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Metropolitan Property and Casualty Ins. Co. v. Westport Ins. Corp.

United States District Court, D. Nebraska

September 18, 2015

METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY, Assignee of the Claims of Agency One Insurance, Inc., and Pamela A. Siroky, Plaintiff,
v.
WESTPORT INSURANCE CORP., Defendant

          For Metropolitan Property and Casualty Insurance Company, Assignee of the Claims of Agency One Insurance, Inc. and Pamela A. Siroky, Agency One Insurance, Inc., Pamela A Siroky, Plaintiff: Christopher R. Miller, PRO HAC VICE, MILLER, GRELL LAW FIRM, Lincoln, NE; Colin A. Mues, David A. Dudley, BAYLOR, EVNEN LAW FIRM, Lincoln, NE.

         For Westport Insurance Corp., Defendant, Counter Claimant: Joyce F. Noyes, Robert P. Conlon, PRO HAC VICE, WALKER, WILCOX LAW FIRM - CHICAGO, Chicago, IL; Michael K. Huffer, CASSEM, TIERNEY LAW FIRM, Omaha, NE.

         For Westport Insurance Corp., Counter Claimant: Robert P. Conlon, PRO HAC VICE, Joyce F. Noyes, WALKER, WILCOX LAW FIRM - CHICAGO, Chicago, IL; Michael K. Huffer, CASSEM, TIERNEY LAW FIRM, Omaha, NE.

         For Westport Insurance Corp., Counter Claimant: Joyce F. Noyes, Robert P. Conlon, WALKER, WILCOX LAW FIRM - CHICAGO, Chicago, IL; Michael K. Huffer, CASSEM, TIERNEY LAW FIRM, Omaha, NE.

         For Metropolitan Property and Casualty Insurance Company, Assignee of the Claims of Agency One Insurance, Inc. and Pamela A. Siroky, Counter Defendant: Christopher R. Miller, MILLER, GRELL LAW FIRM, Lincoln, NE; Colin A. Mues, David A. Dudley, BAYLOR, EVNEN LAW FIRM, Lincoln, NE.

Page 924

          MEMORANDUM AND ORDER

         Richard G. Kopf, Senior United States District Judge.

         Plaintiff, Metropolitan Property and Casualty Insurance Company (" Met P& C" ), assignee of the claims of Agency One Insurance, Inc. (" Agency One" ), and Pamela A. Siroky (" Siroky" ), has filed two motions for partial summary judgment, while Defendant, Westport Insurance Corporation (" Westport" ), has filed a motion for reconsideration of the court's denial of its motion for summary judgment. The court will deny Westport's motion for reconsideration and will grant Met P& C's first motion for partial summary judgment. Met P& C's second motion for partial summary judgment will be denied because there is a triable issue of collusion.

         Met P& C's first motion for partial summary judgment, filed on March 11, 2015 (Filing No. 131),[1] seeks a ruling that Westport breached its contractual obligations under an errors and omissions insurance policy to defend and indemnify Agency One and Siroky against a direct negligence claim in a lawsuit filed by Met P& C in the United States District Court for the Northern District of Iowa.[2] In response,

Page 925

Westport contends the claim is specifically excluded from coverage as " arising out of" the wrongful act of an unlicensed Agency One employee.[3] Westport previously made the same argument in support of its motion for summary judgment, which the court denied on January 7, 2015. Westport also contends a confessed judgment entered in the Iowa lawsuit on the negligence claim was the product of collusion between Met P& C, Agency One, and Siroky.

         Met P& C's second motion for partial summary judgment, filed on June 30, 2015 (Filing No. 161), seeks a ruling that the settlement of the Iowa lawsuit, including the confession of judgment and assignment of claims by Agency One and Siroky, was made in good faith and is reasonable. In response, Westport contends the evidence establishes collusion, or at least the existence of a genuine issue of material fact.[4]

         Westport's Motion for Reconsideration

         On April 6, 2015, Westport filed a motion for reconsideration of that portion of the court's memorandum and order entered on January 7, 2015 (Filing No. 123), which denied a motion for summary judgment filed by Westport (Filing No. 90). Westport contends the court erred in finding that a " Specified Individual Entity Exclusion" by its terms does not apply to exclude insurance coverage with respect to allegations of negligence that were made by Met P& C against Agency One and Siroky in the Iowa lawsuit. Westport also contends the court erred in finding there was a genuine issue of material fact as to whether the exclusion, even if applicable to such allegations, was effective at the time Met P& C made its claims against Agency One and Siroky.

