Jason's Enterprises v. General Acc Ins Co

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JASON'S ENTERPRISES, INCORPORATED,
d/b/a Jason's Furniture Center,
Plaintiff-Appellant,

v.

GENERAL ACCIDENT INSURANCE
No. 95-2553
COMPANY OF AMERICA, d/b/a General
Accident Fire & Life Assurance
Corporation, P.L.C., d/b/a General
Accident Insurance,
Defendant-Appellee.

JASON'S ENTERPRISES, INCORPORATED,
d/b/a Jason's Furniture Center,
Plaintiff-Appellee,

v.

GENERAL ACCIDENT INSURANCE
No. 95-2554
COMPANY OF AMERICA, d/b/a General
Accident Fire & Life Assurance
Corporation, P.L.C., d/b/a General
Accident Insurance,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Chief District Judge.
(CA-94-1489-A)

Argued: June 3, 1996

Decided: June 25, 1996
Before RUSSELL, HALL, and LUTTIG, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: A. Andrew Giangreco, Fairfax, Virginia, for Appellant.
Tina Lynn Snee, Deborah Aileen Lisker, SLENKER, BRANDT,
JENNINGS & JOHNSTON, Merrifield, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Jason's Enterprises, Inc. ("Jason's Enterprises") appeals the district
court's order entering judgment upon jury verdict in favor of General
Accident Insurance Company of America ("GAI") on Jason's Enter-
prises' claims seeking damages for GAI's rescission for material mis-
representation of a policy of business owner's insurance. Jason's
Enterprises contends, inter alia, that GAI was estopped from defend-
ing its decision to void the policy with any reason not specifically
enumerated in its initial letter notifying Jason's Enterprises that the
policy was void for material misrepresentation. We reject this argu-
ment because the additional items of misrepresentation were timely
disclosed and Jason's Enterprises suffered no prejudice.

I.

Taiser Ramamni owned and operated furniture stores in Maryland
and Northern Virginia. In 1988, Taiser Ramamni opened his first

2
store in Waldorf, Maryland, which was operated by Jason's Furniture
Center, Inc., a corporation owned by Taiser. His brother, Jamal
Ramamni, co-owned and managed the Waldorf store. Taiser
Ramamni also opened a furniture store in Glen Burnie, Maryland in
1988, which was owned by another of Taiser's corporate identities--
Jason's International Service. In 1990, Taiser Ramamni opened a
third store in Virginia, which was operated in Manasses under the
trade name Jason's Furniture Center by Jason's Enterprises, Inc., a
third corporation owned by Taiser.

In May 1992, Taiser Ramamni, on behalf of Jason's Enterprises,
Inc., purchased a business owner's insurance policy from GAI for the
Virginia store. In January 1993, the Virginia store burned under suspi-
cious circumstances, and the local police considered Taiser Ramamni
an arson suspect.1 GAI independently investigated the loss, and dis-
covered that Jason's Enterprises had made material misrepresenta-
tions on the insurance application. Specifically, GAI discovered that
on March 3, 1992, the Waldorf store also sustained a fire loss under
suspicious circumstances, and the police suspected Jamal Ramamni of
arson. In the GAI insurance application for the Virginia store, Taiser
Ramamni averred that Jason's Enterprises, Inc. had not sustained a
previous loss. Because of the closely-held nature of both Jason's
Enterprises and Jason's Furniture Center, Inc., GAI considered their
corporate identities to be virtually identical, and Taiser Ramamni's
statement that no previous loss was sustained to be a misrepresenta-
tion.

For the same reason, GAI also considered Jason's Enterprises to
have made a material misrepresentation when it averred that no previ-
ous insurance policies were cancelled or non-renewed. GAI discov-
ered that State Farm provided a policy of business insurance for the
Waldorf store. Jason's Furniture Center, Inc. had filed a $400,000
claim for losses sustained in the March 1992 fire at the Waldorf store,
which State Farm settled for $25,000. Because of the large discrep-
ancy between the claim and the settlement amount, GAI considered
this equivalent to a cancellation of that policy. Hence, GAI considered
_________________________________________________________________
1 The police investigation was inconclusive as to the source of the fire
except that it was of suspicious origin.

