Summaries of Selected Opinions, 0918 COBJ, Vol. 47, No. 8 Pg. 101
| Position | Vol. 47, 8 [Page 101] |
August, 2018
U.S. COURT OF APPEALS FOR THE TENTH CIRCUIT
No. 16-1464. Evanston Insurance Co. v. Law Office of Michael P. Medved, P.C. 5/22/2018. D.Colo. Judge Bacharach. Foreclosure—Professional Liability Insurance—Overbilling Allegations—Duty to Defend—Estoppel—Prejudice—Reservation of Rights.
Attorney Medved and his law firm (collectively, Medved) handled foreclosures and billed its fees and costs to its clients, who were lenders and investors. The fees, however, were ultimately passed on to the property owners or buyers (if the property was resold). The Colorado Attorney General investigated Medved and other foreclosure attorneys, questioning whether they had overbilled. When the investigation became public, a group of property owners filed a class action against Medved for overbilling. Medved submitted a claim under its liability policy with Evanston Insurance Co. (Evanston). Evanston defended Medved until it settled with the property owners, subject to a reservation of rights. The Attorney General ultimately filed suit against Medved, which Evanston agreed to defend under a reservation of rights. Medved settled for SI million, obviating any need for a defense.
Evanston ultimately concluded that the overbilling allegations were outside of the law firm's professional services coverage. Evanston sued Medved, seeking a declaratory judgment that Medved's policy did not cover the class action or the Attorney General's investigation and requesting reimbursement of its attorney fees and costs in defending the class action. Medved countersued for breach of the insurance contract and bad faith. The district court granted summary judgment to Evanston.
On appeal, Medved argued that under the policy, Evanston was required to defend against the class action and the Attorney General's investigation. The Tenth Circuit determined that the policy did not create a duty to defend because the allegations had arisen from billing practices, not professional services.
Medved also argued that Evanston was estopped from asserting coverage defenses for the class action by failing to make an effective reservation of rights. Medved claimed it could have settled earlier or used a different attorney if it had known that Evanston would assert coverage defenses. Here, Evanston sent an effective reservation of rights letter before the start of trial or settlement talks. Even if Evanston had failed to reserve its rights when it assumed a defense in the class action, there was no prejudice, and Evanston was not estopped from denying a duty to defend the class action.
Medved also contended that its counterclaims for bad faith should have survived summary judgment even in the absence of a duty to defend. Medved failed to raise this argument in district court and thus forfeited it.
The judgment was affirmed.
No. 17-2159. United States v. Deiter. 5/24/2018. D.N.M. Judge O'Brien. Armed Career Criminal Act—Elements Clause—Residual Clause— Bank Robbery—Crime of Violence—Aiding and Abetting.
Defendant was convicted of being a felon in possession of a firearm and ammunition. The district court enhanced his sentence to 15 years under the Armed Career Criminal Act (ACC A), finding that he had two prior convictions for a...
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