### FILED U.S.COURT OF APPEALS ELEVENTH CIRCUIT 12/03/99 THOMAS K. KAHN CLERK [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

__________________ No. 98-6817

__________________ D.C. Docket No. CV 96-B-2865-S ROSS NEELY SYSTEMS, INC.,
Plaintiff-Appellant,

versus

OCCIDENTAL FIRE & CASUALTY COMPANY OF NORTH CAROLINA,
Defendant-Appellee.

___________ Appeal from the United States District Court for the Northern District of Alabama

___________ (December 3, 1999)
Before BLACK and WILSON, Circuit Judges, and RONEY, Senior Circuit Judge.1 This exclusion was deemed approved by the Alabama Department of Insurance effective August 1, 1992.
2 WILSON, Circuit Judge: Ross Neely Systems, Inc. (“Ross N eely”) sued its insurance company, Occidental Fire & Casualty Co. of North Carolina (“Occidental”), for coverage of a punitive damages award. The district court granted summary judgment in favor of Occidental. We affirm. BACKGROUND Ross Neely is a trucking company that bought business auto insurance from Occidental. The policy covered “all sums the insured legally must pay as damages because of bodily injury or property damageto which this insurance applies, caused by an accident.” Occidental also prom ised to defend Ross Neely against accident claims. These broad provisions were modified by two pertinent endorsements. First was a punitive damages exclusion: “This insurance does not apply to punitive and/or exemplary damage ex cept in cases of wrongful death.” 1 Ross Neely knew of this exclusion, for it unsuccessfullybargained to remove it. Ross Neely’s insurance consultant told Ross Neely thatOccidental would not offer the policy without the punitive damages exclusion. Indeed, he wrote, “I honestly do not know of any carrier actively writing liability in this state who offers coverage against3 punitive damages.” Despite this exclusi on, Ross Neely argues that the policy was ambiguous in light of a second endorsement. This endorsement, called a “Form F” e ndorsement, provided coverage “to the extent of the coverage and limits of liab ility required” by Alabama motor carrier law and Alabama Public Service Commission (PSC ) regulations. These PSC regulations required coverage for not onl y negligence, but also want on acts. For bodily injuries to one person, the covera ge required was $100,000. See Ala. Pub. Serv. Comm’n R.
4.3 . If Occidental paid claims that would not have been covere d but for the Form F endorsement, Ross Neely promised to reimburse Occidental. In light of these two endorsements, Ro ss Neely argues that Occidental should have indemnified Ross Neel y and defended it from punitive damages awarded in a tort suit arising from an accident. The accident occurred shortly after midnight when a Ross Neely truck rear-ended a car stopped at a traffic light. Ross Neely notified Occidental of the accident. Occidental hired an independent adjusting company to interview the drivers, appraise property damage, obtain a copy of the police accident report, and investigate medical claims. The car’s driver, Truss, suffered soft ti ssue injuries and three to four thousand dollars in medical expenses. Two of the passengers, whose injuries and medical4 expenses were greater than Truss’s, settled with Occident al for $33,000 and $165,000 respectively. Truss, however, rejected Occidental’s offer of $22,500 and sued. Truss’s complaint stated that he was “ knocked, shocked, br uised and contused” and sought over one million dollars incompensatory and punitive damages. Occidental referred the defense of the cas e to outside counsel Curtis Wright. Occidental wrote Ross Neely about th e suit, denying coverage for punitive damages and noting that Truss’s complaint sought damages in excess of the $1,000,000 policy limits. Occidental’s lette r confirmed that Wright would defend Ross Neely against all claims, but that Ro ss Neely had the right to engage separate counsel to defend it against punitive damage s and liability in excess of one million dollars. Ross Neely decided to rely on Wright to defend it against all claims. Wright did not notify Ross Neely that his representation was limited to defense of covered claims. In particular, Wright did not te ll Ross Neely that he was not defending the punitive damage claims, and indeed Wright moved for a directed verdict and submitted a posttrial motion on punitive damages. After filing his tort suit, Tru ss offered to settle for $150,000. Wright informed Occidental of the offer and recommended re jection. During the course of the suit, Occidental offered to settle for $30,000 - $35, 000. Truss rejected these offers. His5 last offer to settle, for $95,000, was rejected and