NOT RECOMMENDED FOR PUBLICATION

File Name: 21a0543n.06

Case Nos. 20-3856/3895

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

SECRETARY OF LABOR,

Plaintiff,

GEMINI INSURANCE COMPANY,

Intervenor Plaintiff-Appellee/Cross-Appellant,

v.

THOMAS E. POTTS, JR.; FIDUCIARY TRUST 

SERVICES, INC.,

Defendants-Appellants/Cross-Appellees.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE 

SOUTHERN DISTRICT OF 

OHIO

O P I N I O N

Before: GUY, COLE, and STRANCH, Circuit Judges.

COLE, J., delivered the opinion of the court in which GUY and STRANCH, JJ., joined. 

STRANCH, J. (pp. 9–11), delivered a separate concurring opinion.

COLE, Circuit Judge. Thomas Potts, Jr., and his company, Fiduciary Trust Services, Inc.

(collectively, “Potts”), appeal the district court’s order granting summary judgment to their

insurance provider, Gemini Insurance Company. In 2016, the U.S. Secretary of Labor sued Potts

and his company over potential violations of the Employee Retirement Income Security Act 

(“ERISA”). Shortly after, Gemini intervened in the action seeking a judicial determination that it 

had no duty to defend Potts under the plain terms of their insurance policies. Gemini then moved 

for judgment on the pleadings, arguing the ERISA claims fell outside of the policies’ coverage and 
Case Nos. 20-3856/3895, SOL, et al. v. Potts, et al.

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Potts failed to provide it with the notice required to trigger its obligations. The district court denied 

that motion, but it ultimately granted Gemini summary judgment after concluding the policy 

explicitly disclaimed coverage of ERISA actions. Potts appealed that order. To offer an alternative 

ground for us to affirm the judgment in its favor, Gemini then conditionally cross-appealed the 

denial of its motion for judgment on the pleadings. Because we affirm the district court’s summary 

judgment grant, we dismiss Gemini’s cross-appeal as moot.

I.

A. FACTUAL BACKGROUND

Fiduciary Trust Services, Inc., provides independent, third-party trustee services to 

employee stock ownership programs. It is owned and operated by its president, Thomas Potts. In 

2010, Triple T Transport retained Potts to serve as a limited purpose trustee for its employee stock 

ownership plan. In this capacity, Potts executed a Stock Purchase Agreement on Triple T 

Transport’s behalf in early 2011. When executing the agreement, however, Potts relied on a flawed 

stock valuation opinion. This resulted in the stock being significantly overvalued, which 

ultimately caused a substantial financial loss to Triple T Transport’s employee stock ownership 

plan. 

The Secretary of Labor first contacted Potts about the transaction in 2012. After years of 

investigation into possible ERISA violations, the Secretary entered into a tolling agreement with 

Potts in February 2015. The agreement set out specific dates after which the Secretary could bring 

suit, and in exchange, Potts agreed to “waive any defense based on [any] limitations periods . . . 

that would otherwise be available to [Potts] concerning the timeliness of any legal proceedings 

with respect to the Claims that may be brought against [him] by the Secretary.” (Mot. for Summ. 

J. (Tolling Agreement), R. 91-11, PageID 1339–40.)
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On March 26, 2015, the Secretary sent Potts a Voluntary Compliance Notice Letter 

informing him that it had “concluded its investigation” of the Triple T Transport matter and 

determined that Potts “may have violated several provisions of ERISA.” (Mot. for Summ. J. 

(Notice Letter), R. 91-14, PageID 1346.) The letter detailed two suspected ERISA violations at 

some length, but it did not explicitly threaten litigation. Rather, its stated purpose was “to advise” 

Potts of its findings and “give [him] an opportunity to comment before the Department [of Labor]

determines what, if any, action to take.” (Id. at PageID 1346.) The letter cautioned, however, that 

Potts’s “failure to correct the violations and restore the losses may result in referral of this matter 

to the Office of the Solicitor of Labor for possible legal action.” (Id. at PageID 1351.) Potts chose 

not to take corrective action, instead asserting that “the transaction fully complied with ERISA at 

its inception” in a letter to the Secretary. (Mot. for Summ. J. (Wells Letter), R. 91-15, PageID 

1354.) 

