                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 19a0285n.06

                                           No. 18-3653

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT                                     FILED
                                                                                  May 31, 2019
 US HF CELLULAR COMMUNICATIONS, LLC, et al.,                  )               DEBORAH S. HUNT, Clerk
                                                              )
        Plaintiffs-Appellants,                                )
                                                              )       ON APPEAL FROM THE
 v.                                                           )       UNITED STATES
                                                              )       DISTRICT COURT FOR
 SCOTTSDALE INSURANCE COMPANY,                                )       THE SOUTHERN
                                                              )       DISTRICT OF OHIO
        Defendant-Appellee.                                   )
                                                              )



BEFORE: McKEAGUE, GRIFFIN, and NALBANDIAN, Circuit Judges.

       GRIFFIN, Circuit Judge.

       This is a lawsuit about a lawsuit. Plaintiffs purchased four directors and officers liability

insurance policies from defendant, who refused to defend them in a lawsuit in accordance with the

policies. It claimed that they failed to timely report the lawsuit as required under most of the

policies, and that one of the insurance applications they submitted contained a material

misrepresentation that voided coverage in another. Plaintiffs then brought this action alleging

breach of contract and bad faith. The district court granted summary judgment in defendant’s

favor. We affirm.

                                                I.

                                                A.

       Plaintiffs are four interrelated limited liability companies:            US HF Cellular

Communications, LLC (“USHFCC”); Virsenet, LLC; ShipCom, LLC; and Global Wideband HF
No. 18-3653, US HF Cellular Commc’ns v. Scottsdale Ins. Co.


Net LLC (“Global”). Virsenet owned USHFCC in its entirety, and USHFCC in turn owned 80%

of ShipCom. All four plaintiffs operated out of the same office in Laguna Beach, California, and

shared the same office manager. Relevant to this appeal, Edward Bayuk was, at various points, a

“director” of USHFCC, the “manager” of USHFCC, a “director” of Global, and the “manager” of

ShipCom. Jon Richmond was the chief operating officer (“COO”) of USHFCC, chief executive

officer (“CEO”) of ShipCom, and COO of Global.

       ShipCom operated a maritime communications network, using high frequency (“HF”)

radio waves, in Mobile, Alabama. As a Delaware Chancellor summarized in related litigation,

       In early 2012, [USHFCC] acquired an 80% interest in ShipCom . . . in order to
       capture value inherent in a waiver ShipCom had recently obtained from the Federal
       Communications Commission (the “Waiver”), which allowed ShipCom to use a
       particular maritime frequency spectrum, typically restricted to maritime use, for
       emergency land-based communications. The Waiver was granted exclusively to
       ShipCom and, by all accounts, it is quite valuable.

US HF Cellular Commc’ns, LLC v. Stiegler, No. CV 11363-VCS, 2017 WL 4548461, at *1 (Del.

Ch. Oct. 12, 2017) (footnotes omitted). ShipCom’s founders, Robert S. Block and Rene Stiegler,

III, retained the remaining ownership interest in ShipCom. Id.

       “All was well at ShipCom until May 2015, when Block and Stiegler discovered that

[USHFCC] was making plans to exploit the Waiver outside of ShipCom and to exclude them from

the potential profits. They filed suit . . . alleging various tort theories” in the Circuit Court of

Mobile County, Alabama. Id. See Stiegler v. ShipCom, LLC, No. 2-CV-2015-901469 (Ala. Cir.

Ct.) (the “Alabama lawsuit”). Block and Stiegler named USHFCC, ShipCom, Virsenet, and Bayuk

as defendants in the original complaint, serving them between June 10 and June 17 of 2015. They

subsequently added Richmond as a defendant, serving him on December 8, 2015.

       The third amended complaint added Global as a defendant, and it was served on April 14,

2016. The allegations against Global stemmed from its purchase of Globe Wireless Radio Services

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No. 18-3653, US HF Cellular Commc’ns v. Scottsdale Ins. Co.


Inc., a direct competitor of ShipCom, and its subsequent “Network Management Agreement” with

USHFCC and ShipCom. According to Block and Stiegler, that agreement “transferred to Global

325 ShipCom [high frequency radio] Channels purchased for ShipCom after USHFCC acquired

its 80% interest in ShipCom.” The complaint alleged that this arrangement—and the direct

competition between Global and ShipCom that it created—constituted a conflict of interest, self-

dealing, excessive compensation, usurpation of ShipCom’s corporate opportunity, and “breach of

fiduciary duties of loyalty, due care[,] and good faith and fair dealing.”

                                                  B.

       Like many businesses, plaintiffs carried “business and management indemnity” insurance

for situations like this. This type of insurance is often called “directors and officers” or “D&O”

insurance. See Telxon Corp. v. Fed. Ins. Co., 309 F.3d 386, 387 (6th Cir. 2002). It typically

provides direct coverage to the directors and officers of a business entity for legal claims brought

against them and “coverage to the insured company to the extent that it is permitted or required to

indemnify the directors and officers.” 23-146 Appleman on Insurance Law & Practice Archive

§ 146.2(B)(1). The four policies at issue here provided these types of coverage, along with direct

coverage to the entities themselves.

       Plaintiffs purchased the policies from defendant, Scottsdale Insurance Company, a wholly

owned subsidiary of Nationwide Mutual Insurance Company. Scottsdale issued the policies as a

“surplus-lines” insurer. “Surplus lines” or “excess lines” insurance is “[i]nsurance with an insurer

that is not licensed to transact business within the state where the risk is located.” Black’s Law

Dictionary 925 (10th ed. 2014). It is “often a source of last resort for the placement of liability or

property insurance on unusual risks . . . that do not fall within the general parameters of traditional

markets.” 1-2 Appleman on Insurance Law & Practice Archive § 2.17 (2d ed. 2011). Plaintiffs


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No. 18-3653, US HF Cellular Commc’ns v. Scottsdale Ins. Co.


were located, for the most part, in California, and Scottsdale was not licensed to sell insurance

there directly.    So, Scottsdale instead issued the policies through its New Jersey-based

underwriting manager, E-Risk Services, LLC (“E-Risk”).

