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Silver v. American Safety Indemnity Company

United States District Court, D. Columbia.

March 26, 2014

JONATHAN MOSES SILVER, Plaintiff,
v.
AMERICAN SAFETY INDEMNITY COMPANY, Defendant

Page 141

[Copyrighted Material Omitted]

Page 142

For Jonathan Moses Silver, Plaintiff: Justin Frank Lavella, LEAD ATTORNEY, John Albert Gibbons, DICKSTEIN SHAPIRO, LLP, Washington, DC.

For American Safety Indemnity Company, Defendant: Robert N. Kelly, LEAD ATTORNEY, Washington, DC.

Page 143

MEMORANDUM OPINION

Emmet G. Sullivan, United States District Judge.

Plaintiff Jonathan Silver brings this action against his former insurer, American Safety Indemnity Company (" American Safety" ). Plaintiff alleges that American Safety breached the insurance policy it issued him when it refused to provide coverage for his legal expenses arising out of his former role as Executive Director of the Department of Energy's Loan Programs Office. Plaintiff also alleges American Safety breached the duty of good faith and fair dealing by the same conduct. He seeks to recover compensatory and punitive damages.

Pending before the Court is defendant's Motion for Judgment on the Pleadings and plaintiff's Cross-Motion for Partial Summary Judgment. Upon consideration of the motions, the responses and replies thereto, the entire record, and for the reasons explained below, defendant's motion is GRANTED.

Accordingly, because the court grants judgment on the pleadings, plaintiff's cross motion for summary judgment is DENIED as moot.

I. BACKGROUND

A. Plaintiff's Employment, and the Policy Purchased

Plaintiff Jonathan Silver is a resident of the District of Columbia. Compl. ¶ 2. Defendant American Safety is an Oklahoma corporation with its principal place of business in Georgia. Compl. ¶ 3, Answer ¶ 3. Defendant is licensed to and does transact business in the District of Columbia. Compl. ¶ 3.

In November 2009, plaintiff was appointed Executive Director of the Loan Programs Office (" LPO" ) of the United States Department of Energy by Secretary of Energy, Steven Chu. Compl. ¶ 6. While serving in this position, plaintiff purchased from American Safety a Federal Employee Professional Liability Policy with certificate number P0169PF21031400 (the " Policy" ). Compl. ¶ 10. The Policy Period was March 11, 2011 to March 11, 2012. Compl. Ex. A, Certificate of Insurance. The Policy provides two types of coverage. Section I provides " civil suit coverage," and Section II provides " administrative and criminal legal defense expense coverage." Compl. Ex. A, Policy § § I, II. Only Section II of the Policy is at issue in this case. Coverage under Section II is provided as follows:

The Company shall select counsel and pay the costs of defense . . . on each valid " Insured Member's" certificate arising out of any " disciplinary proceedings" , " judicial sanctions proceedings" , " criminal proceedings" , or any investigations into the " Insured Member's" alleged misconduct, instituted against the Insured Member from any act, error or omission in Professional Services rendered or which should have been rendered in the " Insured Member's" professional capacity as a full or part-time Employee of the United States Government.
Policy § II.A. The Policy defines " Insured Member" as:
Any full or part time civilian federal employee meeting the definition of 5 U.S.C. § 2105(a) . . . .

Id. § IV.H.

Finally, the Policy places conditions on coverage under Section ...


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