                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-22-2003

Maddox v. St Paul Fire
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2828




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"Maddox v. St Paul Fire" (2003). 2003 Decisions. Paper 351.
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                                                              NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                                      No. 02-2828


                               WALTER L. MADDOX, III,
                                                Appellant
                                         v.

            ST. PAUL FIRE AND MARINE INSURANCE COMPANY;
           UNITED STATES FIDELITY AND GUARANTY COMPANY


                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                             (D.C. Civil No. 01-cv-01264)
                        District Judge: Hon. D. Brooks Smith


                                 Argued June 26, 2003

                Before: SLOVITER and AMBRO, Circuit Judges, and
                       PETRESE B. TUCKER*, District Judge

                                 (Filed: July 22, 2003)


Leland P. Schermer (Argued)
Leland Schermer & Associates
11 Stanwix Street, 7th Floor
Pittsburgh, PA 15222

      Attorney for Appellant


*     Hon. Petrese B. Tucker, United States District Court for the Eastern District of
      Pennsylvania, sitting by designation.
Alan S. Miller (Argued)
Picadio McCall Miller & Norton
4710 U.S. Steel Tower
600 Grant Street
Pittsburgh, PA 15219


                                   OPINION OF THE COURT


SLOVITER, Circuit Judge.

       We must decide whether we have jurisdiction over this interlocutory appeal filed

by appellant Walter L. Maddox, III from the order of the District Court denying

Maddox’s Motion to Continue with Counsel and granting in part and denying in part the

Motion of defendant United States Fidelity and Guaranty Company (“USF& G”) to

Proceed with Defense of M addox. Maddox v. St. Paul Fire & Marine Ins. Co., Civ. A.

No. 01-1264 (W.D. Pa. May 29, 2002). The order also denied USF& G’s motion to

substitute its proffered counsel and ordered Maddox to select new, qualified, and

independent counsel, subject to USF&G’s reasonable approval. We will dismiss this

appeal for lack of jurisdiction.

                                            I.

                    FACTS AND PROCEDURAL BACKGROUND

       On January 11, 2001, Sunny James Cvetnic filed a civil suit against Maddox for

trademark infringement and other claims in the United States District Court for the

Western District of Pennsylvania. Cvetnic claimed that Maddox, a musician, infringed on


                                            2
Cvetnic’s trademark by performing under the name “The Marcels.”

       Maddox has purchased annual general liability insurance policies from USF&G

and St. Paul Fire and Marine Insurance Company (“St. Paul”) since September 1992. The

policies provide coverage to Maddox for claims by third parties asserting “Advertising

Injuries.” See, e.g., Supp. App. at 352. The policies also provide USF&G and St. Paul

the right and duty to defend Maddox in any suit seeking damages based on such injuries.

       Upon notice of the suit, Maddox’s retained counsel, Metz Schermer & Lewis, sent

a letter to St. Paul. The letter provided notice of the Cvetnic action and demanded

complete defense and indemnity in that lawsuit under the “Advertising Injuries” coverage

provision. On April 3, 2001, Maddox’s counsel filed an Answer in the Cvetnic action.

On April 27, 2001, Daria Fitzgerald, a St. Paul employee, left a voice message with

Maddox’s counsel stating that St. Paul would provide a defense for Maddox under a

reservation of rights and expressing its willingness to allow M etz Schermer & Lewis to

represent Maddox in the Cvetnic action.

       On May 15, 2001, slightly less than a month later, USF&G and St. Paul issued a

reservation of rights letter to Maddox, reserving the right to deny coverage, withdraw

from Maddox’s defense, seek reimbursement from Maddox for uncovered claims, and

deny indemnification. On June 20, 2001, USF&G notified Maddox’s counsel by letter




                                            3
that it was withdrawing from providing Maddox’s defense.1 USF&G based its decision

on information acquired from papers filed in a prior 1981 action between The Marcels

and their record label, Knauss, et al. v. Colpix Records, No. 80 Civ. 2255 (S.D.N.Y.

1981).

         Maddox filed suit against USF&G and St. Paul in the Court of Common Pleas of

Allegheny County on July 9, 2001. Maddox’s Complaint sought declaration of

USF&G/St. Paul’s duty to defend Maddox in the Cvetnic action, as well as relief for other

claims, including breach of contract and bad faith. USF&G and St. Paul removed the

action to the District Court for the Western District of Pennsylvania. Maddox filed a

motion for a temporary restraining order, pending a preliminary injunction, to enjoin

USF&G and St. Paul from withdrawing their defense and requiring them to pay

Maddox’s counsel fees.

         The District Court granted the motion by the insurance companies to sever the

declaratory judgment count concerning the issue of their duty to defend M addox.