        USHFCC purchased three consecutive yearlong policies from Scottsdale, with coverage

beginning on July 31, 2013 (collectively, the “US HF Policies”). They covered USHFCC,

Virsenet, and ShipCom. Prior to obtaining coverage, USHFCC submitted an application for the

first policy and later, a renewal application for each of the other two.1 Bayuk filled out all three

applications. Scottsdale also issued a business and management indemnity policy to Global and

Terlingua, LLC, which owned 60% of Global, for 2015–16 (the “Global Policy”). Bayuk

completed the application for that policy as well. All the applications were incorporated into the

policies once they were issued.

        On January 8, 2016, USHFCC notified Scottsdale of the Alabama lawsuit. Scottsdale

denied coverage under the US HF Policies later that month, invoking a clause that required any

claims to be reported to it “in no event later than sixty (60) days after the end of the Policy Period.”

The previous policy period had ended on July 31, 2015. Global reported the lawsuit on October

11, 2016, and Scottsdale denied coverage under the Global Policy two months later.2 Ultimately,

Scottsdale did not defend or pay for the defense of plaintiffs or any of their officers, directors, or

employees in the Alabama lawsuit.




        1
         USHFCC, Virsenet, and ShipCom were listed under “Name of Parent Company” in the
original and first renewal application. In the second renewal application, in which the form was
slightly different, Global and Terlingua, LLC were also listed under “Name of Applicant.”
        2
         While the parties have stipulated that Scottsdale denied coverage and sent letters to
plaintiffs on the dates discussed, they did not make these letters a part of the record below, so it is
not clear what reason Scottsdale gave at the time for denying coverage under the Global Policy.
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No. 18-3653, US HF Cellular Commc’ns v. Scottsdale Ins. Co.


                                                 C.

       Plaintiffs sued Scottsdale in the United States District Court for the Southern District of

Ohio, alleging breach of contract under the US HF and Global Policies and breach of the implied

covenant of good faith and fair dealing. They also sought declaratory relief. After the parties

submitted their Rule 26(f) report, the magistrate judge entered a preliminary pretrial order setting

several deadlines and directing discovery. Over plaintiffs’ objection, the magistrate judge limited

discovery only to the issue of coverage, precluding the parties from taking discovery solely related

to the bad-faith claims. The parties eventually stipulated to several facts, and the authenticity and

accuracy of several documents.

       Following discovery, Scottsdale moved for summary judgment, while plaintiffs filed two

separate motions for partial summary judgment—one by Global and one by USHFCC, Virsenet,

and ShipCom. The district court denied plaintiffs’ motions and granted Scottsdale’s. US HF

Cellular Commc’ns, LLC v. Scottsdale Ins. Co., No. 2:17-CV-261, 2018 WL 2938388, at *1 (S.D.

Ohio June 12, 2018) (hereinafter “USHFCC”). The court found that USHFCC, Virsenet, and

ShipCom failed to timely report the Alabama lawsuit to Scottsdale, “which is a condition

precedent” to coverage under the US HF Policies. Id. at *10. As for the Global Policy, the district

court determined that a material misrepresentation contained in Global’s insurance application

applied to bar coverage. Id. at *11–12. On appeal, plaintiffs challenge the denial of their motions

for partial summary judgment, the grant of defendant’s motion for summary judgment, and the

magistrate judge’s limitation of discovery in the preliminary pretrial order.

                                                 II.

       We review de novo the district court’s rulings on the motions for summary judgment. Keith

v. Cty. of Oakland, 703 F.3d 918, 923 (6th Cir. 2013). Summary judgment is proper “if the movant


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No. 18-3653, US HF Cellular Commc’ns v. Scottsdale Ins. Co.


shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is “genuine” if the evidence permits a

reasonable jury to return a verdict in favor of the nonmovant, and a fact is “material” if it may

affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Viewing

the evidence in a light most favorable to the nonmoving party, our task is to determine “whether

the evidence presents a sufficient disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.” Id. at 251–52.

                                                III.

        Before tackling the merits, we address the parties’ choice-of-law dispute. The policies do

not specify which state’s substantive law applies. Plaintiffs argue that Ohio law should apply,

while Scottsdale argues that California law should apply. After observing that this was “a difficult

case and a close call,” the district court found that California law applied and that “Ohio does not

have a significant interest in this case.” USHFCC, 2018 WL 2938388, at *9. “We review the

district court’s choice of law decision de novo.” Northland Ins. Co. v. Guardsman Prod., Inc.,

141 F.3d 612, 616 (6th Cir. 1998).

        “In a diversity case, we apply the choice-of-law principles of the forum State, here Ohio.”

Sims Buick-GMC Truck, Inc. v. Gen. Motors LLC, 876 F.3d 182, 185 (6th Cir. 2017). The Ohio

Supreme Court has adopted § 188 of the Second Restatement of Conflict of Laws. See Nationwide

Mut. Ins. Co. v. Ferrin, 487 N.E.2d 568, 569 (Ohio 1986) (per curiam). It provides, in relevant

part:

        (1) The rights and duties of the parties with respect to an issue in contract are
        determined by the local law of the state which, with respect to that issue, has the
        most significant relationship to the transaction and the parties under the principles
        stated in § 6.



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No. 18-3653, US HF Cellular Commc’ns v. Scottsdale Ins. Co.


       (2) In the absence of an effective choice of law by the parties (see § 187), the
       contacts to be taken into account in applying the principles of § 6 to determine the
       law applicable to an issue include:
               (a) the place of contracting,
               (b) the place of negotiation of the contract,
               (c) the place of performance,
               (d) the location of the subject matter of the contract, and
               (e) the domicil, residence, nationality, place of incorporation and place of
               business of the parties.
       These contacts are to be evaluated according to their relative importance with
       respect to the particular issue.

Restatement (Second) of Conflict of Laws § 188 (1971) (hereinafter “Restatement”).