         " [T]he Federal Rules of Civil Procedure 'do not mention motions for reconsideration.'" Elder-Keep v. Aksamit, 460 F.3d 979, 984 (8th Cir. 2006) (quoting Broadway v. Norris, 193 F.3d 987, 989 (8th Cir. 1999)), but the Eighth Circuit has " determined that motions for reconsideration are 'nothing more than Rule 60(b) motions when directed at non-final orders,'" id. (quoting Anderson v. Raymond Corp., 340 F.3d 520, 525 (8th Cir. 2003)); accord Nelson v. American Home Assur. Co. 702 F.3d 1038, 1043 (8th Cir. 2012) (applying Rule 60(b) standards to affirm district court's denial of motion for reconsideration of order denying summary judgment).[5] Rule 60(b) provides that a party may be relieved from an order for " mistake, inadvertence, surprise, or excusable neglect," for " newly discovered evidence," or for

Page 926

" fraud." Fed.R.Civ.P. 60(b)(1)-(3). The rule also contains a catch-all provision which states that relief may be granted for " any other reason that justifies relief," Fed.R.Civ.P. 60(b)(6), but this " is not a vehicle for simple reargument on the merits." Broadway, 193 F.3d at 989-90.

         The Specified Individual Entity Exclusion, which Westport relies upon in defense of this action, states:

This INSURANCE INDUSTRY PROFESSIONALS " coverage unit(s)" does not apply to any " claim" or " loss" arising out of any " wrongful act" in the performance of business services by DOUG INLAY or any vicarious liability or apparent authority for liability for any " wrongful act" in the performance of business services by DOUG INLAY.

(Filing No. 92-16 at CM/ECF p. 49).[6] Westport argued in support of its motion for summary judgment that the exclusion " is clear, unambiguous and precludes coverage for the Met P& C claim against Agency One." (Filing No. 91 at CM/ECF p. 21).

         Focusing only on the first part of the exclusion, Westport noted that " [t]he Nebraska Supreme Court has stated that the phrase 'arising out of' is broad and comprehensive and requires only 'but for' causation," and then argued that the exclusion applies " [i]n this case [because] 'but for' Inlay's misconduct, there would have been no claim against Agency One." (Filing No. 91 at CM/ECF pp. 21-22) (internal quotes and citation omitted). Met P& C, on the other hand, looked to the second part of the exclusion and argued that " [w]hile the Met P& C Lawsuit clearly centers on ... the vicarious liability of Agency One for Inlay's writing of the policy ...., certain claims and allegations go directly to the conduct of Agency One," including claims that " Siroky and Agency One were each negligent in their failure to adequately train, monitor and supervise their employees and producers" and in " fail[ing] to properly investigate before the binding and issuing of the [Met P& C] policy." (Filing No. 93 at CM/ECF p. 17). The court accepted Met P& C's argument and found Westport had created an ambiguity by specifically excluding vicarious liability claims that would already be excluded from coverage if the phrase " arising out of" were to be given the broad and comprehensive meaning urged by Westport.

         Arguing in support of its motion for reconsideration, Westport complains that the court " raised the ambiguity issue sua sponte in the opinion ... without affording Westport a full and fair opportunity to present argument or evidence regarding ambiguity or the manner in which the exclusions, if ambiguous, should be interpreted." (Filing No. 158 at CM/ECF p. 12). The court disagrees. The meaning of the Specified Individual Entity Exclusion was put directly at issue by Westport's motion for summary judgment, which made it incumbent upon the court to decide, as an initial matter, whether Westport was correct to assert that the exclusion is unambiguous. " Under Nebraska law, a court interpreting a contract, such as an insurance policy, must first determine,

Page 927

as a matter of law, whether the contract is ambiguous." Guerrier v. Mid-Century Ins. Co., 266 Neb. 150, 663 N.W.2d 131, 135 (Neb. 2003) (emphasis supplied). In any event, Westport has now had a full and fair opportunity to argue and present evidence on the question of whether the exclusion is ambiguous.[7]