Maddox v. St. Paul Fire & Marine Ins. Co., Civ. A. No. 01-1264 (W.D. Pa. Aug. 8,

2001). On December 27, 2001, the District Court granted Maddox’s motion for summary

judgment in part, finding that USF&G has a duty to defend Maddox in the Cvetnic action.

Maddox v. St. Paul Fire & Marine Ins. Co., 179 F. Supp. 2d 527 (W.D. Pa. 2001).



   1
    Some of the letters in the Supplemental Appendix which we attribute to USF&G
appear to be written on St. Paul’s letterhead but signed by representatives of USF&G.
For purposes of our analysis, any dispute over the source of the letters is inconsequential.

                                             4
         Subsequently, USF&G sent Maddox’s counsel a letter advising him that it had

retained new counsel for his defense in the Cvetnic lawsuit. USF&G reasserted its prior

reservation of rights, except for the prior publication exclusion which the District Court

had rejected. On January 28, 2002, USF&G filed a motion to proceed with Maddox’s

defense. Maddox opposed the motion and requested retention of Metz Schermer &

Lewis.

         On May 29, 2002, the District Court granted in part USF&G’s motion, finding that

it had the right to reject M etz Schermer & Lewis due to an acrimonious relationship

between counsel and USF&G caused by the litigation over Maddox’s duty to defend and

bad faith claims. It also sustained Maddox’s objection to the new counsel the insurance

company sought to retain. The District Court order granted Maddox the opportunity to

choose new, qualified counsel, subject to reasonable approval by USF&G. Maddox filed

a timely appeal.

         Maddox has complied with the District Court’s order and selected alternative

counsel, although in this appeal he continues to assert his objection to the order that

required him to find new counsel. USF&G has objected to Maddox’s newly selected

counsel based solely on an inability to reach an agreement concerning a reasonable fee

rate.

                                             II.

                                       DISCUSSION


                                              5
       The District Court had subject matter jurisdiction over this action pursuant to 28

U.S.C. § 1332.

       USF&G has agreed that it will pay for Maddox’s defense in the Cvetnic lawsuit.

Maddox argues that the District Court’s order requiring him to select new counsel for his

defense in that action deprives him of his right to be represented by the counsel of his

choice. Specifically, Maddox raises two issues: (1) whether an insurance company which

breaches its duty to defend under an insurance policy has a right to object to the insured’s

chosen independent counsel and (2) whether an insurance company’s issuance of

reservation of rights letters creates a conflict of interest with the insured that gives the

insured a right to select independent counsel. The preliminary question before us is

whether we have jurisdiction to hear M addox’s appeal. It is interlocutory because

Maddox’s breach of contract and bad faith claims are still pending before the District

Court. The Cvetnic action has been delayed pending the outcome of this appeal.

                                              A.

                                 Collateral Order Doctrine

       Under 28 U.S.C. § 1291, our review is limited to “final decisions of the district

courts.” We, Inc. v. City of Philadelphia, 174 F.3d 322, 324 (3d Cir. 1999). It is

undisputed that the District Court’s order was a collateral order and not a final judgment.

See Maddox’s Br. at 18 (the “district court’s May 29, 2002 order is a collateral order”).

A final judgment “ends the litigation on the merits and leaves nothing for the court to do


                                               6
but execute the judgment.” Cunningham v. Hamilton County, Ohio, 527 U.S. 198, 204

(1999). Inasmuch as the District Court still has before it Maddox’s breach of contract and

bad faith claims against USF&G and St. Paul, the order at issue is not a final decision.

       In limited circumstances, a collateral order may be deemed a final decision under

28 U.S.C. § 1291. We, Inc., 174 F.3d at 324. To qualify for immediate review, the order

must: (1) “conclusively determine the disputed question;” (2) “resolve an important issue

completely separate from the merits of the action;” and (3) “be effectively unreviewable

on appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468

(1978). “If the order at issue fails to satisfy any one of these requirements, it is not an

appealable collateral order.” We, Inc., 174 F.3d at 324.

       We have stated that for purposes of the collateral order doctrine, the Supreme

Court has instructed that “‘the issue of appealability under § 1291 is to be determined for

the entire category to which a claim belongs.’” Id. at 325 (citation omitted). An analysis

by category prevents case-by-case determinations. See Richardson-Merrell Inc. v. Koller,

472 U.S. 424, 439 (1985) (“This Court, however, has expressly rejected efforts to reduce

the finality requirement of § 1291 to a case-by-case determination of whether a particular

ruling should be subject to appeal.”).