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Taiser Ramamni's statement that no previous policy was cancelled to
be another misrepresentation.

On April 23, 1993, GAI notified Jason's Enterprises by letter that
it was voiding the insurance policy for material misrepresentation.
GAI stated that it would not have entered into the contract for insur-
ance if it had known of the previous loss to the Waldorf store. Jason's
Enterprises thereafter filed the present lawsuit contending, inter alia,
that GAI breached the insurance contract.

During discovery, GAI disclosed three more misrepresentations
Jason's Enterprises had made in the application for insurance.2 These
additional instances were disclosed through answers to interrogato-
ries. At trial, GAI defended Jason's Enterprises' lawsuit with all
instances of misrepresentation. The jury returned a verdict in favor of
GAI. This appeal followed.

II.

Jason's Enterprises argues on appeal, as it did below, two grounds
why GAI should have been barred from defending this lawsuit with
any other allegations of misrepresentation not specifically enumerated
in GAI's April 23 letter voiding the policy. Jason's Enterprises con-
tends that under the Virginia Insurance Code, insurers are limited in
their defense of a decision to void a policy by the specific reasons
stated in the initial written notice to the insured. Alternatively, Jason's
Enterprises asserts that principles of the equitable doctrine of estoppel
barred GAI from arguing additional instances of misrepresentation.
_________________________________________________________________
2 Although not completely clear from the record, it appears the addi-
tional instances of alleged misrepresentation were the following state-
ments that Jason's Enterprises: (1) does not own or operate any other
business; (2) does not own or operate any other business not covered by
this insurance policy; (3) has been in business for 15 years.

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A.

The Virginia Insurance Code provides in relevant part:

No cancellation or refusal to renew by an insurer of a policy
of insurance as defined in . . . § 38.2-118 insuring a business
entity . . . shall be effective unless the insurer delivers or
mails to the named insured . . . written notice of the cancel-
lation or refusal to renew. Such notice shall:

***

3. State the specific reason or reasons of the
insurer for cancellation or refusal to renew;

Va. Code Ann. § 38.2-231 (Michie 1994). Extrapolating from this
language, Jason's Enterprises contends that because a policy cancella-
tion is effective only if the written notice states the specific reasons
for the cancellation, then logically GAI could defend its decision to
void the policy only with reference to those specific reasons.

We do not think it is at all clear that GAI "cancelled" the policy
within the meaning of § 38.2-231.3 There is a fundamental distinction
between a decision to cancel a policy and a decision to void a policy
ab initio. In the case of the former, termination of coverage is pro-
spective only. In other words, the insured remains covered for losses
occurring prior to the effective date of the cancellation. In contrast,
when an insurer voids a policy ab initio, as in the present case, the
termination of coverage is total. The policy is rescinded and the pre-
mium returned under the theory that the parties never had a sufficient
meeting of the minds to form a legally-binding contract:

To rescind a contract is not merely to terminate it, but to
abrogate and undo it from the beginning; that is, not merely
to release the parties from further obligation to each other
in respect to the subject of the contract and restore the par-
_________________________________________________________________
3 Jason's Enterprises does not argue that voiding the policy amounted
to a "refusal to renew" within the meaning of§ 38.2-231.

5
 ties to the relative positions which they would have occu-
pied if no such contract had ever been made. Rescission
necessarily involves a repudiation of the contract and a
refusal of the moving party to be further bound to it. But this
by itself would constitute no more than a breach of the con-
tract or a refusal of performance, while the idea of rescission
involves the additional and distinguishing element of a res-
toration of the status quo. . . . 1 Black on Rescission and
Cancellation, § 1.

Wall v. Zynda, 278 N.W. 66, 68 (Mich. 1938) (internal quotations
omitted). Such is the case when an insurer voids a policy ab initio for
material misrepresentation. The insurer voids the policy because, had
it known the truth, it would never have issued the policy in the first
instance, or it would have issued the policy pursuant to different
terms.

