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Houston Specialty Insurance Co. v. Titleworks of Southwest Florida, Inc.

United States District Court, M.D. Florida, Fort Myers Division

June 15, 2017




         This matter comes before the Court on review of the four pending motions for summary judgment (Docs. ## 114, 118, 133, 135) . For the reasons that follow, the Court denies the summary judgment motions as moot without prejudice to refile and, in the interest of justice, affords Plaintiff the opportunity to file a Third Amended Complaint, subject to the limitations set forth below.


         This is a declaratory judgment action arising out of a dispute over a "prior knowledge" exclusion contained in a professional liability insurance policy (the Policy) (Doc. #51-1) that Plaintiff Houston Specialty Insurance Company (Houston) issued to Defendant Titleworks of Southwest Florida, Inc. (Titleworks) in 2014. Under the Policy, Houston agrees to defend Titleworks against, and indemnify Titleworks for, "Claims" arising out of “Wrongful Acts”[1] occurring between August 2, 2005 and August 2, 2015.[2] (Id. p. 7.) Houston's obligations are not triggered, however, if Titleworks had “knowledge of the actual or alleged Wrongful Act prior to the inception date of th[e] Policy” - August 2, 2014. (Id.) Instead, the Policy relieves Houston's duty to defend against (and indemnify for) any Claim “arising out of, based upon, relating to, or attributable to” a Wrongful Act about which Titleworks “had knowledge prior to the Policy Period[, ] if [Titleworks] had a reasonable basis to believe that such Wrongful Act could give rise to a Claim.” (Id. pp. 10-11.)

         A “Claim” against Titleworks occurred on or around August 14, 2014, when Michael Rich (Titleworks' President and agent) received a copy of the complaint (Doc. #51-2) that Defendant Mikhail Trakhtenberg planned to file against Titleworks in state court (the Underlying Action) accusing Titleworks of negligent failure to disclose title defects and breach of fiduciary duty. According to the complaint - which was filed on August 22, 2014 - Mr. Trakhtenberg engaged Titleworks to perform a title search on, and act as his closing agent for, a piece of real property (the Property) Mr. Trakhtenberg was interested in purchasing. Titleworks failed to uncover (and therefore did not disclose) defects in the Property's title - namely, multiple judgment liens.[3]

Titleworks tendered Houston with a copy of Mr. Trakhtenberg's complaint on or about August 29, 2014. Houston has been providing Titleworks with a defense in the Underlying Action under a reservation of rights but now seeks declarations from this Court, pursuant to 28 U.S.C. § 2201, that (i) “that there is no coverage for the claims alleged against Titleworks in the Underlying Action because Titleworks had actual knowledge of the Claim prior to the Policy Inception date, ” and (ii) more generally, that it has “no obligation to continue to defend Titleworks in the Underlying Action.”[4] (Doc. #51, ad damnum clause.)

         All parties now move for summary judgment on Houston's declaratory judgment claim. Houston contends that, prior to executing the Policy, Titleworks' knew of a Wrongful Act - the missed liens - and reasonably believed such Act could give rise to a claim. Accordingly, there remains no genuine issue of fact concerning Houston's lack of contractual obligation to defend or indemnify Titleworks.

         In seeking summary judgment in their own favor, Defendants have primarily raised grounds of waiver and estoppel. As to waiver, Defendants contend that the operative Second Amended Complaint never alleges that Titleworks had “prior knowledge of a Wrongful Act, ” as might excuse Houston's obligations; rather, the Complaint alleges only that Titleworks had “prior knowledge of a Claim.”[5] Regarding estoppel, Defendants assert that Houston's “Wrongful Act” theory was already “judicially foreclosed” by way of the undersigned's December 6, 2016 Opinion and Order (the December 6 Order) (Doc. #113) adopting the Magistrate Judge's Report (Doc. #108) recommending denial of Houston's Motion for Leave to File a Third Amended Complaint (Doc. #99). Defendants also argue that, even if Houston can pursue a “Wrongful Act” theory, genuine issues of material fact prevent summary judgment on whether the exclusion actually applies.