         Westport relies on two Eighth Circuit decisions, In re SRC Holding Corp., 545 F.3d 661, 670 (8th Cir. 2008), and Rapid Leasing, Inc. v. Nat'l Am. Ins. Co., 263 F.3d 820, (8th Cir. 2001), which indicate that overlapping exclusions in an insurance policy do not necessarily create an ambiguity, and may be applied despite their redundancy. The present case, however, involves a single exclusion which, as Westport admits, contains two " separate and independent" clauses. (Filing No. 146 at CM/ECF p. 33). Westport notes that the clauses are joined by the word " or," and states that " the Nebraska Supreme Court has recognized that the term 'or' is disjunctive, meaning that the two phrases are to be independently applied." (Filing No. 146 at CM/ECF p. 35, citing Liddell-Toney v. Nebraska Dept. of Health and Human Services, 281 Neb. 532, 797 N.W.2d 28, 32 (Neb. 2011)). Terms connected by " or" normally are read to have separate meanings and significance. United States v. Wilson, 41 F.3d 399, 401 (8th Cir. 1994). " When used as a disjunctive particle, the word " or" means an alternative." Wolfe v. Abramson, No. A-97-1210, 1999 WL 703291, at *6 (Neb.App. 1999) (unpublished) (citing Mook v. City of Lincoln, 146 Neb. 779, 21 N.W.2d 743, 744 (Neb. 1946); see also Zach v. Eacker, 271 Neb. 868, 716 N.W.2d 437, 441 (Neb. 2006) (disjunctive connector " or" signifies " that one provision [is to] be given effect to the exclusion of another." ). By contrast, " the conjunctive connector 'and' typically suggests ... that more than one subparagraph might apply to any given circumstances." Zach, 716 N.W.2d at 441.

         The Specified Individual Entity Exclusion states that the insurance policy does not apply to any claim " arising out of any 'wrongful act' ... by DOUG INLAY or any vicarious liability ... for any 'wrongful act' ... by DOUG INLAY." (Filing No. 92-16 at CM/ECF p. 49) (emphasis supplied). If the word " or" is disjunctive, then there is no insurance coverage if the claim either (1) arises out of a wrongful act by Inlay or (2) arises out of an insured's vicarious liability for Inlay's wrongful act. But this is not the construction urged by Westport. Instead of reading the exclusion as identifying alternative types of claims, Westport asserts that vicarious liability claims are subsumed within the first part of the exclusion because they arise out of a wrongful act by Inlay. In effect, Westport reads the word " or" to mean " including." See, e.g., Thomas v. Progressive Cas. Ins. Co., 749 N.W.2d 678, 685 (Iowa 2008) (finding no ambiguity in automobile policy which stated: " No coverage is provided for any claim arising from an accident or loss involving a motorized vehicle operated by an excluded person. This includes any claim for damages made against you, a relative, or any other person or organization that is vicariously liable for an accident arising out of the operation of a motorized vehicle by the excluded driver." ).

         The Specified Individual Entity Exclusion is ambiguous because although

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vicarious liability claims are causally connected to the wrongful act of an employee, the disjunctive connector " or" suggests that the second clause, excluding vicarious liability claims, is " separate and independent" from the first clause rather than being a component thereof.[8] If this interpretation is accepted, then it is also reasonable to conclude that claims made against Agency One and Siroky for their direct negligence are not be to considered as " arising out of" Inlay's wrongful act, and are not excluded from coverage by the Specified Individual Entity Exclusion. Westport's motion for reconsideration therefore will be denied.[9]

         Met P& C's First Motion for Partial Summary Judgment

         Because the Specified Individual Entity Exclusion is ambiguous, it must be construed in favor of the insureds. See Safeco Ins. Co. of America v. Husker Aviation, Inc., 211 Neb. 21, 317 N.W.2d 745, 750 (Neb. 1982) (" [A]mbiguities must be construed against the insurer and if a policy is fairly susceptible of two constructions and one affords coverage and the other does not then the construction which affords coverage must be adopted." ). Based on this ruling, and on the absence of any genuine issue of material fact, Met P& C seeks a determination that the negligence claim it alleged against Agency One and Siroky in the Iowa lawsuit is covered by Westport's policy.

