11-1153-cv (L) Westport Ins. Co. v. The Hamilton Wharton Group, Inc., et al.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 17th day of May, two thousand twelve. 5 6 PRESENT: RICHARD C. WESLEY, 7 RAYMOND J. LOHIER, JR., 8 CHRISTOPHER F. DRONEY, 9 Circuit Judges. 10 11 WESTPORT INSURANCE CORPORATION, 12 13 Plaintiff-Counter-Defendant-Appellant- 14 Cross-Appellee, 15 16 v. 11-1153-cv (Lead) 17 11-1493-cv (XAP) 18 19 THE HAMILTON WHARTON GROUP INC., WALTER B. TAYLOR, 20 INDIVIDUALLY 21 22 Defendants-Counter-Claimants-Third Party 23 Plaintiffs-Appellees-Cross-Appellants, 24 25 INTER-COMMUNITY MEMORIAL HOSPITAL OF NEWFANE, INC., 26 INTERGRATED CARE SYSTEMS, LLC, ATHEALTHCARE, LLC, AARON 27 SELIGSON, MARTIN S. ROTHMAN, ABRAHAM V. FRIEDMAN, ESTATE OF 28 HERBERT A. ROTHMAN, ESTATE OF BERNARD FEUER PARTNERS, DBA 29 BROOKHAVEN BEACH HEALTH RELATED FACILITY, ESTATE OF BERNARD 30 FEUER, PARTNERS, DBA ROCKVILLE RESIDENCE MANOR, AMERICAN 31 GERI-CARE, INC., BEZALEL NURSING HOME COMPANY, INC., 32 CREATIVE LIFESTYLES, INC., PREFERRED HEALTH CARE SERVICES 33 INC., NOW KNOWN AS COTTAGE HOMECARE SERVICES, INC., EAST NEW 34 YORK URBAN YOUTH CORPS, E.R.N.H., AKA EAST ROCKAWAY NURSING 35 HOME, ELMHURST CARE CENTER, INC., GEORGE KATZ, DBA THE NEW 1 BRIGHTON MANOR OF LONG BEACH HOME FOR ADULTS, SUZIE KLEIN, 2 DBA THE NEW BRIGHTON MANOR OF LONG BEACH HOME FOR ADULTS, 3 GREATER NEW YORK HOME CARE SYSTEMS, INC., HIGHLAND CARE 4 CENTER, INC., HUDSON VALLEY HOME CARE, INC., KESER NURSING & 5 REHABILITATION CENTER, INC., LOGAN & LOGAN, INC., FKA CEDAR 6 LODGE NURSING HOME, NEW SOUTH SHORE MANOR, NEW YORK COUNTY 7 SERVICES REVIEW ORGANIZATION, NYACK MANOR NURSING HOME, 8 OYSTER BAY MANOR SENIOR RESIDENCE, INC., PERSONNEL 9 MANAGEMENT SERVICES, LLC, QUALITY HEALTHCARE, INC., ROYAL 10 HEALTH CARE SERVICES, INC., ST. MICHAEL'S HOME, THE 11 DENNELISSE CORPORATION, THE ESTATE OF PAUL C. MAGGIO, DBA 12 PATCHOGUE NURSING CENTER, UNIQUE PEOPLE SERVICES, INC., 13 UNITED PRESBYTERIAN AND REFORM ADULT MINISTRIES, DBA 14 FLUSHING HOUSE, PRAXIS HOUSING INITIATIVES, INC., DBA THE 15 BARBOUR HOTEL, ALTERNATIVE STAFFING, INC., BHHEALTHCARE 16 SERVICES, INC., DBA NURSING PERSONNEL, BARKSDALE MANAGEMENT, 17 CORP., BRIARWOOD MANOR, INC., BRONXWOOD HOME FOR THE AGED, 18 INC., CARING PROFESSIONALS, INC., CEDAR MANOR, INC., COHME, 19 INC., CROWN NURSING HOME ASSOCIATES, INC., DENTSERV DENTAL 20 SERVICES, P.C., DESMOND MCMANUS, DBA BAYSHORE HOME FOR 21 ADULTS, TELFORD HOME ASSISTANCE, INC., DBA EXTENDED CARE 22 HEALTH SERVICES, EXTENDED NURSING PERSONNEL CHHA, INC., GEM 23 HEALTHCARE EMPLOYMENT AGENCY, INC., HOLLISWOOD CARE CENTER, 24 INC., INTERIM HOUSING, INC., MEADOWBROOK CARE CENTER, INC., 25 NASSAU-SUFFOLD HOME CARE AND AIDES, INC., RECREATIONAL 26 SERVICES, INC., UNION PLAZA NURSING HOME, INC., VISITING 27 NURSE REGIONAL HEALTH CARE SYSTEM, INC., WEST SIDE 28 FEDERATION FOR SENIOR AND SUPPORTIVE HOUSING, INC., 29 30 Defendants-Appellees, 31 32 IAAC, INC., INDEPENDENT INSURANCE AGENTS & BROKERS OF NEW 33 YORK, INC. 34 35 Third-Party Defendants-Appellees. 36 37 38 39 JOYCE F. NOYES (Robert P. Conlon, James W. 40 Kienzle, on the brief), Walker Wilcox 41 Matousek LLP, Chicago, IL, for Plaintiff- 42 Counter-Defendant-Appellant-Cross- 43 Appellee Westport Insurance Corporation. 44 45