The Secretary notified Potts on December 10, 2015, that it had referred the matter to its

Solicitor “for consideration of filing an action in federal court.” (Intervenor Compl. Ex. 5, R. 10-

6, PageID 121.) Potts notified his professional liability insurance carrier—Gemini Insurance 

Company—of the impending claim the next day. 

Potts had a longstanding relationship with Gemini. He had used Gemini as his company’s

professional services liability insurance carrier since 2010. Most relevant here, though, were the 

policies in place from September 1, 2014, to September 1, 2015 (“2014 policy”), and from 

September 1, 2015, through September 1, 2016 (“2015 policy”). Both policies excluded several 

claims from their coverage. The 2014 and 2015 “EXCLUSIONS” sections contained the 

following admonition: 
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This Policy does not apply to any Claim or Claim Expenses Arising Out Of any 

actual or alleged: 

. . . .

J) Violation of or failure to comply with the Employee Retirement Security Act 

of 1974 (ERISA) or similar provisions of any Federal, State or local statutory 

law or common law. 

(Mot. for Summ. J. (2014 policy), R. 91-23, PageID 1400–01; Mot. for Summ. J. (2015 policy), 

R. 91-24, PageID 1439–40.)

The policies were also both “claims-made notice” policies, rather than “occurrence” 

policies. Occurrence policies provide coverage for acts done during the policy period regardless 

of when the claim is brought. Claims-made notice policies, on the other hand, provide coverage 

only after the carrier receives notice during a specified period. Under the 2014 and 2015 policies, 

Gemini was not obligated to pay Potts’s claims unless it received “[w]ritten notice” of the claims 

“during the Policy Period or within sixty (60) days thereafter.” (2014 policy, R. 91-23, PageID 

1397; 2015 policy, R. 91-24, PageID 1436.) Additionally, under both policies, Potts was not 

covered for “Wrongful Acts” that occurred “[p]rior to the inception date of th[e] Policy” that he

“knew,” or “could have reasonably foreseen,” “might result in a Claim.” (2014 policy, R. 91-23, 

PageID 1397; 2015 policy, R. 91-24, PageID 1436.) 

B. PROCEDURAL BACKGROUND

On June 27, 2016, the Secretary of Labor filed an ERISA action against Potts, his company, 

and Triple T Transport. Gemini moved to intervene on September 20, 2016, seeking a judicial 

declaration that it was not obligated to defend or indemnify Potts under either the 2014 or 2015 

professional liability insurance policies. After Gemini was permitted to intervene, it moved for 

judgment on the pleadings. The district court denied Gemini’s motion and bifurcated the case, 

separating the claims that Gemini brought against Potts from the claims that the Secretary brought 
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against him. The district court stayed Gemini’s action until the Secretary’s claims settled in 

November 2018. 

After the stay was lifted, Potts and Gemini filed cross-motions for summary judgment. 

Gemini argued that the exclusions in the 2014 and 2015 policies were unambiguous and absolved 

them of any duty to defend Potts. And even if the policy required Gemini to defend Potts, Gemini 

argued, Potts failed to provide it with the notice required to avail themselves of coverage. 

Conversely, Potts asserted that the ERISA exclusions were ambiguous and did not exclude 

coverage of their claim. In their view, reading the exclusion to prohibit all ERISA claims would 

undermine the nature of the professional services insurance contract between the parties. 

