     14-4519-cv
     St. Paul Guardian Ins. Co. v. Leopold

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 18th day of November, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                PIERRE N. LEVAL,
 8                GERARD E. LYNCH,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       ST. PAUL GUARDIAN INS. CO., ST. PAUL
13       FIRE & MARINE INS. CO.,
14                Plaintiffs-Counter-
15                Defendants-Appellees,
16
17                    -v.-                                               14-4519-cv
18
19       JONATHAN LEOPOLD,
20                Defendant-Counter-Claimant-
21                Appellant.
22       - - - - - - - - - - - - - - - - - - - -X
23
24       FOR APPELLANT:                        Robert A. Gensburg, Gensburg,
25                                             Atwell & Greaves, St. Johnsbury,
26                                             VT.
27


                                                  1
 1   FOR APPELLEE:              Robert M. Vinci, Drinker Biddle
 2                              & Reath LLP, Florham Park, NJ;
 3                              Frederick P. Marczyk, Drinker
 4                              Biddle & Reath LLP,
 5                              Philadelphia, PA; Thomas E.
 6                              McCormick, McCormick,
 7                              Fitzpatrick, Kasper, Burchard,
 8                              P.C., Burlington, VT.
 9
10        Appeal from a judgment of the United States District
11   Court for the District of Vermont (Crawford, J.).
12
13        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
14   AND DECREED that the judgment of the district court be
15   AFFIRMED.
16
17        Jonathan Leopold appeals from a judgment of the United
18   States District Court for the District of Vermont (Crawford,
19   J.) granting judgment on the pleadings to St. Paul Guardian
20   Insurance Co. (“St. Paul”) and dismissing Leopold’s
21   counterclaims. We assume the parties’ familiarity with the
22   underlying facts, the procedural history, and the issues
23   presented for review.
24
25        In this insurance coverage dispute, St. Paul issued a
26   policy to the City of Burlington that afforded, inter alia,
27   primary and excess public entity management liability
28   (“PEML”) coverage. The PEML coverage provides that St. Paul
29   will pay whatever amount any “protected person” is legally
30   required to pay as damages for a “covered loss,” and will
31   defend a “protected person” against a suit for such loss.
32   AA-6. The PEML policy also contains an Insured v. Insured
33   exclusion: coverage does not extend to “loss for which any
34   claim or suit is made or brought by, or on behalf of, any
35   current or former protected person against any current or
36   former protected person.” AA-11. Leopold was the Chief
37   Administrative Officer of Burlington (a “protected person”)
38   and was a defendant in a lawsuit filed by two former city
39   councilmen on behalf of the City of Burlington (the
40   “Underlying Action”). The parties dispute whether St. Paul
41   had a duty to defend or indemnify Leopold in the Underlying
42   Action and whether St. Paul must reimburse Leopold for his
43   attorney’s fees in connection with criminal investigations
44   pertaining to the conduct that was the basis of the
45   Underlying Action.
46


                                  2
 1        The district court granted judgment for St. Paul on
 2   three separate grounds: (i) the damages sought in the
 3   Underlying Action did not qualify as a “covered loss,” (ii)
 4   the two former city councilmen who brought the Underlying
 5   Action were insureds, triggering the Insured v. Insured
 6   exclusion in the PEML policy, and (iii) the Underlying
 7   Action was brought on behalf of the City of Burlington,
 8   which is an insured, triggering the Insured v. Insured
 9   exclusion in the PEML policy. The district court also
10   dismissed Leopold’s counterclaim for attorney’s fees
11   relating to the various criminal investigations because St.
12   Paul had no duty to defend in the Underlying Action.
13
14        We review de novo a district court’s judgment granting
15   a motion under Rule 12(c) of the Federal Rules of Civil
16   Procedure, L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419,
17   429 (2d Cir. 2011), and under Rule 12(b)(6) of the Federal
18   Rules of Civil Procedure, Carpenters Pension Trust Fund of
19   St. Louis v. Barclays PLC, 750 F.3d 227, 232 (2d Cir. 2014).
20   An insurer has a duty to defend if “any claims [in the
21   underlying action] are potentially covered by the policy,”
22   but if “there is no possibility that the insurer might be
23   obligated to indemnify, there is no duty to defend.” City
24   of Burlington v. Nat’l Union Fire Ins. Co., 655 A.2d 719,
25   721 (Vt. 1994). Courts construe insurance policies
26   according to their terms and the evidenced intent of the
27   parties and give disputed terms their “plain, ordinary and
28   popular meaning.” Id.
29
30        1. As the district court concluded, the Underlying
31   Action fell within the Insured v. Insured exclusion to the
32   PEML policy. There is no dispute that Leopold is a
33   “protected person,” and it is clear that the suit was
34   brought on behalf of the City of Burlington, a public entity
35   protected by the policy. Under the plain wording of the
36   contract, any “loss for which any claim or suit is made or
37   brought by, or on behalf of, any . . . protected person
38   against any . . . protected person” is excluded from
39   coverage. It is therefore clear that St. Paul had no duty
40   to defend or indemnify Leopold for the Underlying Action.
41
42        2. Because St. Paul had no duty to defend or indemnify
43   Leopold in the Underlying Action, we agree with the district
44   court that St. Paul has no duty to pay the attorney’s fees
45   Leopold has incurred in connection with various criminal
46   investigations into the conduct that was the basis of the
47   Underlying Action.

                                  3
1        Accordingly, and finding no merit in Leopold’s other
2   arguments, we hereby AFFIRM the judgment of the district
3   court.
4
5                              FOR THE COURT:
6                              CATHERINE O’HAGAN WOLFE, CLERK
7




                                 4