2 1 KEVIN L. SMITH (Derek I.A. Silverman, on the 2 brief), Stroock & Stroock & Lavan LLP, 3 New York, NY, for Defendants-Counter- 4 Claimants-Third Party Plaintiffs- 5 Appellees-Cross-Appellants The Hamilton 6 Wharton Group, Inc., Walter B. Taylor, 7 individually. 8 9 Joseph E. Zdarsky, Sr. (David E. Gutowski, on 10 the brief), Zdarsky Sawicki & Agostinelli 11 LLP, Buffalo, NY, for Defendants- 12 Appellees Inter-Community Memorial 13 Hospital of Newfane, Inc. Eastern Niagara 14 Hospital, Inc. and Intergrated Care 15 Systems, LLC. 16 17 Steven J. Ahmuty, Jr., Timothy R. Capowski, 18 Gerard S. Rath, Shaub, Ahmuty, Citrin & 19 Spratt LLP, Lake Success, NY, for 20 Defendants-Appellees A & T HealthCare, 21 LLC; Bezalel Nursing Home Company, Inc.; 22 Creative Lifestyles, Inc.; E.R.N.H. 23 Corporation, Inc. d/b/a East Rockaway 24 Nursing Home; Elmhurst Care Center, Inc.; 25 George Katz d/b/a The New Brighton Manor 26 of Long Beach Home for Adults; Suzie 27 Klein d/b/a The New Brighton Manor of 28 Long Beach Home for Adults; Highland Care 29 Center, Inc.; Hudson Valley Home Care, 30 Inc.; New South Shore Manor; Nyack Manor 31 Nursing Home; Royal Health Care Services, 32 Inc.; The Dennelisse Corporation; The 33 Estate of Paul C. Maggio d/b/a Patchogue 34 Nursing Center; Unique People Services, 35 Inc.; United Presbyterian and Reformed 36 Adult Ministries, Inc. d/b/a Flushing 37 House; and New York County Health 38 Services Review Organization. 39 40 Richard Scott Atwater, Gross, Shuman, Brizdle 41 & Gilfillan, P.C., Buffalo, NY, for 42 Defendants-Appellees Alternative 43 Staffing, Inc.; B & H HealthCare 44 Services, Inc. d/b/a Nursing Personnel; 45 Barksdale Management, Corp.; Briarwood