The district court ultimately denied Potts’s motion and granted summary judgment for 

Gemini. See Gemini Ins. Co. v. Potts, No. 2:16-cv-612, 2020 WL 4000977 (S.D. Ohio July 15, 

2020). In its order, the court first determined that the ERISA exclusion in the 2014 and 2015 

insurance policies was unambiguous and “broadly applie[d] to any claim or claim expense arising 

out of ERISA violations.” Id. at *4. Because “Gemini identified the ERISA statute and specified 

in clear, exact terms that the policy does not apply to any claim or claim expenses arising out of 

an ERISA violation,” the court concluded that it was bound to “give the plain language of the 

exclusion effect” and hold that Gemini was not obligated to defend or indemnify Potts in this 

action. Id. Because Potts’s claim fell outside the policy’s coverage, the district court did not 

consider whether Potts satisfied the policies’ claims-made notice requirements for coverage to 

apply.

Potts appealed the district court’s order. Gemini then conditionally cross-appealed the 

district court’s denial of its motion for judgment on the pleadings, see Acosta v. Potts, No. 2:16-

cv-612, 2017 WL 4418579, at *7 (S.D. Ohio Oct. 5, 2017), arguing that even if this court 
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concluded its policies did cover ERISA claims, Potts’s failure to abide by the claims-made notice 

provision defeated coverage. For the following reasons, we affirm the district court’s grant of 

summary judgment and dismiss Gemini’s cross-appeal as moot.

II.

We review a district court’s summary judgment grant de novo. St. Mary’s Foundry, Inc. 

v. Emps. Ins. of Wausau, 332 F.3d 989, 991 (6th Cir. 2003). Because our jurisdiction is predicated 

on diversity of citizenship, we apply the choice-of-law rules of the forum state, Ohio. Great Am. 

Ins. Co. v. E.L. Bailey & Co., Inc., 841 F.3d 439, 443 (6th Cir. 2016). Although “Ohio choice-oflaw principles strongly favor” choice-of-law provisions in contracts, Tele-Save Merch. Co. v. 

Consumers Distrib. Co., Ltd., 814 F.2d 1120, 1122 (6th Cir. 1987), it appears neither of the policies

has a choice-of-law provision. But because both parties assume Ohio contract law applies, we 

apply Ohio law. Baker Hughes Inc. v. S&S Chem., LLC, 836 F.3d 554, 560 (6th Cir. 2016).

Under Ohio law, “[a]n insurance policy is a contract whose interpretation is a matter of 

law.” City of Sharonville v. Am. Emps. Ins. Co., 846 N.E.2d 833, 836 (Ohio 2006). “When the 

language of a written contract is clear, a court may look no further than the writing itself to find 

the intent of the parties.” Cincinnati Ins. Co. v. CPS Holdings, Inc., 875 N.E.2d 31, 34 (Ohio 

2007). The “[w]ords and phrases” used, moreover, “must be given their plain and ordinary 

meaning ‘unless manifest absurdity results, or unless some other meaning is clearly evidenced 

from the face or overall contents of the instrument.’” Laboy v. Grange Indem. Ins. Co., 41 N.E.3d 

1224, 1227 (Ohio 2015) (quoting Alexander v. Buckeye Pipe Line Co., 374 N.E.2d 146, 148 (Ohio 

1978)). But if the terms of the policy are susceptible to more than one interpretation, “they ‘will 

be construed strictly against the insurer and liberally in favor of the insured.’” Am. Emps. Ins. Co., 

846 N.E.2d at 836 (quoting King v. Nationwide Ins., Co., 519 N.E.2d 1380, 1380 (Ohio 1988)). 
Case Nos. 20-3856/3895, SOL, et al. v. Potts, et al.

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This is “particularly true” where, as here, the provisions at issue “purport to limit or qualify 

coverage under the policy.” Westfield Ins. Co. v. Hunter, 948 N.E.2d 931, 935 (Ohio 2011). 

On appeal, Potts argues that we should look beyond the plain text of the 2014 and 2015 

policies to fully appreciate the parties’ intent. Specifically, he requests we either read the language 

of Gemini’s annual renewal application to limit the ERISA exclusion’s application, find that this 

particular ERISA claim falls within an amendatory endorsement (which should trump the 

exclusion), or determine that excluding all ERISA claims would conflict with the policies’ 

definition of “professional services.” In any event, Potts argues that because the policy is open to 

more than one interpretation, he is entitled to a liberal construction of the policy in his favor. 

