                          ROSS NEELY SYSTEMS, INC., Plaintiff-Appellant,

                                                    v.

   OCCIDENTAL FIRE & CASUALTY COMPANY OF NORTH CAROLINA, Defendant-Appellee.

                                              No. 98-6817.

                                     United States Court of Appeals,

                                            Eleventh Circuit.

                                              Dec. 3, 1999.

Appeal from the United States District Court for the Northern District of Alabama. (No. CV-96-B-2865-S),
Sharon L. Blackburn, Judge.

Before BLACK and WILSON, Circuit Judges, and RONEY, Senior Circuit Judge.

        WILSON, Circuit Judge:

        Ross Neely Systems, Inc. ("Ross Neely") sued its insurance company, Occidental Fire & Casualty

Co. of North Carolina ("Occidental"), for coverage of a punitive damages award. The district court granted

summary judgment in favor of Occidental. We affirm.

                                            BACKGROUND

        Ross Neely is a trucking company that bought business auto insurance from Occidental. The policy

covered "all sums the insured legally must pay as damages because of bodily injury or property damage to

which this insurance applies, caused by an accident." Occidental also promised to defend Ross Neely against

accident claims. These broad provisions were modified by two pertinent endorsements.

        First was a punitive damages exclusion: "This insurance does not apply to punitive and/or exemplary

damage except in cases of wrongful death."1 Ross Neely knew of this exclusion, for it unsuccessfully

bargained to remove it. Ross Neely's insurance consultant told Ross Neely that Occidental would not offer

the policy without the punitive damages exclusion. Indeed, he wrote, "I honestly do not know of any carrier




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   This exclusion was deemed approved by the Alabama Department of Insurance effective August 1, 1992.
actively writing liability in this state who offers coverage against punitive damages." Despite this exclusion,

Ross Neely argues that the policy was ambiguous in light of a second endorsement.

          This endorsement, called a "Form F" endorsement, provided coverage "to the extent of the coverage

and limits of liability required" by Alabama motor carrier law and Alabama Public Service Commission

(PSC) regulations. These PSC regulations required coverage for not only negligence, but also wanton acts.

For bodily injuries to one person, the coverage required was $100,000. See Ala. Pub. Serv. Comm'n R. 4.3.

If Occidental paid claims that would not have been covered but for the Form F endorsement, Ross Neely

promised to reimburse Occidental.

          In light of these two endorsements, Ross Neely argues that Occidental should have indemnified Ross

Neely and defended it from punitive damages awarded in a tort suit arising from an accident. The accident

occurred shortly after midnight when a Ross Neely truck rear-ended a car stopped at a traffic light. Ross

Neely notified Occidental of the accident. Occidental hired an independent adjusting company to interview

the drivers, appraise property damage, obtain a copy of the police accident report, and investigate medical

claims.

          The car's driver, Truss, suffered soft tissue injuries and three to four thousand dollars in medical

expenses. Two of the passengers, whose injuries and medical expenses were greater than Truss's, settled with

Occidental for $33,000 and $165,000 respectively. Truss, however, rejected Occidental's offer of $22,500

and sued.

          Truss's complaint stated that he was "knocked, shocked, bruised and contused" and sought over one

million dollars in compensatory and punitive damages. Occidental referred the defense of the case to outside

counsel Curtis Wright.

          Occidental wrote Ross Neely about the suit, denying coverage for punitive damages and noting that

Truss's complaint sought damages in excess of the $1,000,000 policy limits. Occidental's letter confirmed

that Wright would defend Ross Neely against all claims, but that Ross Neely had the right to engage separate



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counsel to defend it against punitive damages and liability in excess of one million dollars. Ross Neely

decided to rely on Wright to defend it against all claims. Wright did not notify Ross Neely that his

representation was limited to defense of covered claims. In particular, Wright did not tell Ross Neely that

he was not defending the punitive damage claims, and indeed Wright moved for a directed verdict and

submitted a posttrial motion on punitive damages.