         The insuring agreement provides that Westport " will pay on behalf of the insured 'loss' for which the insured is legally liable caused by a 'wrongful act' committed by an insured arising out of 'professional services' rendered to others." (Filing No. 92-16 at CM/ECF p. 19). In addition, the policy provides that Westport " shall[ ] have the right and duty to defend, investigate, and conduct any settlement negotiations arising from 'claims' first made based upon alleged 'wrongful acts' of an insured." (Filing No. 92-16 at CM/ECF p. 21).[10]

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          Westport does not dispute that Agency One and Siroky are " insureds" under the policy,[11] that a " claim" was made against them by Met P& C during the policy period,[12] that they both suffered a " loss" when a confessed judgment was entered against them,[13] that the alleged acts of negligence were " wrongful acts," [14] and that the wrongful acts arose out of " professional services." [15] Nor does Westport dispute that the insureds gave proper notice of the claim.[16] It follows that Met P& C is entitled to the entry of summary judgment holding Westport liable for breach of contract by refusing to defend and indemnify Agency One and Siroky with the respect to the claim of direct negligence alleged against them by Met P& C in the Iowa lawsuit. It must next be determined whether there is evidence to support Wesport's affirmative defense that the confessed judgment in the Iowa lawsuit was the product of collusion.

         Met P& C's Second Motion for Partial Summary Judgment

         " [W]here an insurance company is notified of a pending suit against an insured and has a full opportunity to defend the action, the judgment against the insured, if obtained without fraud or collusion, will be conclusive against the insurance company." Fokken v. Steichen, 274 Neb. 743, 744 N.W.2d 34, 40 (Neb. 2008). However, " [a] consent judgment is subject to collateral attack when the facts demonstrate that the judgment or settlement was entered into fraudulently, collusively, or in bad faith." Carlson v. Zellaha, 240 Neb. 432, 482 N.W.2d 281, 283 (Neb. 1992) (citing Metcalf v. Hartford Acc. & Ind. Co., 176 Neb. 468, 126 N.W.2d 471 (Neb. 1964); Wolff v. Royal Ins. Co. of America, 472 N.W.2d 233 (S.D. 1991)).

         The burden is on the insurer to prove collusion urged as a defense. Iowa Mut. Ins. Co. of De Witt, Iowa v. Meckna, 180 Neb. 516, 144 N.W.2d 73, 81 (Neb. 1966). However, the insured may be required to make a prima facie showing that the settlement was entered into in good faith and that the amount of the settlement amount is reasonable. See Otteman v. Interstate Fire & Cas. Co., 172 Neb. 574, 111 N.W.2d 97, 102-03 (Neb. 1961) (" If an insurer waives its right to defend, this leaves the insured free to defend the action to judgment or, in good faith, to make such settlement as ordinary and reasonable prudence and caution might indicate to be advisable." ).[17]

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Met P& C contends it has made such a showing, and the court agrees.

         As required by the court's local rules, Met P& C's brief filed in support of its second motion for partial summary judgment includes a 33-paragraph " statement of material facts about which the moving party contends there is no genuine issue to be tried and that entitles the moving party to judgment as a matter of law." NECivR 56.1(a)(1). Westport's opposing brief includes an appropriate response to each paragraph. See NECivR 56.1(b)(1). In addition, Westport has included a separate, 57-paragraph " statement of material facts about which there is no dispute," and Met P& C has responded to each paragraph of this statement in its reply brief. However, Westport has moved to strike several of Met P& C's responses and has filed a sur-reply brief to address certain objections that were raised by Met P& C.[18]

         Upon review of the briefs and referenced materials, the court finds there is no genuine dispute regarding the following facts stated by Met P& C:

Pamela Siroky is and has been the President, manager and part-owner of Agency One since 1996. Siroky works and has always worked out of the David City, Nebraska office of Agency One. Before 1996, Siroky worked in the insurance business for 11 years.
From 1996 until 2012, Agency One's insurance industry errors and omissions coverage was provided by Westport.
On May 1, 2010, Agency One and Douglas Inlay entered into an Independent Agent Agreement.
After May 1, 20120, Inlay was appointed as an authorized agent with all of the carriers with whom Agency One had appointments to produce and write policies.
On or about December 7, 2010, while working for Agency One, Inlay submitted