These arguments, however, are unavailing under Ohio law because they ignore the plain 

language of the 2014 and 2015 policies. Both policies plainly state that they “do[] not apply to 

any Claim or Claim Expenses Arising Out Of any actual or alleged[] . . . . Violation[s] of or failure 

to comply with [ERISA] or similar provisions of any Federal, State, or local statutory law or 

common law.” (2014 policy, R. 91-23, PageID 1400–01; 2015 policy, R. 91-24, PageID 1439–

40.) As the district court properly concluded, those policy exclusions concretely identified the 

ERISA statute and “specified in clear, exact terms that the policy does not apply to any claim or 

claim expenses arising out of an ERISA violation.” Gemini Ins. Co., 2020 WL 4000977, at *4

(emphasis added). Under Ohio law and on these facts, neither the renewal applications nor the 

amendatory endorsements alter this policy’s broad prohibition on ERISA claims. 

Take, for example, Potts’s argument on the renewal applications. In his view, the renewal 

applications are part of the insurance policy and “make abundantly clear” that the parties’ intent 

was to provide insurance for his actions as an employee stock ownership program fiduciary. Yet 

the text of the policies’ exclusion applies to all ERISA violations by its plain terms, as the district 
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court observed. Id. It does not except Pott’s actions as an employee stock ownership program

fiduciary. 

Potts’s argument on the impact of the amendatory endorsement on the ERISA exclusion 

fails for similar reasons. Amendatory Endorsement No. 2 defines “professional services” as “the 

performance of providing services as a trustee for Employee Stock Ownership Plans for others for 

a fee.” (Intervenor Compl., R. 19-1, PageID 208.) Potts argues he provided Triple T Transport 

“professional services” by serving as its trustee for a fee and he is therefore entitled to coverage 

under the policy. As Gemini argues and the district court stressed, however, there are professional 

services claims that could exist outside of the policies’ ERISA exclusion. See Gemini Ins. Co., 

2020 WL 4000977, at *5. For example, Potts—acting as a trustee—could advise employment 

stock ownership plans on corporate governance issues or executive compensation, which could 

give way to negligent representation claims. Id.; see also Flanagan Lieberman Hoffman & Swaim 

v. Transamerica Life & Annuity Co., 228 F. Supp. 2d 830, 849 (S.D. Ohio 2002). Under those 

circumstances, claims against Potts would be covered by Gemini’s insurance policy. But here, the 

policies unambiguously state that they do not apply to any ERISA claims. Consequently, the 

district court correctly held that Gemini had no duty to defend Potts against the Secretary’s ERISA 

claims. Gemini Ins. Co., 2020 WL 4000977, at *5; see also Cincinnati Indem. Co. v. Martin, 

710 N.E.2d 677, 678 (Ohio 1999) (“[I]f it is established that the claim falls within an exclusion to 

coverage, the insurer is under no obligation to defend the insured”).

III.

The district court properly granted Gemini summary judgment. Accordingly, we affirm 

the district court’s judgment and dismiss Gemini’s conditional cross-appeal as moot. 
Case Nos. 20-3856/3895, SOL, et al. v. Potts, et al.

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JANE B. STRANCH, Circuit Judge, concurring. Although I join the majority opinion to 

affirm, I write separately to address my concerns about the limited policy underlying this case as 

it relates to the expansive nature of ERISA’s fiduciary duties and the statute’s broad applicability.

This case is a dispute over what those in the ERISA world would call fiduciary insurance. 

The record tells us what the parties agreed to be Potts’s work during the policy period. The 

Professional Liability Insurance policy with Gemini specified that Potts purchased coverage for 

his work “providing services as a trustee for Employee Stock Ownership Plans for others for a 

fee.” 