       “Underlying the factors set forth in section 188 are the principles enunciated in section 6

of the Restatement.” Int’l Ins. Co. v. Stonewall Ins. Co., 86 F.3d 601, 605 (6th Cir. 1996). It

provides as follows:

       (1) A court, subject to constitutional restrictions, will follow a statutory directive of
       its own state on choice of law.
       (2) When there is no such directive, the factors relevant to the choice of the
       applicable rule of law include
               (a) the needs of the interstate and international systems,
               (b) the relevant policies of the forum,
               (c) the relevant policies of other interested states and the relative interests
               of those states in the determination of the particular issue,
               (d) the protection of justified expectations,
               (e) the basic policies underlying the particular field of law,
               (f) certainty, predictability and uniformity of result, and
               (g) ease in the determination and application of the law to be applied.

Restatement at § 6.




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No. 18-3653, US HF Cellular Commc’ns v. Scottsdale Ins. Co.


       Several factors lean toward neither California nor Ohio.3 The Alabama lawsuit was located

(unsurprisingly) in Alabama, which is where plaintiffs requested that Scottsdale defend them. At

the summary judgment hearing, plaintiffs’ counsel stated that, other than Bayuk and Richmond,

“[t]he rest of my clients are -- the natural persons reside in New York, one in Connecticut kind of

spread between New York and Connecticut.” Plaintiffs also have a connection to Delaware, where

some of them were formed, and Block and Stiegler served USHFCC and Virsenet there through

their registered agents. They served ShipCom in Mobile, Alabama. The 2015–16 US HF Policy

lists USHFCC as having a mailing address in Oklahoma. The underwriting agent for the policies,

E-Risk, is located in New Jersey. The US HF Policies provided that notices of claims and other

notices should be sent to Scottsdale at an address in New York City. And Scottsdale’s principal

place of business—as specifically alleged in plaintiffs’ complaint—is in Arizona. Also, the

policies provide that “[c]overage under this Policy shall extend to Wrongful Acts taking place or

Claims made anywhere in the world,” which does not help to narrow it down.

       There are some connections to Ohio, namely, it being Scottsdale’s state of incorporation.

Plaintiffs put great weight on the policies’ listing of an address in Columbus, Ohio as Scottsdale’s

“Home Office,” while having previously acknowledged that its principal place of business is in

Arizona. By all accounts, Scottsdale is licensed to do business in Ohio and indeed does conduct

business there. Plaintiffs also emphasize that Scottsdale’s parent company, Nationwide Mutual




       3
         As the district court correctly noted, several of the factors are of little help as applied to
this case. For example, “‘the place of contracting is a relatively insignificant contact’ and the place
of negotiation ‘is less importan[t] when there is no one single place of negotiation and agreement,
as for example, when the parties do not meet but rather conduct their negotiations from separate
states by mail or telephone.’” USHFCC, 2018 WL 2938388, at *7 (quoting Restatement at § 188
cmt. e). Here the parties did just that, via email.
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No. 18-3653, US HF Cellular Commc’ns v. Scottsdale Ins. Co.


Insurance Company, is based in Ohio. But this carries little weight because Nationwide is not a

party in this lawsuit, nor is it otherwise involved in the case.

       California’s connections, in contrast, are more significant in both quality and quantity.

Bayuk and Richmond, plaintiffs’ corporate officers, resided in California. When asked to list the

applicants’ addresses in the insurance applications, Bayuk provided the Laguna Beach, California

address in each one, for all four plaintiffs. The policies themselves listed USHFCC’s “Principal

Address” as being in California, and the “Civil Cover Sheet” to the complaint in this lawsuit listed

Orange County, California as its “County of Resident.” Plaintiffs shared an office manager, who

worked out of that same office on their behalf. Additionally, “[a] D&O insurance policy is a

unilateral contract—the insured has already performed by paying the premium in exchange for the

insurance company’s promise to provide insurance.” Combs v. Int’l Ins. Co., 354 F.3d 568, 599–

600 (6th Cir. 2004). Plaintiffs’ counsel admitted at the summary judgment hearing that “the

premium emanated from California initially.”

       The weight of these connections to California notwithstanding, plaintiffs make a novel

argument based on the type of insurance at issue here. They highlight that Scottsdale was a

surplus-lines insurance carrier in California and not licensed to transact business there directly.

Plaintiffs assert that “[i]t stands public policy on its head to let a surplus lines insurer escape its

responsibilities by borrowing the law of a state where it chose not to do business and subject itself

to regulation.” But plaintiffs cite no authority in support of this argument. Moreover, Scottsdale

did not “avoid[] regulation by California” entirely, as plaintiffs claim. As with other types of

insurance, California regulates surplus lines insurance, and Scottsdale is required to follow

California law in order to issue surplus lines policies to Californians. See Cal. Ins. Code § 1761.




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No. 18-3653, US HF Cellular Commc’ns v. Scottsdale Ins. Co.


For example, surplus lines insurance premiums in California are subject to a three percent tax.

Silvers v. Bd. of Equalization, 116 Cal. Rptr. 3d 355, 357 (Cal. Ct. App. 2010).

        Beyond that, the policies include a “California Policyholder Notice,” listing the address

and phone number of the California Department of Insurance’s Consumer Affair Unit, and a

“California Surplus Lines Notice . . . to California Insured” informing the insureds of the risks

involved in purchasing surplus lines insurance. The 2015–16 US HF Policy includes a supplement

titled “Amendatory Endorsement – California.”            Additionally, the policies make clear that

plaintiffs agreed that the “Commissioner of Insurance” in San Francisco, California, “is authorized

and directed to accept service of process on [their] behalf,” and after doing so, “mail the process

or a true copy to” one Phyllis Thompson of “Trans Cal Associates,” located in Sacramento. While

plaintiffs contend that “[t]he only reasonable inference for a policyholder to draw from reading the

[US HF] Policies is to assume they were made and performable in Ohio,” that statement fails to

persuade when “California” is plastered all over the policies.

        California’s relevant contacts under the Restatement are considerably stronger and more

numerous than Ohio’s in this case, and we agree with the district court’s determination that

California law applies.