The plain language of § 38.2-231 does not reveal whether the Vir-
ginia General Assembly intended use of the word"cancellation" to
also encompass "rescissions" or "voidings." The Virginia Insurance
Code does not define the term "cancellation," and no published
authority in Virginia has interpreted § 38.2-231. But, the requirements
of § 38.2-231 itself intimate an answer. Apart from requiring the
insurer to enumerate specific reasons for cancelling the policy, § 38.2-
231 also requires that the insurer state in its written notice the date
upon which the cancellation is effective. Under§ 38.2-231(A)(2), that
date cannot be less than forty-five days after the delivery or mailing
of the notice of cancellation. Thus, it appears that the notice require-
ment of § 38.2-231 does not apply to a rescission, which by its very
nature is effective immediately and applies retroactively to discharge
all obligations past and future.

Nonetheless, in recognition of the fact that the terms "cancelled,"
"rescinded," and "void" are often used synonymously in the insurance
context, see Van Horn v. Atlantic Mut. Ins. Co. , 641 A.2d 195, 203
n.6 (Md. 1994), we will refrain from further attempting to resolve this
question of Virginia state law. We hold instead, as did the district
court, that even if § 38.2-231 applies to rescissions or voidings, GAI
adequately satisfied the statutory requirements. Section 38.2-231 does
not state when the notice must be given; it merely requires that the

6
notice be written and that it specify the reasons for the cancellation.
We believe GAI satisfied this notice requirement by detailing the
additional instances of alleged misrepresentation in answers to inter-
rogatories during discovery.

The district court appears to have added an additional requirement
when it further found that it was uncontroverted that GAI could not
have disclosed the additional instances of misrepresentation in its
April 23 letter because it was not yet aware of their existence. We
agree with Jason's Enterprises that this finding is not supported by the
record. At oral argument before this court, GAI's counsel inexplica-
bly averred that GAI was not on notice of the additional instances
until after April 23; however, Thomas Tonks, GAI's own witness and
the author of the April 23 letter, clearly testified at trial to the con-
trary. Tonks stated he was aware of all instances of misrepresentation
at the time he prepared the letter, but that he only included two
because they were independently sufficient to support the decision to
void the policy. (J.A. at 157, 161, 163-64).

Any error in the district court's finding, however, was harmless
because we do not believe the timing of GAI's knowledge to be rele-
vant. As previously stated, GAI gave written notice of the additional
reasons prior to trial, which we believe is all§ 38.2-231 requires.
Accordingly, we reject Jason's Enterprises' argument based upon the
Virginia Insurance Code.

B.

We similarly reject Jason's Enterprises' argument grounded on
estoppel. To invoke the equitable doctrine of estoppel, Jason's Enter-
prises must show its prejudicial reliance on "some act, conduct, or
non-action of the insurer." Western World Ins. Co. v. Hartford Mut.
Ins. Co., 784 F.2d 558, 563 (4th Cir. 1986). In other words, Jason's
Enterprises must establish that it relied to its detriment on a belief that
GAI would not assert further instances of misrepresentations. Such
detrimental reliance cannot typically be established where the insurer
"fairly informs [the insured] of its position and gives timely notice."
Norman v. Insurance Co. of North America, 239 S.E.2d 902, 907 (Va.
1978). Because we believe that GAI fairly and timely informed
Jason's Enterprises in advance of trial of its intent to rely on addi-

7
tional instances of misrepresentations, GAI was not equitably estop-
ped from asserting those instances in its defense.

III.

We turn next to Jason's Enterprises' contention that the district
court erred in ruling that forty-one documents sought from GAI were
privileged from disclosure under the work product doctrine, and in
granting GAI's motion to quash a subpoena served on its investiga-
tors.

A.

During discovery, GAI claimed that forty-one of the numerous
documents requested by Jason's Enterprises were protected from dis-
closure by the work product doctrine. Although not part of the joint
appendix before us, GAI submitted these documents under seal for an
in camera review by the district court. 4 The court subsequently denied
Jason's Enterprises' motion to compel discovery.

The work product doctrine serves to protect from disclosure mate-
rial prepared by an adversary's counsel "`with an eye toward litiga-
tion.'" Commonwealth v. Edwards, 370 S.E.2d 296, 302 (Va. 1988)
(quoting Hickman v. Taylor, 329 U.S. 495, 511 (1947)). The privilege
encompasses such things as "`interviews, statements, memoranda,
correspondence, briefs, mental impressions, [and] personal beliefs.'"
Id. We review the district court's decision concerning application of
this evidentiary privilege for abuse of discretion. See In re Grand Jury
Subpoena, 884 F.2d 124, 128 (4th Cir. 1989).

