (11th Cir.1987).

. Id.

. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

. Walls suit against Colonial settled after judgment for an amount within the primary coverage limits, and American, the primary carrier, paid the full amount. Because the verdict rendered in favor of the Fords was in excess of the primary coverage limits, it is this judgment from which Colonial seeks indemnity from the umbrella carriers.

. 606 F.2d 631 (5th Cir.1979).

. Id. at 633. In Burnham Shoes, Inc. v. West American Ins. Co., 504 So.2d 238, 241 n. 1 (Ala. 1987), the Alabama Supreme Court, referring to the former fifth circuit’s decision in St. Paul, stated:

We express no opinion here as to the correctness of the Fifth Circuit's conclusion that insurance contracts in which the insurer agrees to indemnify its insured for intentional acts violate the public policy of this state.

We adhere to the fifth circuit’s statement of Alabama law as binding on this court.

. Id. at 634.

. Id. (quoting Hartford Fire Ins. Co. v. Blakeney, 340 So.2d 754, 756 (Ala.1976); accord Transit Casualty Co. v. Snow, 584 F.2d 97, 99 (5th Cir.1978)).

. As set forth above, see supra note 2, the policy insures against liability for bodily injury or personal injury. "Bodily injury” includes "mental anguish." "Personal injury” means injury, "such as but not limited to libel, slander, defamation of character, ... or humilia-tion_"

. St. Paul, 606 F.2d at 634 n. 2 (quoting Northwestern Nat'l Casualty Co. v. McNulty, 307 F.2d 432, 442 (5th Cir.1962)).

. "Coverage Aspects of Claims Against Professionals: Plaintiffs Perspective," 303 PLI/Lit 39 (May 1, 1986) (PLI Order No. H4-4992).

. 505 So.2d 295 (Ala.1986).

. Id.

. Id. at 297; see also Lawson v. Cagle, 504 So.2d 226 (Ala.1987) (emphasizing distinction between legal malpractice action and fraud action).