                                                  IV.

        Turning to the merits, we address the US HF Policies first. “Insurance policies are

construed under the same rules that govern the interpretation of other contracts. Accordingly, [a]

policy must be interpreted to give effect to the mutual intent of the parties at the time of contracting,

and such intent is ascertained, if possible, from the clear and explicit language of the contract.” St.

Paul Mercury Ins. Co. v. Frontier Pac. Ins. Co., 4 Cal. Rptr. 3d 416, 424 (Cal. Ct. App. 2003)

(internal quotation marks omitted), as modified on denial of reh’g (Aug. 28, 2003). “[C]ourts must


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No. 18-3653, US HF Cellular Commc’ns v. Scottsdale Ins. Co.


interpret contracts as a whole and in a manner that does not render any clause or provision

superfluous.” Tri-Union Seafoods, LLC v. Starr Surplus Lines Ins. Co., 88 F. Supp. 3d 1156, 1164

(S.D. Cal. 2015); see R.W.L. Enters. v. Oldcastle, Inc., 226 Cal. Rptr. 3d 677, 682 (Cal. Ct. App.

2017). Additionally, “[a]n insurance company has the right to limit the coverage of a policy issued

by it and when it has done so, the plain language of the limitation must be respected.” Nat’l Ins.

Underwriters v. Carter, 551 P.2d 362, 366 (Cal. 1976) (citation omitted); see Pac. Emp’rs Ins. Co.

v. Superior Court, 270 Cal. Rptr. 779, 784 (Cal. Ct. App. 1990).

       As the district court observed, “[t]here is no dispute that the type of claims at issue would

be covered under the US HF Policies if they were made after the inception of the policies, timely

reported, and not barred by any exclusion.” USHFCC, 2018 WL 2938388, at *10. Scottsdale

denied coverage under the policies primarily because USHFCC, Virsenet, and ShipCom failed to

timely report the Alabama lawsuit, and the district court granted summary judgment in favor of

Scottsdale for this reason. Id. at *10–11. The relevant language from the policies provides that

“[t]he Insureds shall, as a condition precedent to their rights to payment under this Coverage

Section only, give Insurer written notice of any Claim as soon as practicable, but in no event later

than sixty (60) days after the end of the Policy Period.” The policies provide several definitions

of the word “Claim.” They include a “written demand against any Insured for monetary damages

or non-monetary or injunctive relief” and “a civil proceeding against any Insured seeking monetary

damages or non-monetary or injunctive relief, commenced by the service of a complaint or similar

pleading.” “A Claim shall be deemed to have been first made against the Insureds on the date an

Insured who is an executive officer, director or general counsel becomes aware of such Claim.”

       The US HF Policies are “claims-made-and-reported” policies, which require “a claim to be

made against the insured during the specified policy period” and “that a claim be reported [to the


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No. 18-3653, US HF Cellular Commc’ns v. Scottsdale Ins. Co.


insurer] during the policy period.” PIMG, Inc. v. Carolina Cas. Ins. Co., No. 09-CV-2022 BEN

(CAB), 2010 WL 11594809, at *3 (S.D. Cal. Mar. 5, 2010) (emphases added); see Centurion Med.

Liab. Protective Risk Retention Grp. Inc. v. Gonzalez, 296 F. Supp. 3d 1212, 1217 (C.D. Cal.

2017). California law distinguishes claims-made-and-reported policies from “occurrence policies,

in which coverage is triggered by events that occur within the policy period, even if they lead to

claims years after the policy period.” Pension Tr. Fund for Operating Eng’rs v. Fed. Ins. Co., 307

F.3d 944, 955 (9th Cir. 2002) (emphasis omitted). Here, the policy language makes clear that the

reporting requirement is “a condition precedent” to coverage. “A condition precedent refers to an

act, condition or event that must occur before the insurance contract becomes effective or binding

on the parties.” N. Am. Capacity Ins. Co. v. Claremont Liab. Ins. Co., 99 Cal. Rptr. 3d 225, 240

(Cal. Ct. App. 2009) (emphasis omitted).

       Plaintiffs advance multiple arguments seeking to excuse their untimely reporting of the

Alabama lawsuit. First, each policy included a “Continuity Date” of July 31, 2013.4 According

to plaintiffs, “[t]his means the Insured reasonably expects long-tail coverage for claims made and

reported after the Continuity Date so long as the insured maintains coverage with the same

insurance company.” Second, plaintiffs cite the policies’ definitions of the words “Policy” and

“Application” for the proposition “that the Parties intended the renewal policy to simply extend

the expiration date of the earlier policies.” “Policy” is defined as “collectively, the Declarations,

the Application, this policy form and any endorsements,” and “application” means

       all applications, including any attachments thereto, and all other information and
       materials submitted by or on behalf of the Insureds to the Insurer in connection with
       the Insurer underwriting this Policy or any policy of which this Policy is a renewal



       4
        The policies unhelpfully define this term as “the date set forth in Item 3. of the
Declarations relating to this Coverage Section.”
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No. 18-3653, US HF Cellular Commc’ns v. Scottsdale Ins. Co.


       or replacement. All such applications, attachments, information, materials and
       documents are deemed attached to and incorporated into this Policy.

Because all previous applications were incorporated into each policy as a whole, plaintiffs argue

that it is reasonable to expect that the policy’s renewal would also incorporate the coverage of

previous policies, “and would therefore permit the reporting of a Claim during the last [US HF]

Policy for claims arising earlier.”

       Plaintiffs thus contend that the two renewals of the original policy created continuous

coverage spanning across all three. But “courts have consistently recognized that, absent an

agreement to the contrary, the renewal of a policy does not extend a policy’s reporting period.”