Jason's Enterprises attacks the district court's denial of its motion
to compel discovery, contending that the district court erred in deter-
mining that the documents at issue were prepared in anticipation of
litigation. According to Jason's Enterprises, every document prepared
_________________________________________________________________
4 GAI contends the documents contain such items as: an assessment
and evaluation determining the case's worth should it proceed to trial;
opinions requested of counsel; notes of a criminal investigation against
Jamal Ramamni; and opinions of an investigator hired by GAI discussing
progress in the criminal investigation against Jamal Ramamni.

8
by an insurance company is in some respects prepared in anticipation
of litigation. Hence, Jason's Enterprises contends insurance compa-
nies should be subjected to a more narrow construction of the privi-
lege, and GAI should at least be required to disclose those materials
prepared prior to the time litigation became a realistic possibility.

In effect, Jason's Enterprises asks this court to hold that litigation
only became a realistic possibility on April 23, 1993, when GAI sent
the letter voiding the policy. By this logic, any documents prepared
prior to that date cannot be privileged as work product. We reject this
contention. Obviously, GAI was investigating the fire loss prior to
April 23, and it likely formed an opinion about Jason's Enterprises'
misrepresentations and the possibilities of litigation prior to that date.
We see no merit to a bright-line holding which would render only
those documents prepared after a claim is denied or a policy voided
subject to the work product privilege. Hence, we reject this claim.

Jason's Enterprises also contends that even if the documents were
prepared in anticipation of litigation, it is entitled to their discovery
under Fed. R. Civ. P. 26(b)(3), which provides that a party may obtain
discovery of documents prepared by an adversary, or an adversary's
representatives, in anticipation of litigation upon a showing of sub-
stantial need for the documents and an inability to obtain their sub-
stantial equivalent without undue hardship. We reject this assignment
of error because Jason's Enterprises has utterly failed to articulate any
reason to believe that it had a substantial need for the documents, or
that it would be unable to obtain their equivalent without undue hard-
ship. We therefore hold that the district court did not abuse its discre-
tion in protecting these documents from disclosure after examining
them in camera.

B.

On a related note, Jason's Enterprises also challenges the district
court's order granting GAI's motion to quash a subpoena seeking
some of the materials determined to be work product. GAI hired the
firm of Cotter, Neimeyer & Lynch ("CNL") to assist with investiga-
tion of the claim. As part of its investigation, CNL prepared docu-
ments for GAI. Unsuccessful in obtaining those documents from GAI,
Jason's Enterprises served a subpoena directly on CNL. The district

9
court granted GAI's subsequent motion to quash the subpoena. How-
ever, because the subpoena was served on the investigative firm hired
by GAI, rather than on GAI itself, Jason's Enterprises contends GAI
lacked standing to move to quash the subpoena.

We disagree. The work product privilege applies to protect docu-
ments prepared in anticipation of litigation "by or for another party
or by or for that other party's representative (including the other
party's attorney, consultant, surety, indemnitor, insurer, or agent)."
Fed. R. Civ. P. 26(b)(3). Because CNL was an agent or consultant to
GAI, CNL's documents generated pursuant to that relationship clearly
fall within the scope of protection contemplated by Rule 26. Accord-
ingly, GAI was entitled to assert the privilege over documents pre-
pared for it by CNL, which were in CNL's possession. It follows,
therefore, that GAI had standing to move to quash the subpoena that
sought those documents directly from CNL.

IV.

Jason's Enterprises next contends the district court abused its dis-
cretion by overruling its motion for a mistrial and permitting GAI to
introduce evidence that the police consider both Taiser and Jamal
Ramamni to be arson suspects in fires at the Virginia and Waldorf
stores, respectively. According to Jason's Enterprises, this evidence
was irrelevant to GAI's material misrepresentation defense and it was
highly prejudicial.

