Marquis Acquisitions, Inc., appealed from a summary judgment rendered in
favor of Steadfast Insurance Company on Marquis's claims for breach of
contract, violations of the Texas Insurance Code, breach of the duty of good
faith and fair dealing, and "aiding and abetting." In
Marquis Acquisitions, Inc. v. Steadfast Ins. Co.,
409 S.W.3d 808 (Tex. App. 5th Dist. 2013), the Texas appellate court
resolved the dispute.
Factual Background
The claims in this case arise out of the legal defense provided by
Steadfast Insurance Company to Marquis Acquisitions, Inc., and related
entities in an underlying lawsuit brought by the Burks family in January
2007. The underlying suit was based on a fire at the Colonia Tepeyac
Apartments in Dallas, Texas, that killed three members of the Burks family
and injured several others. The Burks filed suit against multiple defendants
with ownership or management interests in the apartment complex.
The defendants carried several layers of insurance. The first layer was a
$30,000 self-insured retention policy administered by Innovative Risk
Management (IRM). IRM agreed to provide a defense in the Burks suit subject
to a reservation of rights and hired Joe Michael Russell as defense counsel.
Counsel for Marquis, Mr. Shaw, wrote to IRM and stated that, if IRM was
reserving its rights, his client had the right to "select its own defense
counsel and require [IRM] to pay for that defense." IRM agreed to allow Shaw
to take over the defense if the defendants consented in writing and Shaw was
willing to work for the lower hourly rate charged by Russell. Shaw declined
the offer.
On May 17, IRM informed Shaw that it was withdrawing its reservation of
rights and providing all the insureds with an unqualified defense. The
letter referenced apparent allegations by Shaw that a conflict of interest
existed among the insureds, requiring that separate counsel be hired. The
self-insured retention amount was exhausted, and IRM tendered the defense to
Steadfast, which provided the second layer of insurance coverage.
Steadfast sent Shaw a letter informing him
that Steadfast was providing the insureds with an unqualified defense in the
Burks suit and was assigning Clay White as defense counsel. Shaw asserted
that a conflict existed without providing any basis for the assertion.
Relying on the alleged conflict, Shaw demanded that Steadfast hire him as
counsel for Marquis. Shaw also sent an email to defense counsel White
accusing White of wrongfully taking over Marquis's defense despite the
company's request to have Shaw represent it. Shaw further stated that
White's evaluation of the case was "past due."
The next day, White sent a
written case evaluation to Steadfast with copies to Shaw. White stated that
"if the jury believes precious seconds could have delayed the outcome and,
if those seconds could have been added by the smoke detectors being placed
in the bedrooms as required by the HUD statutes, the jury could make a
finding of liability as to the management company or installation team."
White, in a second report, expanded upon his liability assessment and stated
that the management entities had "potential liability as a result of failing
to follow the proper regulations." White opined that it appeared clear that
the apartment complex did not meet code requirements and that this was a
source of liability for both the ownership and the management defendants.
Steadfast, noting the potential for a conflict in the future, hired separate
counsel to represent the management entities. Steadfast did not authorize
Shaw to represent Marquis in the case but instead hired different defense
counsel.
Marquis immediately sued Steadfast and White claiming they had
conspired, "aided and abetted," and were negligent in connection with the
defense of the Burks suit. Because this suit created a conflict between
White and Marquis, White withdrew as defense counsel in the Burks suit, and
Steadfast hired new counsel to represent the management entities.
The
ownership entity defendants settled with the Burks family before trial for
$1 million. This settlement exhausted the Steadfast policy limits, and the
defense was taken over by the excess coverage insurer. The case proceeded to
trial in April 2008, and the jury found in favor of the Burks against the
management defendants. The parties eventually settled for an amount within
policy limits.
Following the trial, Marquis brought this suit against
Steadfast "in an effort to recover the attorney's fees it expended in
getting Steadfast to retain separate counsel for the owner group of insureds."
Analysis
Marquis alleged that Steadfast breached its insurance
contract with Marquis when it "fail[ed] to appoint independent counsel for
the owner group and the management group in order to avoid the clear
conflict that arose between the two groups of insureds." Because it is
undisputed that Steadfast appointed separate counsel for the owner and
management defendants approximately 2 months after it assumed control of the
defense, the appellate court construed Marquis's argument to be that
Steadfast breached the contract by failing to employ separate counsel in a
timely manner.
Marquis asked the court to conclude that an insurer's failure
to appoint separate counsel immediately upon receiving notice of an
unspecified conflict of interest from the insured would constitute a breach
of contract. Steadfast provided summary judgment evidence showing that
Russell indicated no conflict existed and Steadfast responded immediately to
Marquis's allegations of a conflict by requesting information to evaluate
the allegation. In contrast, Marquis never responded to Steadfast's request
for information, nor did it ever specify the nature of the conflict it
believed existed. Nevertheless, Steadfast informed Marquis that, if it was
determined that there was a conflict among the insureds, separate counsel
would be retained.
Within a few weeks, White was able to evaluate the case
and determined there was a potential conflict between the ownership and
management entities. Shortly thereafter, Steadfast hired separate counsel
for the ownership entities. Obviously, Steadfast did not "disregard" notice
of a potential conflict. Instead, it responded to the claim of conflict
immediately. There is nothing in Texas law that requires an insurance
company to immediately hire separate counsel for insured defendants based on
an insured's unspecified and unsubstantiated allegations of a conflict of
interest.
Marquis relied on the affidavit testimony of its insurance expert,
Ben Ralph, who stated that Steadfast's conduct "violated the terms and
conditions of the policy." Ralph's statement that the conduct violated the
insurance contract is nothing more than a legal conclusion. Legal
conclusions are not competent evidence.
Finally, even if Steadfast's actions
could be held to constitute a breach of the insurance contract, the summary
judgment evidence conclusively showed that Marquis suffered no damages as a
result. Proof of actual damages is required to recover for breach of
contract. All of the damages paid to the Burks were covered by insurance
policies, and Marquis produced no summary judgment evidence to show that it
was harmed in any way by the fact that Steadfast did not hire separate
defense counsel to represent it immediately upon Shaw's request.
The only
"damages" sought by Marquis in this case were the fees it paid Shaw for his
efforts to force Steadfast to hire him as Marquis's defense counsel. But any
recovery of attorney's fees must be in addition to the recovery of actual
damages caused by the alleged breach of contract. The summary judgment
evidence showed that any alleged delay in providing Marquis with separate
counsel had no effect on the Burks lawsuit and did not result in any
compensable damages to Marquis.
In this case, it is undisputed that
Steadfast never denied or delayed Marquis's claim for a defense in the Burks
litigation. Marquis asserts only that Steadfast was unreasonable in its
"multiple denials" of Marquis's request for separate counsel.
Conclusion
This case is more about a desire to take advantage of the right to
independent counsel first stated in Cumis than a claim of breach of
contract. The insurer involved in this case provided a defense to its
insureds for a very serious liability claim without reservation. It retained
competent counsel to represent the insureds and responded promptly to
demands of the insureds' counsel that he be allowed to defend the insured at
the rate he demanded rather than at the lower rates charged by counsel
appointed by the insurer. When the insurers properly refused to allow Shaw
to defend, his client sued to get the fees he charged to try to get himself
hired.
As the late Chick Hearn said with regard to basketball, the court
ruled there was no harm and, therefore, no foul, no tort, and no real
damage.
For a detailed review of the Cumis
case and how it was abused, see the chapter in my book
Insurance Claims: A Comprehensive
Guide, available from Specialty Technical Publishers.
© 2014 Barry Zalma, Esq., CFE