PIMG, Inc., 2010 WL 11594809, at *2 (collecting authority). And plaintiffs’ argument does not

square with the Policies’ plain language. Each policy has a specific “Policy Period,” which “means

the period from the effective date and hour of the inception of this Policy to the Policy expiration

date and hour as set forth” on the first page of each policy. For example, the second policy

provided: “Policy Period: From 7/31/2014 to 7/31/2015 12:01 A.M. local time at Principal

Address shown above.” All three policies contain the same language requiring that plaintiffs report

the existence of any claim “in no event later than sixty (60) days after the end of the Policy Period.”

And each policy defines its “Policy Period” differently, resulting in separate reporting periods with

separate deadlines for timely reporting claims under each policy. This indicates that coverage

under each policy is discrete and not continuous.

       Moreover, when the policies mean to discuss the effects of renewals, previous policies, and

future policies, they do so explicitly. For example, the 2014–15 and 2015–16 Policies each have

a “Renewal N[umber]” listed on the first page. The policies also contain a clause excluding from

coverage any claim involving “any Wrongful Act, fact, circumstance or situation which has been

the subject of any written notice given under any other policy of which this Policy is a renewal or

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No. 18-3653, US HF Cellular Commc’ns v. Scottsdale Ins. Co.


replacement or which it succeeds in time.” And while plaintiffs point out that each policy contains

the same “Continuity Date” of July 31, 2013, the policies use that term to limit their coverage, not

extend or connect it. The policies exclude from coverage any claim involving “any prior or

pending litigation or administrative or regulatory proceeding, demand letter or formal or informal

governmental investigation or inquiry filed or pending on or before the Continuity Date.”

       The policies’ plain language thus precludes plaintiffs from seeking coverage related to the

Alabama lawsuit because they failed to timely report it to Scottsdale. Plaintiffs request that we

rewrite the policies rather than give effect to the parties’ intent therein. This is not well taken.5

For these reasons, we agree that the late-notice exclusion applies here to bar coverage for claims

related to the Alabama lawsuit. Accordingly, we affirm the district court’s grant of summary

judgment in favor of Scottsdale with respect to the US HF Policies.

                                                 V.

       We now address the Global Policy. The district court granted summary judgment in favor

of Scottsdale with respect to the Global Policy after finding that its “Application Exclusion” barred

coverage for the Alabama lawsuit. USHFCC, 2018 WL 2938388, at *11. Specifically, the Global

Policy contained the following language:

       In the event the Application, including materials submitted or required to be
       submitted therewith, contains any misrepresentation or omission made with the
       intent to deceive, or contains any misrepresentation or omission which materially
       affects either the acceptance of the risk or the hazard assumed by the Insurer under

       5
         Plaintiffs raise several other arguments attacking the late-notice exclusion’s application.
They argue that (1) their failure to timely report the Alabama lawsuit to Scottsdale was not a
material breach of the policy because Scottsdale gave an additional reason for denying coverage,
(2) there was no prejudice to Scottsdale caused by any late reporting, and (3) that Scottsdale should
have defended Global under the US HF Policies, as Global was added onto the 2015–16 Policy.
But plaintiffs forfeited these arguments by raising them, respectively, for the first time on appeal,
in reply, and at oral argument. See United States v. Huntington Nat. Bank, 574 F.3d 329, 331 (6th
Cir. 2009); Armstrong v. City of Melvindale, 432 F.3d 695, 700 (6th Cir. 2006); United States v.
Jenkins, 871 F.2d 598, 602 n.3 (6th Cir. 1989).
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No. 18-3653, US HF Cellular Commc’ns v. Scottsdale Ins. Co.


       this Policy, this Policy, including each and all Coverage Sections, shall not afford
       coverage to the following Insureds for any Claim alleging, based upon, arising out
       of, attributable to, directly or indirectly resulting from, in consequence of, or in any
       way involving, any untruthful or inaccurate statements, representations or
       information:
              a.      any Insured who is a natural person and who knew the facts
                      misrepresented or the omissions, whether or not such individual
                      knew of the Application, such materials, or this Policy;
              b.      any Company or Sponsor Company to the extent it indemnifies any
                      Insured referred to in subsection a. above; and
              c.      any Company, Sponsor Company, Plan, Employee Benefit Plan, or
                      any other entity that is an Insured, if any past or present chief
                      executive officer, chief financial officer, general counsel, risk
                      manager or human resources director (or equivalent positions) of the
                      Parent Company knew the facts misrepresented or the omissions,
                      whether or not such individual knew of the Application, such
                      materials, or this Policy.
       With respect to any statement, representation or information contained in the
       Application, or in the materials submitted or required to be submitted therewith,
       and solely with respect to the above exclusion, no knowledge possessed by any
       Insured who is a natural person shall be imputed to any other Insured who is a
       natural person.

(Emphases added).

       Bayuk executed the application for the Global Policy on August 25, 2015. The application

asked the following question:

       Within the last three (3) years, has the Applicant or any person proposed for this
       insurance in his or her capacity as an employee, officer, or director of the Applicant
       or another entity been the subject of or involved in any:
       a.     litigation, civil, arbitration, administrative or criminal proceeding, civil or
              criminal charge or hearing, or a written demand seeking monetary or non-
              monetary damages?




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No. 18-3653, US HF Cellular Commc’ns v. Scottsdale Ins. Co.


Bayuk checked the box labeled “Yes” next to this “prior litigation question.” Six days later, Bayuk

executed a revised application on behalf of Global, this time checking the box labeled “No” next

to that question.6

       According to Scottsdale, this changed answer was a material misrepresentation because by

the time Bayuk submitted the revised application—in late August of 2015—Block and Stiegler

had already filed their original complaint, named Bayuk, USHFCC, Virsenet, and ShipCom as

defendants, and served all of them. In addition to receiving notice of the lawsuit by service of the

complaint, Bayuk attended a meeting of USHFCC’s board of directors on July 23, 2015, during

which Richmond “updated the Board on the status of the litigation commenced against the

Company and others by Bob Block and Rene Stiegler and the recommendations of the Company’s

counsel as to the Company’s response thereto.” Thus, Scottsdale contends that Bayuk also had

actual knowledge of the Alabama lawsuit when he executed the revised application. Global resists

this on multiple fronts.

                                                 A.

