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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

JUDGMENT

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

DISCUSSION

I. ...


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