2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-8-2015

Regis Insurance Co v. AM Best Co Inc

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Recommended Citation

"Regis Insurance Co v. AM Best Co Inc" (2015). 2015 Decisions. Paper 348.

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 NOT PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

_____________ 

No. 14-3040 

_____________ 

REGIS INSURANCE COMPANY, 

 Appellant 

 v. 

 A.M. BEST COMPANY, INC. 

_____________ 

 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

District Court No. 2-10-cv-03171 

District Judge: The Honorable Petrese B. Tucker 

 

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 

March 16, 2015 

Before: SMITH, JORDAN, and VAN ANTWERPEN, Circuit Judges

(Filed: April 8, 2015) 

_____________________ 

 OPINION

_____________________ 

 

SMITH, Circuit Judge. 

 

 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does 

not constitute binding precedent. 
2 

A.M. Best (“Best”) is a rating agency that specializes in rating the financial 

health of insurance companies. On January 12, 2010, Best issued a press release 

regarding Regis Insurance (“Regis”), which is the basis of Regis’ defamation and 

commercial disparagement claims against Best. The press release began: 

A.M. Best Co. has downgraded the financial strength rating to B- 

(Fair) from B+ (Good) and issuer credit rating to “bb-”from “bbb-” 

of Regis Insurance Company (Regis) (Wayne, PA). The outlook for 

both ratings has been revised to negative from stable. 

These rating actions reflect the recent disclosure of the lack of 

financial flexibility at Regis’ privately held parent, Tiber Holding 

Corporation (Wilmington, DE), due to that organization’s high 

consolidated financial leverage, lack of access to additional capital 

and other operating issues.1

 

 In November 2009, as part of its annual rating process, Best met with Regis 

to discuss Regis’ financial health. At that meeting, Best requested the financial 

statements of Regis’ parent, Tiber Holding (“Tiber”), which Regis promptly 

provided. Best’s published rating methodology considers the financial condition of 

parent corporations to be potentially relevant. Although Best claims it had 

previously requested Tiber’s financial statements, it is undisputed that it had not 

received them. In reviewing Tiber’s financial statements, Best learned that Tiber’s 

liabilities exceeded its assets by a factor of 3.5, and that it had a negative net worth 

 1

 Regis also argued that other statements made later in the press release, 

which did not specifically relate to Tiber, were defamatory. As these statements 

were not meaningfully discussed in the District Court’s opinion from which Regis 

appeals, or in Regis’ brief, they do not provide a potential basis for reversal. 
3 

of nearly $45 million. The primary reason was that Tiber owed the Superintendent 

of Insurance of New York, in its capacity as Liquidator of Nassau Insurance 

(“Nassau”),2

 nearly $43 million. The $43 million was split between two 

judgments, with final judgment dates (according to the financial statements) of 

August 2000 and May 2002; both of which had been accumulating interest.3

 After multiple levels of internal review at Best, including an appeal by 

Regis, and conversations between Best and the Pennsylvania Department of 

Insurance (initiated at Regis’ request), a senior rating committee at Best decided to 

downgrade Regis over “concern[] about [the] uncertainty” surrounding Tiber’s 

financial situation. In fact, given that Tiber was insolvent, guidelines in Best’s 

 2

 “Through a subsidiary, Tiber owned Nassau . . . until Nassau was ordered 

into receivership.” Levin v. Tiber Holding Corp., No. 98-8643, 2000 WL 

33911225, at *1 (S.D.N.Y. Aug. 14, 2000), vacated, 277 F.3d 243 (2d Cir. 2002). 

3

 The fallout of the collapse of Nassau has been before this Court twice, with 

both Richard and Jeanne DiLoreto filing unsuccessful appeals. The DiLoreto 

couple have owned and controlled Regis, Tiber, Nassau, and a dizzying array of 

related, largely sham entities. See, e.g., Levin v. Tiber Holding Corp., 277 F.3d 

243, 248 (2d Cir. 2002) (“[Richard] DiLoreto admitted, under cross-examination, 

that he was unaware whether . . . bonds [passed between entities he owned, in an 

attempt to circumvent a consent decree] . . . were real”). Our prior decisions are In 

re DiLoreto, 266 F. App’x 140, 145 (3d Cir. 2008) (Richard’s “failure to disclose 

his . . . beneficial interests in various corporations and offshore entities, as well as 

his false testimony . . . is sufficient evidence to support the denial of his discharge 

[of debt in bankruptcy]”); and Di Loreto v. Costigan, 351 F. App’x 747 (3d Cir. 

2009) (affirming dismissal of Jeanne’s claims that the Superintendent of Insurance 

of New York’s efforts to enforce judgments against her resulted in a violation of 

her due process rights). 
4 

published methodology suggested that Regis should perhaps have been 

downgraded all the way to a C or a C+ rating (a significantly more severe 

downgrade than Regis actually received). 