        After filing his tort suit, Truss offered to settle for $150,000. Wright informed Occidental of the offer

and recommended rejection. During the course of the suit, Occidental offered to settle for $30,000—$35,000.

Truss rejected these offers. His last offer to settle, for $95,000, was rejected and the case went to trial. Ross

Neely agreed that up until the day of trial, Truss's case did not appear to have much merit.

        The trial did not go well for Ross Neely. The investigating police officer, who had not been

interviewed by either Occidental or Ross Neely's lawyer, testified that the truck had been traveling fast

enough—and stopped late enough—to support an inference that the truck driver had been asleep at the wheel.

Truss presented evidence that Ross Neely had violated federal regulations by requiring its driver to remain

on duty for thirty-six hours, twenty-one of which were spent driving. To make matters worse, the truck driver

testified in a manner that contradicted his deposition testimony and fell asleep during the trial in front of the

jury.

        The jury awarded Truss $45,000 in compensatory damages and $250,000 in punitive damages. Ross

Neely moved to remit the punitive damages award. The state court denied the motion, finding Ross Neely

"reprehensibl[y]" violated federal hours-of-service regulations by failing to monitor its drivers' compliance

with the regulations and by requiring its driver to drive excessive hours.

        Occidental refused to pay the punitive damage award. Ross Neely borrowed $250,000, paid the

verdict, then sued Occidental. Ross Neely moved for partial summary judgment, arguing that the punitive

damages exclusion was contrary to Alabama public policy, that the Form F endorsement nullified the punitive

damages exclusion, and that Occidental breached its duty of good faith. Pursuant to Rule 18, Alabama Rules



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of Appellate Procedure, the district court certified to the Alabama Supreme Court the question of whether

Alabama public policy required coverage of punitive damages. The Alabama Supreme Court declined to

answer the question. Occidental moved for summary judgment. The district court denied Ross Neely's

motion and granted Occidental's motion. Ross Neely appealed.

                                                DISCUSSION

        This court reviews the district court's grant of summary judgment de novo, applying the same

standards used by the district court. See Killinger v. Samford Univ., 113 F.3d 196, 198 (11th Cir.1997).

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. Rule 56(c). An issue of fact is material

and genuine if a rational factfinder could find for the nonmoving party on a fact necessary to establish an

element of the claim under applicable substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

        In reviewing an insurance policy, an unambiguous endorsement supplants conflicting general terms.

See Commercial Std. Ins. Co. v. General Trucking Co., 423 So.2d 168 (Ala.1982). Although this court should

construe exclusions narrowly, it must not favor an insured contrary to the policy's clear meaning. See, e.g.,

Wakefield v. State Farm Mut. Auto. Ins. Co., 572 So.2d 1220, 1222 (Ala.1990); State Farm Mut. Auto. Ins.

Co. v. Lewis, 514 So.2d 863, 865 (Ala.1987). Likewise, an unambiguous contract must be enforced as

written. See Kinnon v. Universal Underwriters Ins. Co., 418 So.2d 887, 888 (Ala.1982). The Occidental

policy clearly and unambiguously excludes punitive damages: "This insurance does not apply to punitive

and/or exemplary damage except in cases of wrongful death." Therefore, Occidental need not cover Ross

Neely's punitive damage award unless the exclusion is contrary to public policy or was nullified by a contrary

provision elsewhere in the policy.




