United States District Court, E.D. Michigan, Southern Division
ALTERRA EXCESS & SURPLUS INSURANCE CO., Plaintiff/Counter-Defendant,
EXCEL TITLE AGENCY, LLC, EXCEL ESCROW SERVICES, LLC, and JANEL CHIPMAN, Defendants, and WESTERN AMERICAN PROPERTIES, INC., Defendant/Counter-Plaintiff.
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT (DOCUMENT NO. 50)
STEPHEN J. MURPHY, III United States District Judge
present matter arises from an insurance coverage dispute.
Before the Court is Plaintiff Alterra-Excess & Surplus
Insurance Company's ("Alterra") motion for
summary judgment, and it is opposed by Defendant Western
American Properties, Inc. ("WAP"). For the
following reasons, the Court will grant the motion.
Factual and Procedural Background
brought a separate action in the Court against Defendants
Excel Escrow Services, LLC ("EES") and Excel Title
Agency ("ETA"), ETA's owner Janel Chipman
("Chipman"), Metro Equity Group, LLC
("MEG"), and MEG's owner Corey Howard
("Howard"). Case No. 2:10-cv-14207 ("WAP
II"). WAP II arose from a real estate
purchase agreement ("Agreement") between WAP and
MEG, pursuant to which MEG would acquire real estate
properties and sell them to WAP for 50% of their fair market
value. See Agreement, ECF No. 50-1. Under the
Agreement, WAP would deposit 10% of the total amount in
escrow with ETA for use as earnest money deposits toward the
purchases. Id. Other investors entered into similar
agreements with MEG, including Hanover Exchange
("Hanover"), Lincoln Properties of Ruston, LLC
("Lincoln"), and Mt. Tai Asset Management
Corporation ("Mt. Tai"). See ECF Nos.
50-2, 50-3, 50-4.
WAP's funds were allegedly transferred - without
WAP's knowledge or consent - from ETA to EES, and then
from EES to MEG, WAP's president James Perley
("Perley") e-mailed Howard, Chipman, and others
demanding the escrowed funds be returned:
I want you to know that unless suitable inventory or funds
are returned by October 22, 2009, I will take all action
available against you. There will be no extensions on the 90
days; you have to either deliver the suitable inventory or
the money owed to me. This is the remaining deposit of $374,
900 held by Excel Title and Escrow, and my money that was
diverted to you outside of my instructions and direction of
$649, 800 on one occasion, and $536, 446 on another separate
occasion, by both Excel Title and Escrow, Janel Chipman, and
Outlook Escrow, Karen Gardner. Sun [sic] of the amount owed
is $1, 561, 146. If this does not happen by October 22, 2009,
I will begin to proceed with all civil and criminal action,
both state and federal against you, Metro Equity Group, . . .
Excel Title and Escrow, Janel Chipman, . . . Outlook Escrow,
and Karen Gardner among others.
E-mail, ECF No. 13. Perley sent the e-mail on July 28, 2009.
October 20, 2010, WAP filed the WAP II complaint,
alleging breach of agreement, breach of contract, negligence,
breach of duty, and conversion. See WAP II Compl.,
ECF No. 50-25. Before WAP initiated WAP II, each
individual investor had filed a lawsuit in the Eastern
District of Michigan against MEG and Howard that contained
similar allegations. Compare Complaints, Case Nos.
2:08-cv-14791 (filed 11/14/08), 2:08-cv-14897 (filed
11/23/08), and 2:09-cv-10685 (filed 2/24/2009) with
Case No. 2:10-cv-14207 (filed 10/20/2010). On November 12,
2012, the Court entered judgment in WAP's favor and
against EES and ETA, jointly and severally, in the amount of
$1, 546, 986 plus post-judgment interest. Judgment, No.
2:10-cv-14207, ECF No. 33.
issued a Title Agents, Abstractors and Escrow Agents
Professional Liability Insurance Policy ("the
Policy") to ETA that addressed amounts relevant to the
WAP II case up to $1, 000, 000. See Policy,
ECF No. 50-33. A writ of garnishment issued against Alterra
to collect on the WAP II judgment; Alterra filed a
motion to dismiss it, and the Court denied the motion without
prejudice to resolution of the instant case. See
Docket, No. 2:10-cv-14207, ECF Nos. 36, 38, 44. A month
later, Alterra filed the instant complaint for a declaratory
judgment that the Policy should be rescinded and that it had
no duty to indemnify ETA or any other party for the WAP
II judgment. Compl., No. 2:13-cv-11672, ECF No. 1. WAP
filed counterclaims for breach of contract and declaratory
judgment, and the Court dismissed the breach of contract
counterclaim on January 21, 2014. ECF Nos. 7, 31.
protracted discovery period followed and included numerous
disputes, two stipulated scheduling extensions, and one
Court-ordered extension that set discovery and dispositive
motion deadlines at October 15, 2015 and November 15, 2015,
respectively, along with disallowance of any further
extensions. See ECF No. 40. Alterra filed the
instant motion on November 15, 2015, but discovery disputes
continued into and through June 2016. In an order resolving
the discovery disputes, the Court gave Alterra an opportunity
to supplement its summary judgment motion by August 26, 2016.
See Order, ECF No. 64. Having received no additional
briefing, the Court will now address the motion.
Policy provides "claims-made" coverage that - in
contrast to occurrence coverage - indemnifies an insured for
any claims made against him during the policy period, subject
to certain restrictions. The Policy period ran from April 10,
2010 to April 10, 2011, and the "Retroactive Date"
was set at February 15, 2006. Policy 1, ECF No. 50-33. After
the Policy expired, Alterra renewed the policy for April 10,
2011 to April 10, 2012. Renewal, ECF No. 53-4. ETA tendered
the WAP II complaint to Alterra in an e-mail dated
April 4, 2011. E-mail, ECF No. 53-5. The next day, Alterra
acknowledged receipt and issued a reservation of rights
letter. Letter, ECF No. 53-6. The relevant provisions of the
Policy and Application for the Policy are provided below.
In consideration of payment of the premium, and in reliance
upon the statements made in the Application and its
attachments and any materials submitted therewith, all of
which are made a part hereof, and subject to the Declarations
and all the terms and conditions of this Policy, including
any endorsement hereto, we agree with you as follows . . .
Section I. 1. a. ("Insuring Clause"):
We shall pay on behalf of the "Insured" those sums
in excess of the deductible that the "Insured"
becomes legally obligated to pay as "Damages" and
"Claims Expenses" as a result of a
"Claim" first made against the "Insured"
and reported to us in writing during the "Policy
Period" or "Extended Reporting Period" by
reason of a "Wrongful Act" in the performance of or
failure to perform "Professional Services" by the
"Insured" or by any other person or entity for whom
the "Insured" is legally liable. The "Wrongful
Acts" must have been committed on or subsequent to the
"Retroactive Date" specified in the Declarations
and before the end of the "Policy Period".
Section II. ("Definitions"):
B. "Claim" means a written demand for monetary
damages arising out of or resulting from the performance or
failure to perform 'Professional Services.'"
I. "Professional Services" means only those
services performed by any "Insured" for others for
a fee in any of the following ...