Florida Lawyers Mutual Insurance v. West (In re West)
Florida Lawyers Mutual Insurance v. West (In re West)
Opinion of the Court
MEMORANDUM OPINION AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT
Florida Lawyers Mutual Insurance Company issued a malpractice policy in favor of John West, the Debtor in this bankruptcy case, which expressly excludes losses resulting from (among other things) dishonest or fraudulent acts'. Here, the Court previously found that $212,478 West owes Aleta Chrisman (as personal representative of her father’s estate) was non-dischargeable under Bankruptcy Code § 523(a)(2) and (4) because West, a lawyer who specializes in trusts and estates work, made fraudulent misrepresentations to Chrisman and abused his position as a
Background
Eagleton B. Chrisman and Irene Chris-man were married for more than fifty years. Together, they raised three children: Aleta Chrisman, Roger Chrisman, and Vera Chrisman Plescia. Eagleton and Irene spent much of their lives in New Jersey. But as they reached their golden years, they moved south to Sarasota, Florida. Having become a resident of a new state, Eagleton decided to review his estate plan. Knowing this, a close friend who was also an accountant, Ray Leich, referred Eagleton to a local attorney, John W. West, III. Over the following years, West assisted Eagleton with tax and estate planning. All told, West represented Ea-gleton for the better part of a decade.
The events of relevance here began in June 2005, when West and Eagleton met to amend Eagleton’s last will and testament and to update his living trust.
Two weeks later, Aleta, West, and West’s paralegal (Sandra Wigglesworth) first met to discuss Eagleton’s estate.
At the close of the June 2 meeting, during which West agreed to represent Aleta in both her capacity as personal representative and as co-trustee, Aleta signed West’s “standard” three-page fee agreement and left it with West. The fee agreement, however, did not indicate specifically what West was charging for his work.
West and Aleta next met on July 17, 2008, when West first showed Aleta the exact amount he was charging for his work: $355,887.
The following month, Aleta and her sister Vera met with Ray Leich to discuss the preparation of the estate’s tax return. The three of them also discussed West’s representation. Upon learning the details of the fee agreement, Leich shared Aleta’s initial reaction — he was outraged. Shortly thereafter, on Leich’s advice, Aleta terminated West and hired new counsel. On February 11, 2Ó09, Aleta, individually and as personal representative and co-trustee, along with her mother and two siblings, filed a lawsuit against West in state court to recover the fees that West collected.
Just over a year later, West and his wife jointly filed for chapter 7 bankruptcy. Following West’s bankruptcy filing, Aleta filed an adversary proceeding against West seeking to have the $237,258 she paid West determined to be a nondischargeable debt.
On whole, the evidence at trial overwhelmingly established that the debt owed to Aleta was nondischargeable under § 523(a)(2)(A). In particular, West falsely represented to Aleta that Florida law required him to charge the estate $355,887 for his work. And he furthered this misrepresentation when he told Aleta that her father had approved this arrangement. These were misrepresentations of present fact that West intended Aleta to rely upon,
The evidence also established the debt owed to Aleta was nondischargeable under § 523(a)(4) because West committed a “fraud or defalcation while acting in a fiduciary capacity.” Aleta reposed great trust in West due to his relationship with her father. And West used this position of power to siphon exorbitant fees from the estate. The honest thing to do would have been to advise Aleta of the alternative fee arrangements available to her. and to allow her time to consult outside counsel. This, of course, would be true even if West had not previously had discussions with Eagle-ton about this very matter. Ultimately, it became clear that Aleta would not have signed the fee agreement had West honored his fiduciary duties.
Having determined that the debt owed to Aleta was nondischargeable, the Court held an additional day of trial to determine damages. After hearing all of the testimony, including experts from both sides, the Court concluded that only $24,780 of the $237,258 that West collected from Aleta was actually earned.
Florida Lawyers Mutual has sued Aleta and West seeking a declaration -that it is not liable for the nondischargeability judgment under the terms of West’s professional liability policy.
Florida Lawyers Mutual and Aleta have both since moved for summary judgment.
Conclusions of Law
Two well-established principles guide this case from the beginning. First, for more than 100 years, thq Florida Supreme Court has maintained that provisions of an insurance policy limiting or avoiding liability are construed strictly against the insurer and liberally in favor of the insured.
As an initial matter, it appears the nondischargeable judgment, contrary to claims by Florida Mutual Lawyers, falls within the coverage provisions. To- be sure, the judgment is for excessive fees that Aleta paid West. And the policy unquestionably carves out billing disputes from the coverage provisions.
According to its plain terms, the policy expressly excludes any claim “arising out of a criminal, dishonest, intentional, malicious or fraudulent act, error or omission committed by” West. And West’s misrepresentations to Aleta and breach of his fiduciary duty were intentional, dishonest, and fraudulent. So the policy would seem to exclude coverage for the nondischargeable judgment. But Aleta, who concedes
First, she believes that the exclusion strikes at a narrow category of behavior, largely suggesting that it applies only to criminal acts.
Second, Aleta maintains that the district court’s opinion draws back on this Court’s findings and that its more tempered characterization of West’s behavior controls in deciding Florida Lawyers Mutual’s liability. To prove this point, Aleta relies on phrases in the district court’s opinion that purport to reinforce her conclusion, such as, ‘West acted in reckless disregard of these duties.”