       The Supreme Court has held that orders disqualifying counsel are not immediately

appealable. See id. In Richardson-Merrell, the Court held that a disqualification order

was not immediately appealable because the issue of disqualification was not separate



                                               7
from the merits of the underlying action and because it could be appealed at final

judgment. Id. at 435, 439. Similarly, in Cunningham, the Court held that an order

imposing sanctions on an attorney under Fed. R. Civ. P. 37 and disqualifying that attorney

from the case was not immediately appealable for the same reasons. 527 U.S. at 205-07.

       USF&G argues that the District Court’s order here fits within the category of

disqualification orders and that orders disqualifying counsel, as a category, are not

immediately appealable. In this action, the District Court’s order effectively acts as a

disqualification order. The order bars Metz Schermer & Lewis from defending Maddox

in the Cvetnic action and requires M addox to select alternative counsel.

       In ruling that Maddox’s counsel could be replaced, the District Court considered

whether an insurance company that breaches its duty to defend subsequently has the right

to reject the insured’s chosen counsel and whether USF&G waived that right when it

withdrew from providing Maddox a defense in the Cvetnic action. These questions

necessarily involve an inquiry into USF&G’s breach of the insurance contract, the extent

of the breach, and USF&G’s attempts to remedy the breach. The District Court

concluded, “because USF&G is attempting to reinstate its defense [in the Cvetnic action]

while the litigation is still ongoing, Maddox does not have an unfettered right to force

USF&G to pay future attorney fees for his current counsel.” Maddox v. St. Paul Fire &

Marine Ins. Co., Civ. A. No. 01-1264, at *7 (W.D. Pa. May 29, 2002). These

considerations overlap with Maddox’s remaining breach of contract and bad faith claims



                                             8
in this action.

       Because the issue of whether USF&G could object to Maddox’s selected counsel

is not completely separable from the merits of Maddox’s remaining breach of contract

and bad faith claims, the situation is analogous to that provided to the Court in

Richardson-Merrell and its reasoning for disallowing the collateral appeal of the counsel

disqualification order in that case is equally applicable here. Consequently, just as in

Richardson-Merrell, we do not have jurisdiction over Maddox’s interlocutory appeal.

       Maddox argues that the District Court’s order will be unreviewable on appeal from

final judgment if the Cvetnic action is decided before the underlying action here. He cites

United States v. Whittaker, 268 F.3d 185 (3d Cir. 2001), where we found we had

jurisdiction over a collateral appeal of an order disqualifying a U.S. Attorney because the

government, in a criminal case, “cannot appeal from a judgment of not guilty.” Id. at

192. The situations are not comparable. While Maddox would not be able to retry the

Cvetnic action, he may be able to include any damages caused by his inability to use the

counsel of his choice as an element of his injury in the underlying action here.

       Even more important, we have concluded that the District Court’s order is

effectively an attorney disqualification order, a category of orders for which the Supreme

Court has deemed collateral review inappropriate. Therefore, we have no jurisdiction

over this interlocutory appeal.

                                            B.



                                              9
                                    Writ of Mandamus

        Maddox also requests that we exercise jurisdiction over this appeal by issuing an

extraordinary writ of mandamus. Maddox argues that by granting USF&G some control

over Maddox’s choice of counsel, the District Court necessarily determined that

USF&G’s breach of the insurance contract was immaterial, and consequently deprived

Maddox of his constitutional right to a jury trial for the resolution of disputed issues of

fact.

        Writs of mandamus are extraordinary relief which should be used sparingly and

only in cases where the district court has engaged in an act amounting to a judicial

usurpation of power. Whittaker, 268 F.3d at 193. This is not one of those rare cases

where a writ of mandamus is necessary. The District Court did not make a finding on the

materiality of USF&G’s breach. Rather, the District Court determined that USF&G had

some right to control Maddox’s defense as a matter of law, apart from any breach. The

materiality of USF&G’s breach, and any resulting damages, will be determined on the

merits in Maddox’s remaining action against USF&G. Under these circumstances, a

grant of a writ of mandamus would be inappropriate.

                                             III.

                                      CONCLUSION

        Because we do not have jurisdiction to hear this appeal, we cannot reach the




                                              10
merits. For the reasons set forth, we dismiss Maddox’s appeal for lack of jurisdiction.2

_________________________

TO THE CLERK:

                                                  Please file the forgoing opinion.




                                                  /s/ Dolores K. Sloviter
                                                  Circuit Judge




   2
     We are concerned that the Cvetnic action has been awaiting resolution of this
dispute. We are confident that when this action is returned to the District Court, it will
ensure prompt resolution of the remaining issue as to the fee requested by Maddox’s
newly chosen counsel so that the Cvetnic action can proceed.