One of the reasons cited by GAI for its decision to void the policy
ab initio was that Taiser Ramamni failed to disclose the prior fire loss
at the Waldorf store. Accordingly, evidence of the existence of that
prior loss was certainly relevant to GAI's material misrepresentation
defense. While some district court judges may have limited the evi-
dence to the mere fact of the loss, we do not think it was an abuse
of discretion for the district court here to allow introduction of foun-
dation or background evidence concerning the circumstances of that
fire.

However, we are not similarly persuaded that the district court
acted within the permissible scope of its discretion when it admitted
evidence that the fire at the Virginia store was of suspicious origin,

10
or that Taiser Ramamni was an arson suspect. This evidence was not
probative of any of the grounds upon which GAI relied to support its
material misrepresentation defense. Recognizing this, GAI asserts that
it was entitled to introduce the arson evidence to rebut Jason's Enter-
prises' claim for attorneys fees under Va. Code Ann.§ 38.2-209(A)
(Michie 1994), which required establishing that GAI acted in bad
faith when it voided the policy. According to GAI, it was entitled to
introduce evidence that it acted in good faith, which encompassed
introduction of evidence of everything its investigation discovered
about Taiser Ramamni, including the suspicious nature of the fire and
that he was an arson suspect.

We disagree with GAI's reasoning. Because GAI specifically lim-
ited its decision to void the policy to the misrepresentations in the
insurance application, the district court should have similarly limited
the focus of the good faith inquiry to evidence concerning those mis-
representations. The fire at the Virginia store may have been the event
which precipitated GAI's discovery of the misrepresentations, but we
see nothing about the circumstances surrounding the fire that was rel-
evant to misrepresentations made eight months earlier.5

Nonetheless, to the extent the district court may have erred in this
regard, we believe that error was harmless. GAI introduced ample
evidence that Jason's Enterprises misrepresented, among other things,
that it had not sustained a prior loss, that it operated no other busi-
nesses, and that it had been in business fifteen years. We are satisfied
the jury reached its verdict with reference to the specific evidence
probative of GAI's misrepresentation defense.
_________________________________________________________________

5 We do not believe, however, that this evidence was as prejudicial as
Jason's Enterprises asserts. It is indisputable that the fire at the Virginia
store was of a suspicious origin and that the police suspect Taiser
Ramamni of arson. GAI could have elected to cancel coverage under the
policy on this ground and pursued that defense at trial, at which point the
arson evidence would clearly have been material and probative. That
GAI opted instead to void the policy for misrepresentation in the applica-
tion is all that prevented the arson evidence from being relevant.

11
V.

Lastly, Jason's Enterprises contends that the district court erred in
instructing the jury on misrepresentation. According to Jason's Enter-
prises, the district court was required to instruct the jury that GAI
could not void the insurance policy ab initio for misrepresentation
unless that misrepresentation was willful.

This argument is without merit. The Virginia Insurance Code pro-
vides that no statement in an application for insurance will bar recov-
ery unless the statement was material and untrue. Va. Code Ann.
§ 38.2-309 (Michie 1994). There is no statutory requirement that the
misrepresentation also be willful. The authorities cited by Jason's
Enterprises in support of its position involve insurance policies speci-
fying that only a "willful" misrepresentation will void the policy. See
Glens Falls Ins. Co. v. Long, 195 S.E.2d 887, 889 (Va. 1973) (lan-
guage in automobile insurance application provided that insurer could
reject application only if applicant willfully made incorrect or mis-
leading statements therein); Old Republic Life Ins. Co. v. Bales, 195
S.E.2d 854, 856 (Va. 1973) (stating that in the ordinary case, mere
proof of the misrepresentation is enough to void a policy, but in this
case the insurer must establish that misrepresentation was done know-
ingly because signature recital on application stated that the answers
therein were correct to the best of applicant's knowledge). In contrast,
the insurance policy at issue here did not specify that only willful mis-
representations would void the policy. Accordingly, we reject Jason's
Enterprises' argument.

VI.

For the foregoing reasons, we affirm the district court's order
entering judgment upon the jury's verdict. By reaching this holding
we dispense with the need to examine GAI's cross-appeal challenging
the district court's decision to allow the issue of bad faith to be
decided by the jury.

AFFIRMED

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