 However, the District Court denied Best’s motion for summary judgment, 

stating: 

The Court finds that, without providing additional information, 

analysis, and context, it was misleading for Best to suggest that there 

had been a “recent disclosure of the lack of financial flexibility at 

Regis’ privately held parent, Tiber Holding Corporation.” Best’s use 

of the term “recent” implies that something vague and unspecified had 

happened at Tiber in the last year to render it financially inflexible, 

and thereby putting Regis at risk. But in reality, Tiber had been 

insolvent for almost ten years at the time Best published its press 

release. News of Tiber’s financial condition was only “recent” in the 

sense that Best had recently learned of it. There is a marked and 

appreciable difference between implying that Regis’ parent company 

is experiencing recent financial difficulties and clearly stating that 

Regis has been operating for almost ten years despite its parent 

company’s financial difficulties (and that Best is only now learning of 

it). 

Regis Ins. Co. v. A.M. Best Co., Inc., No. 10-3171, 2013 WL 775521, at *8 (E.D. 

Pa. Mar. 1, 2013) (footnote omitted). 

 The District Court concluded that the press release “implie[d] that something 

vague and unspecified had happened at Tiber in the last year” by not considering 

the fact that the press release specified what that “something” was: the “recent 

disclosure of the lack of financial flexibility.” The phrasing of the press release 

does not imply that Tiber’s lack of financial flexibility was itself recent, and 
5 

indeed, to the extent that it implies anything other than what it literally says, it 

implies that the lack of financial flexibility was not recent.4

 Moreover, prior to 

publishing the press release, Best twice showed Regis draft press releases 

containing the identical “recent disclosure of the lack of financial flexibility” 

language of which it now complains. Although Regis responded by disputing the 

merits of the downgrade and threatening to sue over the downgrade, Regis never 

took issue with any of the specific language used in the press release. 

 After allowing Regis to proceed to trial and present its case for six days, the 

District Court granted judgment as a matter of law in favor of Best. The District 

Court concluded that Regis did not introduce sufficient evidence to allow a 

reasonable jury to conclude that Best acted with “actual malice” in issuing the 

press release. The District Court then denied Regis’ request for a new trial. Regis 

Ins. Co. v. A.M. Best Co., Inc., No. 10-3171, 2014 WL 2094199, at *1 (E.D. Pa. 

May 20, 2014). Regis now appeals.5

 4

 Why else would the press release specify that there was a “recent 

disclosure of the lack of financial flexibility,” as opposed to simply stating that 

there was a “recent lack of financial flexibility?” 

5

 The District Court exercised jurisdiction pursuant to 28 U.S.C. § 1332(a); 

we exercise jurisdiction pursuant to 28 U.S.C. § 1291. “We exercise plenary 

review of the District Court’s grant of judgment as a matter of law,” LaVerdure v. 

Cnty. of Montgomery, 324 F.3d 123, 125 (3d Cir. 2003), and review “a motion for 

a new trial [for] abuse of discretion, except where a district court bases its denial of 

the motion on an application of law, in which case an appellate court’s review is 

plenary.” McKenna v. City of Philadelphia, 582 F.3d 447, 460 (3d Cir. 2009). 
6 

 As there is no dispute that the literal words of the press release were true, 

Regis pursues a theory of defamation by implication or innuendo. “It is the duty of 

the court in all cases to determine whether the language used in the objectionable 

article could fairly and reasonably be construed to have the meaning imputed in the 

innuendo. If the words are not susceptible of the meaning ascribed to them by the 

plaintiff, and do not sustain the innuendo, the case should not be sent to a jury.” 

McAndrew v. Scranton Republican Pub. Co., 72 A.2d 780, 783 (Pa. 1950). On 

appeal, Regis makes no attempt whatsoever to defend the District Court’s 

reasoning that the use of the word “recent” was misleading—instead it simply 

argues that “[t]he issue of falsity should have been submitted to the jury because 

the trial court had already determined that the statements in the Press Release were 

capable of a defamatory meaning at the summary judgment stage.” As the words 

in the press release cannot be properly construed to suggest that the “lack of 

financial flexibility” was itself “recent,” Regis was not and is not entitled to have 

its claim considered by a jury.6

 We will affirm the District Court’s denial of Regis’ motion for a new trial. 

 6 See Burton v. Teleflex Inc., 707 F.3d 417, 434 (3d Cir. 2013) (under 

Pennsylvania law, “[w]hether a communication is capable of defamatory meaning 

is a ‘threshold issue’ to be determined by the court”); see also Gray v. St. Martin’s 

Press, Inc., 221 F.3d 243, 250 (1st Cir. 2000) (appellate courts exercise de novo

review of whether a statement is capable of defamatory meaning).