        Global argues that the prior litigation question is ambiguous and states that the ambiguities

in an insurance policy are resolved against the insurer in favor of the insured. Specifically, Global

notes that the term “another entity” (which appears in that question) is not defined in the policy

and asserts that “[i]t is entirely reasonable to read the Prior Litigation Question as asking about

entities applying for insurance.” Only Global and Terlingua, LLC were applying for insurance

here, and they had not yet been sued in the Alabama lawsuit, so under Global’s reading, the “No”


       6
        In its reply brief, Global asserts that “Mr. Bayuk answered ‘yes’ because he had been sued,
but someone (possibly, the broker) changed the answer to ‘no’”, apparently forgetting it had
previously stipulated that “Mr. Bayuk executed a revised Application for Business and
Management Indemnity Insurance on behalf of Global Wideband and Terlingua LLC dated August
25, 2015.”
                                                -16-
No. 18-3653, US HF Cellular Commc’ns v. Scottsdale Ins. Co.


answer would have been truthful. The district court rejected this interpretation because it “would

render the addition of ‘another entity’ superfluous—‘another entity’ would always fall under the

‘Applicant’ umbrella.” Id.

       Global responds that this is not necessarily the case because “there are entities which would

be relevant to coverage that do not fall within the definition of Applicant.” Here, Global notes that

the policy also provided coverage related to “Outside Entities,” which are defined as “any non-

profit [and tax-exempt] company . . . in which any of the Directors and Officers is a director,

officer, trustee, governor, executive director or similar position of such non-profit company” or

“any other company specifically identified by endorsement to this Policy.” Because “the Global

Policy contemplates coverage for directors and officers in their capacity as such for entities aside

from the Applicant,” Global claims that interpreting the term “another entity” to mean “other

entities applying for insurance” does not render it superfluous.

       This interpretation breaks down when viewing the prior litigation question “in the context

of the policy as a whole.” See St. Paul Mercury Ins. Co., 4 Cal. Rptr. 3d at 424. The Global Policy

provides a specific, detailed definition of the term “Outside Entities.” It makes little sense for the

policy to specifically define a term in this way and use that term throughout the policy, but then

also refer to it by using a different, undefined term. If Scottsdale intended to limit the scope of the

prior litigation question to cover only the applicant and “Outside Entities,” “it surely could have

used that term; its failure to do so suggests that it was referring to something else.” United States

v. Oliveras, 905 F.2d 623, 629–30 (2d Cir. 1990), superseded by statute as stated in United States

v. Mazza, 503 F. App’x 9, 11 (2d Cir. 2012) (summary order). The district court interpreted the

term “another entity” as “mean[ing] any other entity.” USHFCC, 2018 WL 2938388, at *12. This




                                                 -17-
No. 18-3653, US HF Cellular Commc’ns v. Scottsdale Ins. Co.


interpretation is the better one; it remains true to the plain meaning of the words and makes sense

when viewed in context of the policy as a whole.

       These contours of the prior litigation question’s scope make sense because they home in

on the type of information that would be relevant to an insurance company’s decision of whether

to issue a D&O policy. As the district court explained, “[i]f the insurer knows, for example, that

one officer or director has a history of being sued for business-related actions at previous

companies that employed him, the insurer may not want to insure the proposed insured company,

for fear that the particular employees’ [sic] actions will lead to another suit.” Id. Any person who

has seen his car insurance rates rise after being involved in a traffic accident understands this

principle. This provides further support to the interpretation of “another entity” as “mean[ing] any

other entity.” Because the prior litigation question is not susceptible to more than one reasonable

interpretation, it is not ambiguous as a matter of law.

                                                 B.

       Global also contends that Bayuk’s revised answer of “No” was in fact truthful. At the

time he executed the revised Global application, Block and Stiegler had sued Bayuk in his

capacity as “managing member” of Virsenet and “purported manager” of ShipCom, but not as an

“employee, officer, or director” as the prior litigation question asks. Only after the Global

application’s execution did Block and Stiegler sue Bayuk in his capacity as the “President of

ShipCom” (in the second amended complaint), and as a “director” of USHFCC and Global (in

the fourth amended complaint).

       Scottsdale argues that Global forfeited this argument by not raising it in the district court.

Armstrong, 432 F.3d at 699–700.         Global does not dispute this failure, but rather attacks

Scottsdale’s argument as “hyper-technical” and declares that enforcing the forfeiture rule here


                                                -18-
No. 18-3653, US HF Cellular Commc’ns v. Scottsdale Ins. Co.


“would lead to a grossly inequitable result in a case where Scottsdale can show no adverse

reliance.” Global avers that “[w]ithout the submission of corporate formation documents, bylaws,

or other documents, neither Scottsdale nor the district court had any evidence to conclude that a

lawsuit against Mr. Bayuk in his capacity as a ‘managing member’ or ‘manager’ of Virsenet and

ShipCom constituted a suit against Mr. Bayuk in his capacity as an ‘employee, officer, or director’

of an entity.” Scottsdale responds that this is exactly the point, and that “[i]t would be particularly

unjust to allow Appellants to first raise this issue on appeal and then simultaneously criticize

Scottsdale for failing to introduce evidence probative to that issue or attempt to draw a negative

inference from the lack of any record evidence on that issue.”

       We agree with Scottsdale. Entertaining Global’s argument now would encourage the type

of behavior that the forfeiture rule seeks to prevent. See Scottsdale Ins. Co. v. Flowers, 513 F.3d

546, 552 (6th Cir. 2008) (“[T]he rule ensures fairness to litigants by preventing surprise issues

from appearing on appeal.”). Thus, this is not the “rare case” in which a forfeiture should be

excused. Cf. Jones Bros., Inc. v. Sec’y of Labor, 898 F.3d 669, 677 (6th Cir. 2018).

                                                  C.