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         Under these circumstances, we cannot say that Alabama public policy bars Occidental from

excluding coverage of punitive damages. Although no Alabama cases have reached the issue, other courts

have approved similar exclusions. See, e.g., Lincoln Nat'l Health & Cas. Ins. Co. v. Brown, 782 F.Supp. 110

(M.D.Ga.1992); Hodgin v. Allstate Ins. Co., 935 S.W.2d 614 (Ky.Ct.App.1996). The Alabama agency

responsible for regulating insurance specifically allows insurers to file for approval of policies containing

punitive damages exclusions. See Rate Bulletin No. 245, Ala. Dept. of Ins. (Dec.1991-Feb.1992).2 In fact,

the particular exclusion at issue was deemed approved by the Alabama Department of Insurance. See, e.g.,

Jameson v. Mutual Life Ins. Co., 292 F.Supp. 834, 836 (E.D.Tex.1968) (when rider was approved by state

department of insurance, it was lawfully part of the policy), aff'd in pertinent part, 415 F.2d 1017 (5th

Cir.1969).

        Ross Neely argues that Alabama public policy bars an insurer from excluding punitive damages in

the specific instance when the insured is an innocent employer only vicariously liable. Cf. McNulty, 307 F.2d

at 440. Its argument fails in light of the state court verdict finding Ross Neely liable for punitive damages.

As the state court noted in denying Ross Neely's posttrial motions, substantial evidence backed the verdict.

For example, Ross Neely directed its driver to continue driving for hours before and after the accident (up

to twenty-one of thirty-six hours). The court also noted that Ross Neely inadequately monitored its

employees' compliance with hours-of-driving regulations. In light of these facts, this court declines to

speculate as to Alabama public policy regarding this specific issue, particularly when the Alabama Supreme

Court has declined to rule on the issue.




   2
    Alabama insurers must cover punitive damages for wrongful death. This is due to a quirk in Alabama
law, which considers all damages for wrongful death punitive. Unless Alabama law required coverage,
decedents' estates would lose access to insurance proceeds, even if the insured was merely negligent. To
avoid this forfeiture, Alabama law requires coverage of punitives for wrongful death. See, e.g., Northwestern
Nat'l Cas. Co. v. McNulty, 307 F.2d 432, 439 (5th Cir.1962) (partially superseded by statute on other grounds,
United Servs. Auto. Ass'n v. Webb, 235 Va. 655, 369 S.E.2d 196, 197 (1988)).

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         Neither did the Form F endorsement obligate Occidental to cover punitive damages. Form F

required Occidental to provide $100,000 in coverage as required by Alabama statutes and regulations. The

statute required coverage for negligence. Ala.Code § 37-3-18 (1975). The regulations required coverage for

wanton acts as well as negligence. The district court ruled that the Alabama PSC exceeded its authority in

expanding coverage. See Freeman v. City of Mobile, 193 F.3d 1179 (11th Cir.1999) (agency cannot amend

or supplant act of Alabama legislature); Ex parte State Dept. of Human Resources, 548 So.2d 176 (Ala.1988)

(statute prevails over conflicting regulation). See also Timmons v. City of Montgomery, 641 So.2d 1263, 1266

(Ala.Crim.App.1993). We need not reach the issue because even if the PSC could require coverage for

wanton acts, Occidental's duty to pay was never triggered.

        The purpose of Form F is only to serve as a guarantee to the public that the insurer will be liable for

any damages awarded if the insured is unable to pay. Form F does not alter the relationship between the

insured and the insurer. Therefore, Occidental served only as a surety to Ross Neely's performance. See, e.g.,

Command Transp., Inc. v. B.J.'s Wholesale Club, Inc., 62 F.3d 18, 20 (1st Cir.1995). Since Ross Neely was

able to borrow the money and pay Truss his punitive damages, Occidental's duty to pay never arose. See, e.g.,

Service Stages v. Central Sur. & Ins. Co., 231 Ala. 417, 165 So. 248 (1936); Fidelity & Cas. Co. v. Jacks,

231 Ala. 394, 165 So. 242 (1936). Further, even if Occidental had paid, Ross Neely would have been

required to reimburse Occidental. Therefore, even if Occidental theoretically breached a duty to pay, Ross

Neely suffered no damages.