         II. A. Waiver

         It is true that the operative Second Amended Complaint (Doc. #51) does not expressly allege Titleworks had “prior knowledge of a Wrongful Act.” But these specific words were not needed for Houston to pursue such a theory. Even in the Twombly/Iqbal era, “[f]ederal pleading rules call [only] for ‘a short and plain statement of the claim showing that the pleader is entitled to relief, '; they do not countenance [penalizing a plaintiff] for imperfect statement of the legal theory supporting the claim asserted.” Johnson v. City of Shelby, 135 S.Ct. 346, 346 (2014) (per curiam) (quoting Fed.R.Civ.P. 8(a)(2)). In other words, the pleading obligation Rule 8 imposes is one of including sufficient facts to support a claim, not of alleging all possible legal theories underlying that claim. Brisk v. Shoreline Found., Inc., 654 F.App'x 415, 417 (11th Cir. 2016) (per curiam) (“A complaint need not specify in detail the precise theory giving rise to recovery.” (citing Sams v. United Food & Comm'l Workers Int'l Union, 866 F.2d 1380, 1384 (11th Cir. 1989))). All that Rule 8 requires “is that the defendant be on notice as to the claim being asserted against him and the grounds on which it rests.” Id.; see also Hamilton v. Allen-Bradley Co., Inc., 244 F.3d 819, 825 (11th Cir. 2001) (observing that a complaint need only “outline[] sufficient facts to put [the defendant] on notice of [a particular] claim, ” not contain any “specific words”).

         The allegations contained in Houston's Second Amended Complaint provide sufficient notice of both Houston's claim (declaratory judgment, based on a lack of contractual obligation to defend or indemnify Titleworks/Westcor pursuant to the Policy's “prior knowledge” exclusion[6]) and the ground on which that claim rests (a July 2014 phone call between Mr. Trakhtenberg and Mr. Rich regarding the missed encumbrances).[7] Accordingly, the Court rejects Defendants' contention that the “Wrongful Act” theory is not appropriately raised on summary judgment. See Johnson, 135 S.Ct. at 346-47 (summarily reversing entry of summary judgment against plaintiffs whose complaint did not expressly invoke Section 1983, where complaint adequately alleged factual basis for Section 1983 claim); Hamilton, 244 F.3d at 823-25 (rejecting defendant's waiver argument and reversing grant of summary judgment where “complaint outlined sufficient facts to put [defendants] on notice” that plaintiff was asserting claims for “wrongful termination” and “breach of fiduciary duty”); see also Hatmaker v. Mem'l Med. Ctr., 619 F.3d 741, 743 (7th Cir. 2010) (finding “mistaken” district court's holding that plaintiff's failure to raise “participation” theory of retaliation waived her right to pursue that theory, since complaint did adequately raise “opposition” theory of retaliation).

         B. Estoppel

         The Court also rejects Defendants' argument that Houston's “Wrongful Act” litigation theory was “judicially foreclosed” when Houston was denied leave to amend. The two issues squarely before the undersigned when Houston sought to amend for a third time -and those decided by the December 6 Order - were (1) whether Houston's motion to amend was timely, and (2) if not, whether Houston had nevertheless established good cause sufficient to outweigh the potential for prejudice posed to Defendants by allowing amendment to occur on the eve of the dispositive-motion deadline and only a few months out from trial. The Magistrate Judge recommended answering both of these questions in the negative and denying leave to amend, and the undersigned agreed with, and affirmed, that recommendation.[8]

         Whether - based on the arguments and authority raised in Houston's Motion for Leave to Amend and Defendants' Responses thereto - Houston should have been afforded leave to amend is a different question from the one now before this Court: whether Houston may pursue a “prior knowledge of a Wrongful Act” theory of relief for declaratory judgment, despite the operative ...

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