the case went to trial. Ross Neely agreed that up until the day of trial, Truss’s case did not appear to have much merit. The trial did not go well for Ross Neely. The investigating police officer, who had not been interviewed by e ither Occidental or Ross N eely’s lawyer, testified that the truck had been traveling fast enough–and stopped late enough–to support an inference that the truck driver had been asleep at the wh eel. Truss presented evidence that Ross Neely had violated federal regulations by requiring its driver to remain on duty for thirty-six hours, twenty- one of which were spent driving. To make matters worse, the truck driver testified in a manner that contradicted his deposition testimony and fell asleep during the trial in front of the jury. The jury awarded Truss $45,000 in compensatory damages and $250,000 in punitive damages. Ross Neely moved to remit the punitive damages award. The state court denied the motion, finding Ross Neely “reprehensibl[y]” violated federal hours-of-service regulations by failing to m onitor its drivers’ compliance with the regulations and by requiring its driver to drive excessive hours. Occidental refused to pay the punitive damage award. Ross Neely borrowed $250,000, paid the verdict, then sued Oc cidental. Ross Neely moved for partial summary judgment, arguing that the punitiv e damages exclusion was contrary to Alabama public policy, that the Form F endorsement nullified the punitive damages6 exclusion, and that Occidental breached its duty of good faith. Pursuant to Rule 18, Alabama Rules of Appellate Procedure, the district court certified to the Alabama Supreme Court the question of whether Al abama public policy re quired coverage of punitive damages. The Alabama Supreme Court declined to answer the question. Occidental moved for summary judgment. The district court denied Ross Neely’s motion and granted Occidental’s motion. Ross Neely appealed. DISCUSSION This court reviews the district court’s grant of summary judgment de novo , applying the same standards us ed by the district court. See Killinger v. Samford Univ. , 113 F.3d 196, 198 (11th Cir. 1997). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show thatthere is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. Rule 56(c) . An issue of fact is material and ge nuine if a rational factfinder could find for the nonmoving party on a fact necessary to establish an element of the claim under applicable substantive law. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). In reviewing an insurance policy, an unambiguous endorsement supplants conflicting general terms. See Commercial Std. Ins. Co . v. General Trucking Co. , 4237 So. 2d 168 (Ala. 1982). Although this court s hould construe exclusions narrowly, it must not favor an insured contrary to the policy’s clear meaning. See, e.g., Wakefield
v. State Farm Mut. Auto. Ins. Co. , 572 So. 2d 1220, 1222 (Ala. 1990); State Farm Mut. Auto. Ins. Co. v. Lewis , 514 So. 2d 863, 865 (Ala. 1987). Likewise, an unambiguous contract must be enforced as written. See Kinnon v. Universal Underwriters Ins. Co. , 418 So. 2d 887, 888 (Ala. 1982). The Occidental policy clearly and unambiguously excludes pun itive damages: “This insurance does not apply to punitive and/or exemplary damage except in cases of wrongful death.” Therefore, Occidental need not cover Ro ss Neely’s punitive damage award unless the exclusion is contrary to public policy or was nullified by a contrary provision elsewhere in the policy. Under these circumstances, we cannot say that Alabama public policy bars Occidental from excluding coverage of punitive damages. Although no Alabama cases have reached the issue, other courts have approved similar exclusions. See, e.g., Lincoln Nat’l Health & Cas. Ins. Co. v. Brown , 782 F. Supp. 110 (M.D. Ga. 1992); Hodgin v. Allstate Ins. Co. , 935 S.W. 2d 614 (Ky. Ct. App. 1996). The Alabama agency responsible for regulating insurance specifically allows insurers to file for approval of policies containing punitive damages exclusions. See Rate Bulletin No.2 Alabama insurers must cover punitive dama ges for wrongful death. This is due to a quirk in Alabama law, which considers alldamages for wrongful death punitive. Unless Alabama law required coverage, decedents’ estates would lose access to insurance proceeds, even if th e insured was merely negligent. To avoid this forfeiture, Alabama law requires coverage of punitives for wrongful death. See, e.g., Northwestern Nat’l Cas. Co. v. McNulty , 307 F.2d 432, 439 (5th Cir. 1962) (partially superseded by statute on other grounds, United Servs. Auto. Ass’n v. Webb , 369 S.E.2d 196, 197 (Va. 1988)).