         The court also found that there was no genuine issue of material fact as to whether Occidental

fulfilled its duty of good faith in defending Ross Neely. In defending an insured under a reservation of

rights,3 an insurer has a potential conflict of interest. Because the insured may face greater liability than the



  3
    Occidental wrote Ross Neely, "punitive damages were not contemplated nor coverage afforded therefore
by this Policy of Insurance. Thus, at the present time, we will provide you with the defense, but will not
indemnify you for punitive damage awards if any be rendered against you." Noting that the complaint sought
in excess of $1,000,000, Occidental stated, "This amount exceeds the coverage afforded by our policy ..."
Ross Neely's Complaint treated this letter as a reservation of rights. Even though Occidental's letter did not

                                                       6
insurer, whose liability is capped by policy exclusions and limits, the insurer's duty of good faith includes four

elements: (1) the insurer must thoroughly investigate the cause of the accident and the severity of the

plaintiff's injuries; (2) the insurer must retain competent defense counsel who will represent only the insured;

(3) the insurer must fully inform the insured of all developments relevant to its coverage and the progress of

the lawsuit, including all settlement offers; and (4) the insurer must refrain from any action that demonstrates

a greater concern for the insurer's monetary interest than for the insured's financial exposure. See L&S

Roofing Supply Co. v. St. Paul Fire & Marine Ins. Co., 521 So.2d 1298, 1303 (Ala.1987).

         There is no issue of material fact as to whether Occidental conducted an adequate investigation.

Occidental hired independent investigators who interviewed witnesses, investigated the accident scene,

examined the police report, and obtained medical records. Ross Neely argues the investigation was

insufficient because no one interviewed the state trooper who investigated the accident. This interview would

have supposedly revealed that Ross Neely's driver was driving approximately fifty miles per hour in a forty

mile-per-hour zone, that his line of sight was unrestricted for 2500 feet, and that skid marks showed he started

to brake only thirty feet from the car. All this information was available from Occidental's investigation or

from Ross Neely's own sources. The failure to interview the police officer does not create a material issue

of fact as to the adequacy of the investigation.

        The second element is the duty to engage adequate defense counsel. Ross Neely does not dispute

that Wright defended it adequately. The evidence shows that Wright properly regarded his client to be Ross

Neely, not Occidental.

        Third is the duty to keep Ross Neely informed about the progress of the case, including settlement

offers. Occidental told Ross Neely that it was not planning to cover punitive damages and that Ross Neely

should consider hiring its own counsel to represent it on the punitive damages claims. As the lawsuit




specifically reserve its rights, it notified the insured that Occidental was not planning to pay the entire
damages Truss sought. This suffices to trigger the enhanced duty of good faith.

                                                        7
progressed, Occidental informed Ross Neely of two settlement demands from the tort plaintiff, and Ross

Neely agreed those demands should be rejected.

        As for the fourth element—acting with a greater concern for Occidental's interest than Ross

Neely's—there is no material issue of fact. Merely refusing to settle does not mean the insurer breached its

duty. See Universal Underwriters Ins. Co. v. East Cent. Ala. Ford-Mercury, Inc., 574 So.2d 716, 726

(Ala.1990). Occidental settled the claims of two passengers with more serious injuries than Truss's. As the

district judge noted, both Ross Neely and Occidental considered the financial risk in proceeding to trial to

be slight. Events proved them wrong. Occidental's decision not to settle before trial must be viewed in light

of the facts available to it at the time, not in hindsight. When Occidental and Wright evaluated the

advisability of settling, it appeared Truss had no basis for punitive damages. Ross Neely concurred in this

assessment at the time.

         Nor is an insurer under a duty to settle a compensatory damage award merely to minimize its

insured's exposure to punitive damages. See Lira v. Shelter Ins. Co., 913 P.2d 514, 516 (Colo.1996). Ross

Neely has presented no evidence to create a material issue of fact that Occidental breached its enhanced duty

of good faith. The district court correctly granted summary judgment.

        AFFIRMED.




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