Page 931

an application for a homeowner's property insurance policy to Met P& C on behalf of Patricia Potter and Sam Dedios (collectively " Potter" ). In the application, Inlay described the property to be insured as a one-story, 1500 square foot single family residential dwelling built in 1958.
The Potter policy was due to expire in December 2011, after Inlay had left the employ of Agency One. Despite the incorrect description of the property in the original application, Agency One facilitated the renewal of the Potter policy in December 2011. Because Met P& C was not advised of any inaccuracies in the original application that was filled out and submitted by Inlay, Met P& C renewed the Potter policy in December 2011 for an annual term.
On January 12, 2012, during the 2011-2012 term of the Potter policy, the Potter property was destroyed by fire.
Met P& C paid $244,263.00 on the Potter claim.
On April 2, 2012, Siroky submitted a " Professional Liability Claim Form" to Westport. Along with the form, Agency One included a March 30, 2012 claim letter from an attorney for Met P& C. The letter stated that, during the time period he was employed by Agency One, Inlay wrongfully issued a Metropolitan P& C homeowner's policy to Potter with a period of December 15, 2010 to December 10, 2011. The letter alleged that had Inlay accurately described the premises to be insured, Met P& C would not have issued the policy to Potter.
Westport acknowledged receipt of the claim by letter dated April 5, 2012. On May 11, 2012, Westport subsequently issued a declination of coverage.
On May 31, 2012, an attorney for Agency One forwarded to Westport a copy of the complaint filed in Metropolitan Property & Casualty Insurance Company v. Agency One Insurance, Inc. and Pamela A. Siroky, Civil # 12-cv-4050, in the United States District Court for the Northern District of Iowa (the " Met P& C Lawsuit" ).
The complaint in the Met P& C Lawsuit (i.e. the Iowa case) was brought only against Siroky and Agency One, and alleged that they were liable for Inlay's actions in improperly submitting an application to Met P& C for the Potter property. Specifically, the complaint alleged Agency One failed to adequately train, monitor and supervise their employees and producers in the investigation, application, binding and issuing of a Met P& C policy.
On August 28, 2012, Westport sent a declination of coverage letter regarding the Met P& C Lawsuit to the attorney for Agency One and Siroky and to Siroky directly.
This declination of coverage letter states, in part:
Westport respectfully declines coverage under the Policy, including any defense, obligations and any indemnity for any loss incurred in this action, including any settlement or judgment entered by the court, for the following reason.
The Claim letter alleges that Mr. Inlay bound the Potter policy when he was not licensed to do so. The Complaint alleges that Agency One and Ms. Siroky are vicariously liable for Inlay's issuance of policies he bound while not licensed, including the Potter policy. Therefore, coverage under the Policy is precluded by the Specified Individual Entity Exclusion.
In February of 2013, Ms. Siroky and Agency One brought the instant action against Westport for breach of contract arising out of Westport's decision to

Page 932

deny coverage, as well as a declaratory action.
On or about June 17, 2014, Agency One and Siroky assigned all rights, claims, interests, and causes of action they held pursuant to the Policy to Met P& C and, in particular, Westport's refusal to defend and indemnify Siroky and Agency One for the claims and causes of action that were made against them by Met P& C in the Met P& C Lawsuit. The rights, claims, interests and causes of action that were assigned included any claims for breach of contract, bad faith, breach of warranty of an implied duty of good faith and fair dealing, and breach of fiduciary duty (" the Assignment" ).
On June 20, 2014, a Notice of Acceptance of Offer to Confess Judgment pursuant to Federal Rule of Civil Procedure 68 was filed in the Met P& C Lawsuit in the amount of $261,620.90.[19]
The Confess Judgment of $261,620.90 was comprised of $244,263.00 for what Met P& C paid on the Potter claim and $17,357.90 for allocated costs, which included expenses associated with Met P& C's coverage investigation of the Potter claim. The coverage investigation required Met P& C's counsel to conduct two " examinations under oath" (EUO) during the adjustment of the Potter claim. The EUO's were conducted to aid in the investigation of the circumstances of the loss and to determine the circumstance surrounding the binding of the Potter policy.[20]

(Filing No. 162 at CM/ECF pp. 2-6, ¶ ¶ 1-18) (paragraph numbering and citations to record omitted).

Douglas Phillips represented Agency One and Ms. Siroky in the Met P& C Lawsuit in Iowa.
Mr. Phillips graduated from Pepperdine University Law School in 1980.
Mr. Phillips is licensed to practice law in Iowa and Nebraska.
Mr. Phillips has been a partner with the Klass Law Firm since 1991. His practice at the Klass Law Firm has primarily been insurance defense.
Agency One paid Mr. Phillips approximately $13,744.75 in attorney's fees and costs to defend the Met P& C Lawsuit.[21]
If the Met P& C Lawsuit did not settle, Mr. Phillips estimated that he would have billed between 75 and 100 additional hours to see the case though the end of trial.[22]

(Filing No. 162 at CM/ECF pp. 6-7, ¶ ¶ 22-27) (paragraph numbering and citations to record omitted).