3 1 Manor, Inc.; Bronxwood Home for the Aged, 2 Inc.; Caring Professionals, Inc.; Cedar 3 Manor, Inc.; COHME, Inc.; Crown Nursing 4 Home Associates, Inc.; Dentserv Dental 5 Services, P.C.; Desmond McManus d/b/a 6 Bayshore Home for Adults; Telford Home 7 Assistance, Inc., d/b/a Extended Care 8 Health Services, Extended Nursing 9 Personnel CHHA, Inc.; GEM Health Care 10 Employment Agency, Inc.; Holliswood Care 11 Center, Inc.; Interim Housing, Inc.; 12 Meadowbrook Care Center, Inc.; Nassau- 13 Suffolk Home Care & Aides, Inc.; 14 Recreational Services, Inc.; Union Plaza 15 Nursing Home, Inc.; Visiting Nurse 16 Regional Health Care System, Inc.; and 17 West Side Federation for Senior and 18 Supportive Housing, Inc. 19 20 Robert J. Grande, Keidel, Weldon & Cunningham, 21 LLP, White Plains, NY, for Third-Party 22 Defendants-Appellees IAAC, Inc. and 23 Independent Insurance Agents & Brokers of 24 New York, Inc. 25 26 Robert Leonard Schonfeld, Moritt Hock & 27 Hamroff LLP, Garden City, NY, for Praxis 28 Housing Initiatives, Inc. d/b/a Barbour 29 Hotel. 30 31 Appeal from the United States District Court for the 32 Southern District of New York (Berman, J.). 33 34 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

35 AND DECREED that the judgment of the United States District

36 Court for the Southern District of New York is AFFIRMED.

37 Appellant Westport Insurance Corporation (“Westport”)

38 appeals from the February 23, 2011 Decision and Order of the

39 United States District Court for the Southern District of

4 1 New York (Berman, J.), granting summary judgment to the

2 appellees and dismissing Westport’s declaratory judgment

3 action (the “DJ Order”). Westport sought a declaratory

4 judgment that a professional liability insurance policy (the

5 "Policy") issued by Westport to Appellee Hamilton Wharton

6 Group, Inc. ("Hamilton Wharton") does not impose upon

7 Westport either a duty to defend or a duty to indemnify

8 Hamilton Wharton in four lawsuits filed in New York State

9 Supreme Court (the "State Actions") against Hamilton Wharton

10 and its owner, Walter B. Taylor ("Taylor," together with

11 Hamilton Wharton, the "Defendants"). In the DJ Order, the

12 district court found that (i) Westport had a duty to defend

13 the Defendants and (ii) the complaint should be dismissed as

14 "premature" with respect to the Defendants’ duty to

15 indemnify because "issues of fact on which the insurance

16 coverage depends" have yet to be adjudicated in the State

17 Actions. On March 31, 2011, the district court awarded the

18 Defendants' counsel attorneys' fees in the amount of

19 $159,477.50 and costs of $26,317.91 (the “Attorneys’ Fees

20 Award”). Both Westport and the Defendants also appeal from

21 the Attorneys’ Fees Award. We assume the parties’

22 familiarity with the facts, procedural history, and issues

23 presented for review.

5 1 We review de novo the district court’s grant of summary

2 judgment, “construing the evidence in the light most

3 favorable to the non-moving party and drawing all reasonable

4 inferences in its favor.” Costello v. City of Burlington,

5

(2d Cir. 2011); see Fed. R. Civ. P. 56(a).

6 The district court did not err in concluding that the

7 State Actions trigger Westport's duty to defend. Under New

8 York law—which the parties agree applies in this case—an

9 insurer's duty to defend is broader than its duty to

10 indemnify and has been described by the New York Court of

11 Appeals as "exceedingly broad." Colon v. Aetna Life & Cas.

12 Ins. Co.,

(1985). Indeed, “[s]o long as the

13 claims [asserted against the insured] may rationally be said

14 to fall within policy coverage, whatever may later prove to

15 be the limits of the insurer's responsibility to pay, there

16 is no doubt that it is obligated to defend.” Seaboard Sur.

17 Co. v. Gillette Co.,

(1984)

18 (alterations in original) (internal quotation marks

19 omitted).

20 Here, the claims asserted against Westport may

21 rationally be said to fall within the Policy’s coverage.

