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Attorneys Liability Protection Society, Inc., A Risk Retention v. Ingaldson & Fitzgerald
December 21, 2012
ATTORNEYS LIABILITY PROTECTION SOCIETY, INC., A RISK RETENTION GROUP,
PLAINTIFF,
v.
INGALDSON & FITZGERALD, P.C., DEFENDANT.
The opinion of the court was delivered by: Sharon L. Gleason United States District Judge
ORDER GRANTING DEFENDANT'S MOTION FOR PARTIAL SUMMARY
Defendant Ingaldson & Fitzgerald, P.C. (IF) filed a motion for partial
summary judgment on May 9, 2012.*fn1 Plaintiff
Attorneys Liability Protection Society, Inc. (ALPS) opposed on June
11, 2012.*fn2 On June 28, 2012, IF replied.*fn3
Oral argument was held in Anchorage on August 10, 2012. The
Court requested supplemental briefing on October 4, 2012,*fn4
which the parties submitted on October 18, 2012.*fn5
FACTUAL AND PROCEDURAL BACKGROUND
The facts relevant to this motion are not disputed and are as follows:*fn6
In its Complaint, ALPS describes itself as "an insurance company and risk retention group" organized and with its principal place of business in Montana.*fn7 IF is a professional corporation organized and with its principal place of business in Alaska.*fn8
From April 29, 2007 to April 29, 2008, IF was covered by an attorneys' liability policy issued by ALPS (Policy).*fn9
On October 22, 2008, an adversary proceeding was initiated against IF in the U.S. Bankruptcy Court for the District of Alaska (Underlying Suit) seeking recovery of a retainer that had been paid to IF.*fn10 IF notified ALPS of the Underlying Suit on October 28, 2008.*fn11 On October 31, 2008, ALPS accepted IF's tender of the defense in the Underlying Suit, but reserved "all rights."*fn12 IF then retained independent counsel, which ALPS paid for in full.
In 2011, summary judgment was rendered against IF in the Underlying Suit.*fn13
ALPS asserts that because the judgment in the Underlying Suit was entered on claims of restitution, disgorgement, and conversion, each of which is specifically excluded under the Policy, all amounts awarded against IF in the Underlying Suit are outside the Policy's coverage.*fn14
On September 23, 2011, ALPS initiated this action seeking (1)
declaratory judgment that the Policy does not provide coverage for the
Underlying Suit; (2) declaratory judgment that ALPS has no obligation
to apply for, furnish, finance, or provide collateral for any appeal
bond of the Underlying Suit; and (3) reimbursement of the costs that
ALPS paid for IF's defense in the Underlying Suit.*fn15
As of the date the Complaint was filed, ALPS had paid all of
the costs of IF's independent counsel in the Underlying
Suit.*fn16
In this current motion, IF seeks partial summary judgment on ALPS' third claim.*fn17