But neither argument justifies this Court overlooking the plain language of the exclusion. For starters, this Court did previously find that West engaged in intentional fraud. The fact that his conduct may have also constituted a breach of fiduciary duty does not overcome the fact that West also committed fraud. And construing the district court’s decision to find that West only engaged in reckless conduct is selective reading at its best. What Aleta fails to recognize is that the district court affirmed this Court’s judgment in full. This means that district court approved of each legal conclusion that the Court reached.
Conclusion
Florida law requires courts to liberally construe policy exclusions in favor of insureds.
A fair look at the facts of this case definitively shows that Aleta’s claim falls
Accordingly, it is
ORDERED:
1. The motion for summary judgment by Aleta Chrisman (Doc. No. 33) is DENIED.
2. The motion for summary judgment by Florida Lawyers Mutual Insurance Company .(Doc. No. 16) is GRANTED.
3. The Court will enter a separate final judgment in favor of Florida Lawyers Mutual.
ORDERED.
. Aleta Diane Chrisman, as Personal Representative of the Estate of E. Boyer Chrisman, a/k/a Eagleton Boyer Chrisman, and as Co-Trustee of the E. Boyer Chrisman a/k/a Eagleton Boyer Chrisman Revocable Living Trust, dated June 25, 2005 v. John William West, III, 8:10-ap-00824-MGW, Adv. Doc. No. 24 at ¶ 3 ("Dis-chargeability Proceeding”).
. Adv. No. 10-ap-00824, Adv. Doc. No. 24 at ¶ 3.
. Adv. No. 10-ap-00824, Adv. Doc. No. 24-3 at p. 3.
. Id. at p. 3.
. Adv. No. 10-ap-00824, Adv. Doc. No. 24 at ¶ 6.
. Id. at ¶ 6.
. Id. at ¶ 7.
. Id. at ¶ 7.
. Id. at V 9.
. Id. at ¶ 11.
. Id. at ¶ 11.
. itf. at ¶11.
. Adv. No. 10-ap-00824, Adv. Doc. No. 39 at p. 7.
. Adv. No. 10-ap-00824, Adv. Doc. No. 24 at ¶¶ 12-13.
. Id. at ¶ 36.
. Adv. No. 10-ap-00824, Adv. Doc. No. 1. Aleta initially named just Wes.t as a defendant. But two years into the litigation, Aleta moved to amend her complaint to add Florida Lawyers Mutual as a codefendant. Adv. No. 10-ap00824, Adv. Doc. No. 125. The Court granted the motion to amend, and Aleta filed a second amended complaint. Adv. No. 10-ap-00824, Adv. Dpc. Nos. 131 & 135.
. Adv. No. 10-ap-00824, Adv. Doc. No. 3 at ¶ 9.
. Adv. No. 10-ap-00824, Adv. Doc. No. 3 at ¶¶ 24-25.
. Bankruptcy Code § 523(a)(2)(A) explains that a discharge under Title 11 does not discharge a debtor for money, property, or services to the extent obtained by “false pretenses, a false representation, or actual fraud.” Similarly, § 523(a)(4) denies a discharge for liability "for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny.”
. Adv. No. 10-ap-00824, Adv. Doc. No. at 19:14-16.
. Adv. No. 10-ap-00824, Adv. Doc. Nos. 190 & 197.
. Adv. Doc. No. 3-8. Florida Lawyers Mutual also named Roger Chrisman, who is now serving with Aleta as-cotrustee of Eagleton's trust, as a Defendant. The lawsuit for declaratory judgment was originally filed in state court. Aleta then removed the case to this Court and then filed a counterclaim seeking a declaration that Florida Lawyers Mutual was liable. Adv. Doc. Nos. 3-1 & 7.
. Adv. Doc. No. 2-1 at § II.A.
. Mat §1.15.
. Id.
. Adv. Doc. Nos. 16 & 33. Both parties filed opposition to the other party’s summary judgment motion. Adv. Doc. No. 32 & 40.
. Adv. Doc. No. 16 at 11-15.
. Id. at 15-18.
. Palatine Ins. Co. v. Whitfield, 73 Fla. 716, 74 So. 869, 873 (1917) (citing L’Engle v. Scottish Union & Nat. Fire Ins. Co., 48 Fla. 82, 37 So. 462, 466 (1904) (internal quotations omitted)).
. Travelers Indem Co. v. PCR Inc., 889 So.2d 779, 785 (Fla. 2004).
. Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla. 2000).
. Adv. Doc. No. 2-1, Ex. A at § II.A.
. See Adv. Doc. No. 32 at p. 7 (referring to the exclusion as the "criminal exclusion” and arguing that "courts have generally interpreted criminal exclusions very narrowly” (emphasis added)).
. Id. at 7-10.
. Id. at 11-12 (citing West v. Chrisman (In re West), 518 B.R. 655, 664-665 (M.D.Fla. 2014)) (emphasis added).
. District courts review de novo the legal conclusions made by bankruptcy courts. Carrier Corp. v. Buckley (In re Globe Mfg. Corp.), 567 F.3d 1291, 1296 (11th Cir. 2009).
. Palatine Ins. Co. v. Whitfield, 73 Fla. 716, 74 So. 869, 873 (1917).
. Rigel v. Nat’l Cas. Co., 76 So.2d 285, 286 (Fla. 1954)
. Travelers Indem. Co. v. PCR Inc., 889 So.2d 779, 785 (Fla. 2004).
. Adv. No. 10-ap-00824, Adv. Doc. No. 190.
Reference
- Full Case Name
- IN RE: John William WEST, III, and Kelly Lynn West, Debtors. Florida Lawyers Mutual Insurance Company v. John W. West, III, P.A.
- Status
- Published