22 The “professional services” contemplated by the Policy

23 encompass at least some of the activities alleged in the

6 1 State Actions, which included, inter alia, allegations that

2 the Defendants were negligent in handling their funds by:

3 continuing to sign up new participants to join the trust;

4 failing to hire an accountant; offering unwarranted

5 discounts to trust members; failing to implement safety

6 audits; and failing to conduct payroll audits.

7 Westport contends that the Policy’s Insolvency

8 Exclusion bars coverage for the underlying complaints and

9 that the district court erred because it failed to analyze

10 this exclusion. The district court did not address the

11 applicability of the Insolvency Exclusion for good reason.

12 To the extent the issue was raised below at all, Westport

13 offered only conclusory assertions that the Insolvency

14 Exclusion barred coverage even though Westport bore the

15 “heavy burden” of establishing the applicability of the

16 exclusion. Commercial Union Assurance Co. v. Oak Park

17 Marina, Inc.,

(2d Cir. 1999). Westport’s

18 conclusory assertions, rather than argument, were

19 insufficient to preserve this issue for appellate review.

20 See Credit Lyonnais Sec. (USA), Inc. v. Alcantara,

(2d Cir. 1999). “‘It is a well-established general

22 rule that an appellate court will not consider an issue

23 raised for the first time on appeal.’” Allianz Ins. Co. v.

7 1 Lerner,

(2d Cir. 2005) (quoting Greene v.

2 United States,

(2d Cir. 1994)). While we

3 have the discretion to relax this rule to consider a purely

4 legal issue or to avoid manifest injustice, we see no reason

5 to exercise such discretion under the circumstances of this

6 case.

Moreover, we are not persuaded that all of the

7 claims against Hamilton Wharton and Taylor in the underlying

8 complaints would fall within the scope of the Insolvency

9 Exclusion. Notably, the Niagara complaint lacks any

10 allegations referring to the trust’s insolvency or financial

11 inability to pay.

12 Next, Westport contends that the district court erred

13 in dismissing as premature Westport's action as to its duty

14 to indemnify. We review a district court's decision to

15 refuse to exercise jurisdiction over a declaratory judgment

16 action “deferentially, for abuse of discretion.” Dow Jones

17 & Co. v. Harrods Ltd.,

(2d Cir. 2003).

18 Where, as here, "another suit is pending in a state court

19 presenting the same issues, not governed by federal law,

20 between the same parties," it is entirely appropriate for a

21 district court to dismiss a declaratory judgment action.

22 Wilton v. Seven Falls Co.,

(1995)

23 (internal quotation marks omitted). As the district court

8 1 noted, the declaratory judgment action and the State Actions

2 have numerous unresolved issues in common, including whether

3 the Defendants were negligent or breached fiduciary or

4 contractual obligations. As a result, the district court

5 did not abuse its discretion in dismissing as premature the

6 indemnification portion of Westport’s declaratory judgment

7 action.

8 We also reject Westport’s contention that it was

9 prejudiced because the district court denied its request for

10 discovery in response to the Defendants' motion for summary

11 judgment. See Fed. R. Civ. P. 56(d); see also Gualandi v.

12 Adams,

(2d Cir. 2004). In assessing

13 whether Westport had a duty to defend and indemnify, the

14 district court was required to "compare the allegations of

15 the complaint to the terms of the policy." A. Meyers & Sons

16 Corp. v. Zurich Am. Ins. Grp.,

(1989).

17 It was not required to consider the additional materials

18 submitted by the Defendants, and there is no evidence that

19 it actually did so. Accordingly, the district court did not

20 abuse its discretion in precluding Westport from conducting

21 additional discovery.

22 Next, we address the parties’ objections to the

23 Attorneys’ Fees Award. The scope of our review in this

9 1 regard is "circumscribed." Chambless v. Masters, Mates &

2 Pilots Pension Plan,

(2d Cir. 1989).

3 The district court has "the best vantage point from which to

4 assess the skill of the attorneys and the amount of time

5 reasonably needed to litigate a case."

.

