In January 2001, the Office of Disciplinary Counsel for the Ohio Supreme Court sent a Letter of Inquiry to O'Neill regarding 44 alleged instances of judicial misconduct. Over the next 21 months, various materials were exchanged. In November 2002, an Amended Complaint, comprised of 6 counts and 55 instances of alleged judicial misconduct was filed with the Board. A hearing on these allegations was conducted over a 19-day period and included the testimony of over 100 witnesses.
The Board found against O'Neill on 4 of 6 counts, and suspended O'Neill's license to practice law for 2 years. The Ohio Supreme Court affirmed, with some modifications.
Throughout the disciplinary proceedings, O'Neill was represented by attorney David Greer. His hourly rate was $175 and total charges for representing O'Neill were in excess of $580,000.00. In her capacity as a Franklin County Common Pleas Judge, O'Neill was covered by a policy of professional liability insurance issued by Kemper and Luberman's.
O'Neill filed suit in the U.S. District Court (S.D. Ohio) seeking partial reimbursement for attorney's fees, costs and expenses incurred in defending against the 2 counts on which she prevailed. The District Court granted Kemper and Luberman's motion for summary judgment on all issues, and O'Neill appealed to the Sixth Circuit.
The Sixth Circuit defined the issue on appeal: "We must decide whether the language [of the insurance policy] allows for partial reimbursement of attorneys' fees and costs prorated to the number of allegations an insured prevails on, as O'Neill contends, or whether it requires an insured to prevail on all allegations contained in one disciplinary proceeding in order to collect, as defendants argue."
The policy at issue provided, in pertinent part:
"A. WHAT WE COVER
Subject to all terms and conditions of this policy, we will pay on your behalf all damages and claim expenses arising out of a claim which you first become aware of and you report to us in writing during the policy period.
B. DEFENSE AND SETTLEMENT
We will provide for the defense of claims against you that are covered by this policy even if the allegations against you are groundless, false or fraudulent.
* * *
Whenever used in this policy, the term:
1. Claim means:
* * *
b. Any allegations against you brought by an official disciplinary committee, judicial competence committee or other similar official committee of inquiry in disciplinary procedures, in [sic] connection with any such proceedings, our obligation under this policy is limited to reimbursing you for attorneys' fees and other reasonable costs, expenses or fees resulting from the investigation or defense of any such proceeding and then only in the event the allegations brought against you are dismissed or discontinued without a finding of fault or guilt on your part."
O'Neill argued that the use of the term "any" modified the term "allegations," and therefore, the policy required reimbursement for defending allegations which are "dismissed or discontinued without a finding of fault or guilt." Defendants countered that the section "only provides for reimbursement of attorney fees and expenses if the allegations are dismissed without a finding of fault or guilt," and O'Neill could not dispute that she was found guilty on four of six counts.
Under a de novo standard of review, the Court found that, according to the policy's plain language, the singular term "claim" encompassed all allegations brought in a disciplinary proceeding. It also found that the policy limited reimbursement of any "claim" to only a "proceeding" in which "the allegations brought against you are dismissed or discontinued without a finding of fault or guilt on your part." The Court concluded, "This language is clear and unambiguous, and provides for reimbursement of expenses only if a 'claim' — i.e., the allegations in a disciplinary proceeding — is dismissed or discontinued without a finding of fault."
The Court concluded that, for purposes of the policy, the entire disciplinary action comprised one "claim." In other words, it was a single proceeding that included multiple allegations. Under this policy, all of "the allegations" brought against O'Neill in this proceeding must have been dismissed or discontinued without a finding of guilt in order to qualify for reimbursement. Accordingly, the Court affirmed the District Court's grant of summary judgment.
Judge(s): BOYCE F. MARTIN, JR.
Jurisdiction: U.S. Court of Appeals, Sixth Circuit
|Plaintiff Lawyer(s)||Plaintiff Law Firm(s)|
|Lawrence J. Greger||Greger Law Office|
|Defendant Lawyer(s)||Defendant Law Firm(s)|
|Wilson Weisenfelder Jr.||Rendigs Fry Kiely & Dennis LLP|