In an October 3, 2017 order, Judge Hovland granted the insurer’s motion for summary judgment and denied the summary judgment motions of Mau and of Eagle Well Service.
In seeking coverage, Mau had argued that Sun Well Services had sued him in his capacity as a director or officer of MW Industries, and therefore that the insurer had a duty to defend him in the lawsuit.
It is not unusual for a director or officer to be acting in multiple capacities.
Company executives may act in a personal capacity as well as a corporate capacity.
Sun Well Services brought claims of breach of contract against Mau and Eagle Well Services; claims of fraud against Mau, Eagle Well Services, and Wiedmar; claims of civil conspiracy against Mau, Wiedmar and American Well Service; and tortious interference against Widemar.
Judge Hovland rejected this argument because “any alleged liability was directly related to, based upon, and arose directly from the Asset Purchase Agreement.” This dispute and Judge Hovland’s analysis of the situation are both a little hard to follow because of the profusion of entities involved.Accordingly, Judge Hovland found that the claims in the underlying lawsuit were not based on any alleged actions, inactions, or misdeeds carried out by Mau in his capacity as a direct and officer of MW Industries, and therefore that the insurer did not owe Mau a duty to defend him in the lawsuit.Judge Hovland also concluded that the insurer had no duty to defend Eagle Well Service.The ruling underscores the importance of capacity issues and also highlights how challenging these issues can sometimes be when individuals are acting in multiple capacities. 10 named only two entities as “subsidiaries,” Star Well Services and MW Industries.This insurance dispute involves a D&O insurance policy issued to Eagle Operating Company. The parties in the subsequent insurance coverage action disputed whether Endorsements Nos.As I have argued previously, the problem with the use of the broad preamble in the contractual liability exclusion is that it allows insurers to routinely use the exclusion to preclude coverage for claims that are and ought to be covered under the policy.