       Next, Global argues that the “No” answer was not material. The Global Policy makes clear

that the application exclusion only applies if the misrepresentation or omission was “made with

the intent to deceive, or . . . materially affects either the acceptance of the risk or the hazard

assumed by the Insurer under” the policy. Global insists that the district court’s grant of summary

judgment was inappropriate because “Scottsdale did not submit any evidence to establish that

Scottsdale would not have accepted the risk or the hazard assumed by Scottsdale under the Global

Policy but for the answer to the Prior Litigation Question in the second Global Application.”

Global also points out that Scottsdale had already decided to insure it under the 2015–16 US HF


                                                 -19-
No. 18-3653, US HF Cellular Commc’ns v. Scottsdale Ins. Co.


Policy, and that Bayuk had been insured under all three US HF Policies. And the renewal

applications for the 2014–15 and 2015–16 US HF Policies did not include a prior litigation

question.7 According to Global, because Bayuk and Global were already insured, the “No” answer

could not have “materially affect[ed] either the acceptance of the risk or the hazard assumed by

the Insurer under [the Global] Policy”, and Scottsdale confirmed this belief by choosing not to ask

about prior litigation in the renewal application that—for the first time—added Global to the US

HF Policies.

       The problem with Global’s argument is that the Global Policy addresses materiality in

explicit terms:

       By acceptance of this Policy, the Insureds agree that:

                  1.   the statements in the Application are their representations, that such
                       representations shall be deemed material to the acceptance of the
                       risk or the hazard assumed by Insurer under this Policy, and that this
                       Policy and each Coverage Section are issued in reliance upon the
                       truth of such representations; and
                  2.   in the event the Application, including materials submitted or
                       required to be submitted therewith, contains any misrepresentation
                       or omission made with the intent to deceive, or contains any
                       misrepresentation or omission which materially affects either the
                       acceptance of the risk or the hazard assumed by Insurer under this
                       Policy, this Policy, including each and all Coverage Sections, shall
                       be void ab initio with respect to any Insureds who had knowledge
                       of such misrepresentation or omission.

(Emphases added). The district court held that this language controls and that the “No” answer to

the prior litigation question was material because it was a statement made in the Global application.

USHFCC, 2018 WL 2938388, at *12.



       7
         The renewal application for the 2014–15 US HF Policy did ask whether, in the preceding
five years, “the company [has] been subject to or suffered any losses or litigation from any” breach
of security, technology or extortion threat, violation of privacy laws, or unauthorized use of
personal information. But that question plays no role in this appeal.
                                                -20-
No. 18-3653, US HF Cellular Commc’ns v. Scottsdale Ins. Co.


        Global attempts to dismiss this language by characterizing it as a “boiler plate recitation in

the policy that everything submitted was material” and stating that “[c]alling a table a chair does

not make it a chair”. But an insurance policy “must be interpreted to give effect to the mutual

intent of the parties at the time of contracting, and such intent is ascertained, if possible, from the

clear and explicit language of the contract.” St. Paul Mercury Ins. Co., 4 Cal. Rptr. 3d at 425

(internal quotation marks omitted). This provision, under which the “No” answer to the prior

litigation question falls, is about as “clear and explicit” as it gets. It controls here, and we enforce

the parties’ agreement that the statements in the Global application were material.

                                                  D.

        Global also argues that the “No” answer is not sufficiently related to the claims alleged in

the Alabama lawsuit’s original complaint to trigger the application exclusion. The application

exclusion applies only to claims “alleging, based upon, arising out of, attributable to, directly or

indirectly resulting from, in consequence of, or in any way involving, any untruthful or inaccurate

statements, representations, or information” in the Global application. According to Global, this

means “there must be a nexus between that misrepresentation and the Claim,” and the Alabama

lawsuit, as pleaded in the original complaint, “had nothing to do with Global.” It neither mentioned

Global by name nor accused it of any wrongdoing. Also, the claims against Global that eventually

appeared in subsequent versions of the complaint differ considerably from those against USHFCC,

Virsenet, and ShipCom. Global summarizes these differences in its brief:

        [The original complaint] in the Alabama Lawsuit focused on (1) an agreement with
        Intrado (which has nothing to do with the latter allegations made against Global),
        (2) an agreement with Rockwell Collins (which has nothing to do with the
        allegations made against Global, and (3) the ownership of the FCC waiver (which
        has nothing to with the Global Allegations). In contrast, allegations made relating
        to Global (as noted in the Third Amended Complaint) involve (1) the availability
        to ShipCom of the Globe transaction, (2) ShipCom’s failure to consummate the
        Globe transaction, (3) the formation of Global, (4) Global’s purchase of Globe and

                                                 -21-
No. 18-3653, US HF Cellular Commc’ns v. Scottsdale Ins. Co.


       its assets, and (5) subsequent agreements between Global and USHFCC or
       ShipCom relating to certain frequencies.

(Citations omitted).

       Again, Global’s argument is stymied by the policy’s plain language. And this time, it is

staggeringly broad. In order for the application exclusion to apply, it is enough if the claims for

which coverage is sought “involv[e]” the relevant misrepresentation “in any way.” (Emphasis

added). Here, the litigation that made Bayuk’s “No” answer a misrepresentation is the very same

litigation for which Global later sought coverage under the policy.          Beyond that obvious

connection, the claims present in the original complaint “involv[e]” Global and the subsequent

claims against it much more than Global lets on. Both sets of allegations center on the same entity,

ShipCom, and the alleged exploitation of its assets. Both allege conduct from around the same

period, harm to the same plaintiffs, and wrongful acts by the same individuals. USHFCC and

Global had identical membership on their boards, the same COO, and the same “counsel to the

Company.” They even conducted board meetings one right after the other on at least one occasion.

Thus, these two sets of claims are not merely “involve[d]” “in any way”; they are deeply connected

in several important respects.

       What’s more, Scottsdale points out that the first amended complaint in the Alabama lawsuit

was filed twelve days before Bayuk executed the revised Global application. This version of the

complaint did not add Global as a defendant, but it did explicitly mention Global and implicate

Global in its allegations of breach of fiduciary duty, self-dealing, and usurpation of corporate

opportunity against USHFCC, Virsenet, ShipCom, and Bayuk. This strengthens the connections

between the claims against Global to those in the Alabama lawsuit’s original complaint even

further. For these reasons, we reject Global’s “relatedness” argument.