8 245, Ala. Dept. of Ins. (Dec. 1991 - Feb. 1992). 2 In fact, the particular exclusion at issue was deemed approved by the Alabama Department of Insurance. See, e.g., Jameson v. Mutual Life Ins. Co. , 292 F. Supp. 834, 836 (E.D. Tex. 1968) (when rider was approved by state department of insurance, it was lawfully part of the policy), aff’d in pertinent part , 415 F.2d 1017 (5th Cir. 1969). Ross Neely argues that Alabama public policy bars an insurer from excluding punitive damages in the specific instance wh en the insured is an innocent employer only vicariously liable. Cf. McNulty , 307 F.2d at 440. Its argument fails in light of the state court verdict finding Ross Neely liable for punitive damages. As the state court noted in denying Ross Neely’s posttrial mo tions, substantial evidence backed the verdict. For example, Ross Neely directed its driver to continue driving for hours before and after the accident (up to twenty-one of thirty-six hours). The court also noted that Ross Neely inadequately mon itored its employees’ compliance with hoursof-driving regulations. In light of these fact s, this court declines to speculate as to9 Alabama public policy regarding this specifi c issue, particularly when the Alabama Supreme Court has declined to rule on the issue. Neither did the Form F endorsement obligate Occidental to cover punitive damages. Form F re quired Occidental to provide $100,000 in coverage as required by Alabama statutes and regulations. The statute required coverage for negligence. Ala. Code § 37-3-18 (1975). The regulations requi red coverage for wanton acts as well as negligence. The district court ruled that the Alabama PSC exceeded its authority in expanding coverage. See Freeman v. City of Mobile , 11th Cir. 1999, __ F.3d __ (No. 97-6047, Oct. 25, 1999) (agency cannot amend or supplant act of Alabama legislature); Ex parte State Dept. of Human Resources , 548 So. 2d 176 (Ala. 1988) (statute prevails ove r conflicting regulation). See also Timmons v. City of Montgomery , 641 So. 2d 1263, 1266 (Ala. Crim. App. 1993). We need not reach the issue because even if the PSC could requi re coverage for wanton acts, Occidental’s duty to pay was never triggered. The purpose of Form F is only to serve as a guarantee to the public that the insurer will be liable for any damages awarde d if the insured is unable to pay. Form F does not alter the relations hip between the insured and the insurer. Therefore, Occidental served only as a sure ty to Ross Neely’s performance. See, e.g., Command Transp., Inc. v. B.J.’s Wholesale Club, Inc. , 62 F.3d 18, 20 (1st Cir. 1995). Since3 Occidental wrote Ross Neely, “punitiv e damages were not contemplated nor coverage afforded therefore by this Policy of Insurance. Thus, at the present time, we will provide you with the defense, but will not indemnify you for punitive damage awards if any be rendered against you.” Noting that the complaint sought in excess of $1,000,000, Occidental stated, “This am ount exceeds the coverage afforded by our policy...” Ross Neely’s Complaint treated this letter as a reservation of rights. Even though Occidental’s letter did not specifically reserve its rights, it notified the insured that Occidental was not planning to pay the entire damages Truss sought. This suffices to trigger the enhanced duty of good faith.