Page 933

Mr. Phillips advised Ms. Siroky that " her risk was significant" and that " the longer this case lived, the more expensive it was going to be for her." [23]
Mr. Phillips believed the settlement was in Agency One's best interest.[24]

(Filing No. 162 at CM/ECF pp. 7-8, ¶ ¶ 31, 32 (paragraph numbering and citations to record omitted)).

David Dudley represented Agency One and Ms. Siroky in the instant coverage case before the assignment.
Mr. Dudley graduated from the University of Nebraska College of Law in 1989. He has spent his entire law career practicing at Baylor Evnen, becoming partner in the mid-1990's. He is licensed to practice law in Nebraska.
Mr. Dudley practices in the areas of personal injury defense; professional negligence defense, including insurance agent errors and omissions; agricultural torts; and workers' compensation. Mr. Dudley deemed the settlement amount reasonable " tak[ing] into consideration where [his] client found herself, facing the ongoing litigation in both states and the fact that she was looking at having to pay a judgment, potentially, for which she had no coverage.... [I]t was clear to [him] based on information [he] had that she could lose, and she would be responsible for that judgment personally." [25]

(Filing No. 162 at CM/ECF pp. 7-8, ¶ ¶ 28-30, 33 (paragraph numbering and citations to record omitted)).

         In the Iowa lawsuit, Met P& C filed a motion for partial summary judgment with respect to the claims alleged against Agency One only. The motion was denied by the district court on March 25, 2014, approximately three months before the case settled. In its memorandum opinion, the court found that " a reasonable jury could conclude that Inlay was not acting within the scope of his employment when he placed the Potter policy," which would defeat a vicarious liability claim based on Inlay's actions.[26] The court noted that " Inlay knew he was not allowed to place policies while his license was revoked or suspended and that doing so, while also misrepresenting those policies, was against the law." (Filing No. 166 at CM/ECF pp. 3-4, ¶ ¶ 4-6, 8, 10; Noyes Decl. (Filing No. 147-1), ¶ 10 & Ex. 1I (Filing No. 147-10 at CM/ECF p. 12).[27] The court also found

Page 934

there were genuine issues of a material fact as to whether Agency One was negligent in supervising Inlay, stating:

A reasonable jury could find that Agency One did not know or have reason to know of Inlay's actions. Agency One points out there were two licensed agents in the Sioux City office while Inlay's license was suspended or revoked who could have been selling policies. Inlay also needed the Met P& C access codes to perform his authorized, appropriate duties as an employee. Whether Agency One knew or should have known of Inlay's actions at the time he placed the misrepresented policy, and whether Agency One's allegedly-negligent supervision was the proximate cause of Met P& C's harm, are appropriate questions for a jury.

(Filing No. 166 at CM/ECF p. 5, ¶ 11; Filing No. 147-10 at CM/ECF p. 14). Finally, " [b]ecause [the district court could not] find as a matter of law that Agency One [was] vicariously liable for Inlay's misconduct, or directly liable for negligently supervising Inlay, [it could not] find as a matter of law that Agency One breached its contract with, or fiduciary duties to, Met P& C." (Filing No. 166 at CM/ECF p. 5, ¶ 12; Filing No. 147-10 at CM/ECF p. 14). The district court declined to address an argument that because Agency One and Met P& C had a contractual relationship, the " economic loss" rule precluded Met P& C from suing Agency One for negligence. (Filing No. 166 at CM/ECF p. 4, ¶ 7; Filing No. 147-10 at CM/ECF p. 12).

         The following facts regarding the settlement of the Iowa lawsuit, as stated by Westport, are not disputed by Met P& C:

After the summary judgment ruling, counsel for Met P& C circulated drafts of the offer to confess judgment and the acceptance of the offer to confess judgment, to Mr. Phillips, Mr. Dudley, and Charles Cavas, Met P& C's General Counsel.
Before Mr. Cavas would agree to execute and enter into the agreement, Mr. Cavas stated that he would " like to have bad faith counsel in place and consult with them."
Agency One, Ms. Siroky and Met P& C subsequently settled the lawsuit, without advising Westport or seeking its participation.
The parties executed a settlement agreement dated June 17, 2014, which included an assignment of Agency One and Ms. Siroky's rights, claims and interests against Westport.
The June 17, 2014 settlement agreement between Met P& C, Agency One and Ms. Siroky includes the following clauses ...

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