6 Moreover, "attorney's fees are to be awarded with an eye to

7 moderation, seeking to avoid either the reality or the

8 appearance of awarding windfall fees." N.Y. State Ass'n for

9 Retarded Children, Inc. v. Carey,

(2d

10 Cir. 1983)(citation and internal quotation marks omitted).

11 Thus, the district court's calculation of attorneys' fees

12 will not be disturbed absent a clear abuse of discretion.

13 Chambless,

.

14 The district court did not abuse its discretion by

15 reducing the Defendants’ counsel’s hourly rates. The

16 district court relied on several valid considerations in

17 making its determination, including: the limited time and

18 labor required, the relatively straightforward nature of the

19 case, the absence of severe time demands, and the rates

20 awarded in similar cases. See, e.g., U.S. Football League

21 v. Nat’l Football League,

, 415 (2d Cir. 1989)

22 (citing Johnson v. Georgia Highway Express, Inc.,

(5th Cir. 1974)).

10 1 The Defendants counter that the district court relied

2 on "historic rates that no longer apply, as well as the

3 rates of opposing counsel." We disagree. The Defendants

4 have not demonstrated that any of the rates relied on by the

5 district court no longer prevail in the Southern District of

6 New York. It was also not error for the district court to

7 consider the rates charged to Westport's counsel. This was

8 one of several factors relied on by the district court, and

9 it was certainly not an unreasonable consideration given

10 that the Defendants’ counsel requested fees were

11 approximately four times greater than the fees Westport paid

12 to its own counsel for the same work.

13 We also decline Westport’s invitation to further reduce

14 the Attorneys’ Fees Award. Westport's reliance on the

15 hourly rates of other appellees, as well as the hourly rates

16 awarded in GuideOne Specialty Mutual Insurance Co. v.

17 Congregation Adas Yereim, No. 1:04-cv-5300 (ENV)(JO), 2009

, at *3 (E.D.N.Y. Sept. 30, 2009), is misplaced.

19 Counsel for the other appellees are located in Buffalo or in

20 Lake Success, New York and thus, do not represent the

21 "prevailing community a district court should consider to

22 determine” the reasonable hourly rate. Reiter v. MTA N.Y.

23 City Transit Auth.,

(2d Cir. 2006).

11 1 Similarly, GuideOne involved an award to attorneys in the

2 Eastern District of New York, and the GuideOne court noted

3 that Manhattan attorneys' rates are higher than those in

4 Brooklyn. Id. at *3.

5 In addition, Westport's contention that the proposed

6 time entries were unreasonable is unavailing. The district

7 court reduced the number of hours credited to the

8 Defendants’ counsel by 35% from 772.8 hours to approximately

9 502.3 hours. Westport admitted that its own counsel devoted

10 just over 400 hours to this litigation. The district court

11 did not abuse its discretion in reducing the number of hours

12 by 35%.

13 Finally, the district court did not abuse its

14 discretion in awarding costs. The costs sought by the

15 Defendants’ counsel reflected, among other things, in-house

16 duplication costs, telephone charges, meals, overtime, local

17 transportation, postage, electronic legal research, and

18 messenger service. All of these categories of costs are

19 "the sort of expenses that may ordinarily be recovered" as

20 part of a fee award, and are not treated as "overhead

21 expenses." LeBlanc-Sternberg v. Fletcher,

, 763

22 (2d Cir. 1998); see also Kuzma v. Internal Revenue Serv.,

23

(2d Cir. 1987); Aston v. Sec. of Health

12 1 and Human Servs.,

(2d Cir. 1986).

2 Accordingly, it was not error for the district court to

3 compensate the Defendants’ counsel for a portion of these

4 costs.

5 We have considered all of the parties’ remaining

6 arguments and, after a thorough review of the record, find

7 them to be without merit.

8 For the foregoing reasons, the judgment of the district

9 court is hereby AFFIRMED. As a result, the Third-Party

10 Defendants’ motion to strike the Defendants' request for

11 leave to re-file the Third-Party Complaint is denied as

12 MOOT.

13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk 15 16

13