                                               -22-
No. 18-3653, US HF Cellular Commc’ns v. Scottsdale Ins. Co.


                                                   E.

        Global’s brief mentions in passing that “the district court d[id] not explain how prior

litigation against Mr. Bayuk (which did not involve Global) somehow taints coverage for [Block

and Stiegler’s] separate claims against [Global COO] Mr. Richmond, [Global directors] Mr.

Jacobs, Mr. Amron, Mr. Whiteman, Mr. Braunstein, or Global itself.” Global has likely forfeited

this argument as well (by failing to raise it before the district court), but it is easily dispensed with

on the merits. USHFCC’s board of directors discussed the Alabama lawsuit on July 23, 2015.

Edward Bayuk, Ray Whiteman, Joseph Jacobs, Arthur Amron, Phil Braunstein, Jon Richmond,

and Wendy J. Schriber attended this meeting.             Richmond, Jacobs, Amron, Braunstein, and

Whiteman were eventually added to the Alabama lawsuit as defendants. The minutes from a

meeting of Global’s board of directors—which took place about an hour before the USHFCC

board meeting—listed Bayuk, Jacobs, Amron, Braunstein, and Whiteman as board members of

Global, and Jon Richmond as COO.

        Because they attended the USHFCC board meeting, each of these individuals is imputed

with knowledge of the Alabama lawsuit’s existence as of July 23, 2015. The application exclusion

applies to them in addition to Bayuk because they are “natural persons . . . who knew the facts

misrepresented” by Bayuk in the revised Global application, viz., that Bayuk had within the prior

three years “been the subject of or involved in . . . litigation.”. It does not matter “whether [they]

knew of the Application, such materials, or [the Global] Policy.” (Emphasis omitted). The

exclusion also applies to Global both directly and “to the extent it indemnifie[d]” these individuals.




                                                  -23-
No. 18-3653, US HF Cellular Commc’ns v. Scottsdale Ins. Co.


       For these reasons, we affirm the district court’s grant of summary judgment in favor of

Scottsdale with respect to the Global Policy. 8

                                                  VI.

       Finally, plaintiffs challenge the magistrate judge’s limitation of discovery in its preliminary

pretrial order. We review this challenge for abuse of discretion. Bentkowski v. Scene Magazine,

637 F.3d 689, 696 (6th Cir. 2011). The order stated in relevant part:

       Defendant asks that discovery related to coverage issues proceed in advance of
       discovery related to the bad faith claim; Plaintiffs disagree with that request, taking
       the position that discovery on the issues may not be easily categorized. Having
       heard the arguments of counsel, the Court DIRECTS that discovery proceed at this
       juncture only on the issue of coverage. However, a discovery request will not be
       objectionable merely because it may relate to both the coverage issue and the bad
       faith claim. The party seeking such discovery must, in the face of objection, be
       able to establish the relevance of the proposed discovery to the issue of coverage.

The reason for directing that discovery proceed in this way is fairly straightforward. Recall that

“there can be no action for breach of the implied covenant of good faith and fair dealing” if there

is no duty to defend. USHFCC, 2018 WL 2938388, at *12. In other words, plaintiffs would have

to prevail on the issue of coverage for the bad faith claim to be viable, so taking discovery that

pertained only to bad faith early on in the litigation would be potentially unnecessary.

       Plaintiffs argue that this order “seriously impaired the Insureds’ ability to fully and fairly

develop the record on coverage and imposed a tremendous burden given the financial strain of


       8
         To the extent that plaintiffs challenge the district court’s grant of summary judgment in
favor of Scottsdale with respect to their claims for breach of the implied covenant of good faith
and fair dealing, this fails as well. The district court addressed it thus: “If there is ‘no duty to
defend under the terms of [an insurance] policy, there can be no action for breach of the implied
covenant of good faith and fair dealing.’” USHFCC, 2018 WL 2938388, at *12 (quoting Waller
v. Truck Ins. Exch., Inc., 900 P.2d 619, 639 (Cal. 1995), as modified on denial of reh’g (Oct. 26,
1995)). We agree that this ends the inquiry. This appeal also nominally challenges the district
court’s denial of plaintiffs’ motions for partial summary judgment. Because they addressed the
same issues as Scottsdale’s motion for summary judgment, we affirm those denials for the reasons
stated above.
                                                  -24-
No. 18-3653, US HF Cellular Commc’ns v. Scottsdale Ins. Co.


having to defend the Alabama Lawsuit while simultaneously waging battle with their own insurer.”

This argument lacks merit for two reasons. First, the magistrate judge did not limit discovery that

pertained to the coverage issue, and even took care to explicitly note that discovery requests would

not be objectionable simply because they related to both claims. While plaintiffs claim that they

“would have to proceed with discovery at their peril, knowing there would be a fight in every

deposition over whether a sufficient overlap existed”, the magistrate judge did not leave them out

in the cold, stating that a “party may request a conference with the Court to resolve any dispute

that the parties are unable to resolve on their own.” That discovery disputes could possibly arise

does not create an abuse of discretion, nor does the fact that plaintiffs would have to expend some

time and resources litigating a lawsuit that they filed.

        Second, plaintiffs argue that the magistrate judge’s order made discovery more

cumbersome and expensive, but in practice, it did the opposite. They describe a hypothetical

situation in which they prevail on the issue of coverage and would then have to take duplicative

discovery on the bad faith issue, forcing them to “retake depositions all over the country again.”

This did not happen. If it did, the district court would have discretion to streamline discovery.

Here, the magistrate judge specifically directed the parties to “proceed with a view to minimizing

the risk of unnecessary expense and burden to any party.” None of plaintiffs’ arguments have

merit, and the district court did not abuse its discretion in limiting discovery on the bad faith claims.

Accordingly, we affirm the magistrate judge’s decision as well.

                                                  VII.

        For these reasons, we affirm the district court’s judgment.




                                                  -25-