10 Ross Neely was able to borrow the money and pay Truss his punitive damages, Occidental’s duty to pay never arose. See, e.g., Service Stages, Inc. v. Central Sur. &
Ins. Co. , 165 So. 248 (Ala. 1936); Fidelity & Cas. Co. v. Jacks , 165 So. 242 (Ala. 1936). Further, even if Occidental had paid, Ross Neely would have been required to reimburse Occidental. Th erefore, even if Occidentaltheoretically breached a duty to pay, Ross Neely suffered no damages. The court also found that there was no genuine issue of material fact as to whether Occidental fulfille d its duty of good faith in defending Ross Neely. In defending an insured under a reservation of rights, 3 an insurer has a potential conflict of interest. Because the insured may face greater liability than the insurer, whose liability is capped by policy exclusions a nd limits, the insurer’s duty of good faith includes four elements: (1) the insurer must thoroughly investigate the cause of the accident and the severity of the plaintiff’s injuries; (2) the insurer must retain competent defense counsel who will represent only the insured; (3) the insurer must11 fully inform the insured of all developments relevant to its cove rage and the progress of the lawsuit, including all settlement offe rs; and (4) the insurer must refrain from any action that demonstrates a greater concern for the insurer’s monetary interest than for the insured’s financial exposure. See L&S Roofing Supply Co. v. St. Paul Fire &
Marine Ins. Co. , 521 So. 2d 1298, 1303 (Ala. 1987). There is no issue of material fact as to whether Occidental conducted an adequate investigation. O ccidental hired independent i nvestigators who interviewed witnesses, investigated the accident scene, examined the police report, and obtained medical records. Ross Neely argues the i nvestigation was insufficient because no one interviewed the state trooper who investigat ed the accident. This interview would have supposedly revealed that Ross Neely’ s driver was driving approximately fifty miles per hour in a forty mile-per-hour zone, that his line of sight was unrestricted for 2500 feet, and that skid marks showed he started to brake only thirty feet from the car. All this information was available from Occidental’s investigation or from Ross Neely’s own sources. The failure to inte rview the police officer does not create a material issue of fact as to th e adequacy of the investigation. The second element is the duty to enga ge adequate defense counsel. Ross Neely does not dispute that Wright defende d it adequately. Th e evidence shows that Wright properly regarded his client to be Ross Neely, not Occidental.12 Third is the duty to keep Ross Neely in formed about the progress of the case, including settlement offers. Occidental told Ross Neely that it was not planning to cover punitive damages and that Ross Neel y should consider hiring its own counsel to represent it on the punitive damages claims . As the lawsuit progressed, Occidental informed Ross Neely of two settlement demands from the tort plaintiff, and Ross Neely agreed those demands should be rejected. As for the fourth element–acting with a greater concern for Occidental’s interest than Ross Neely’s–there is no material issue of fact. Merely refusing to settle does not mean the insurer breached its duty. See Universal Underwriters Ins. Co. v. East Cent. Ala. Ford-Mercury, Inc. , 574 So. 2d 716, 726 (Ala. 1990). Occidental settled the claims of two passengers with more serious injuries than Tr uss’s. As the district judge noted, both Ross Neely and Occidental consid ered the financial risk in proceeding to trial to be slight. Events proved them wrong. Occidental’s decision not to settle before trial must be viewed in light of the facts available to it at the time, not in hindsight. When Occidental and Wright evaluated the advisability of settling, it appeared Truss had no basis for punitive damages. Ross Neely concurred in this assessment at the time. Nor is an insurer under a duty to settle a compensatory damage award merely to minimize its insured’s e xposure to punitive damages. See Lira v. Shelter Ins. Co. ,13 913 P.2d 514, 516 (Colo. 1996). Ross Neely has presente d no evidence to create a material issue of fact that Occidental breached its enhanced duty of good faith. The district court correctly granted summary judgment.
AFFIRMED.