For those who have waded into ERISA’s deep waters, this policy language immediately 

signals that Potts’s work falls squarely within the realm of that statute. ERISA’s underlying 

purpose is clear: “establish a ‘uniform regulatory regime’ for plan administration that protects 

monies belonging to plan beneficiaries” being held and managed by others. Wilson v. Safelite 

Grp., Inc., 930 F.3d 429, 434 (6th Cir. 2019) (quoting Milby v. MCMC LLC, 844 F.3d 605, 609 

(6th Cir. 2016)). At bottom, ERISA is all about fiduciary responsibilities. It “establish[es] 

standards of conduct, responsibility, and obligation” for those managing employee benefit plans 

and “provid[es] for appropriate remedies, sanctions, and ready access to the Federal courts” when 

those standards are not met. 29 U.S.C. § 1001(b). ERISA plan administrators—such as those 

acting as ESOP trustees—have the highest fiduciary duties known to the law, Gregg v. Transp. 

Workers of Am. Int’l, 343 F.3d 833, 841 (6th Cir. 2003), much of which Congress drew from the 

common law of trusts, Varity Corp. v. Howe, 516 U.S. 489, 496 (1996).

To put it mildly, a professional liability policy for one “providing services as a trustee for 

Employee Stock Ownership Plans” that excludes all ERISA claims offers little. ERISA’s 

“uniform regulatory regime over employee benefit plans” virtually occupies the field. Aetna 
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Health Inc. v. Davila, 542 U.S. 200, 208 (2004). Section 1132(a) of ERISA completely preempts 

“any state-law cause of action that duplicates, supplements, or supplants the ERISA civil 

enforcement remedy” because such actions “conflict[] with the clear congressional intent to make 

the ERISA remedy exclusive.” Hogan v. Jacobson, 823 F.3d 872, 879 (6th Cir. 2016) (quoting 

Aetna Health, Inc., 542 U.S. at 209). Following years of near complete ERISA preemption, the 

courts acknowledged that some claims that peripherally involve an ERISA plan may fall outside 

the coverage of the statute. We have described claims that are not completely preempted as those 

that stem from a duty that “is not derived from, or conditioned upon, the terms of” an ERISA 

plan. Gardner v. Heartland Indus. Partners, LP, 715 F.3d 609, 614 (6th Cir. 2013). One would 

think that this narrow exception would not apply to an individual like Potts whose work is 

providing services as a trustee for ESOPs. The few hypothetical scenarios that Gemini provides 

as examples of how the ERISA exclusion does not wipe away all coverage for a policy intended 

to cover Potts’s work demonstrate just how little coverage the professional liability policy offers.

Indeed, this policy and its exclusion are close to the line of an illusory policy. Courts will 

not enforce illusory insurance provisions or policies, which are those that appear to provide the 

insured benefits but do not actually do so. See Irondale Indus. Contractors, Inc. v. Va. Sur. Co., 

754 F. Supp. 2d 927, 933 (N.D. Ohio 2010); see also Ian Weiss, Comment, The Illusory Coverage 

Doctrine: A Critical Review, 166 U. Penn. L. Rev. 1545 (2018). Given Potts’s business and the 

knowledge that the insurer had of that work, it seems very unlikely that Potts would have 

knowingly agreed to pay so much for so little coverage of the very work he would want and need 

insurance to cover.

Ohio law, however, governs. Like many states, Ohio recognizes the unequal bargaining 

powers of the insured and insurer in some areas. For example, Ohio law requires that where policy 
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language is ambiguous, courts must construe that language “strictly against the insurer and 

liberally in favor of the insured.” Smith v. Erie Ins., 69 N.E.3d 711, 713 (Ohio 2016). I join the 

majority, however, because Ohio law also requires that we apply—and prohibits the construction 

of—clear and unambiguous language, like that found in Potts’s policy with Gemini. See SuderBenore Co., Ltd. v. Motorists Mut. Ins. Co., 995 N.E.2d 1279, 1283 (Ohio Ct. App. 2013). Ohio 

law has also embraced a very narrow version of the illusory policy doctrine. “When there is some 

benefit to the insured from the face of the endorsement, it is not an illusory contract.” Ward v. 

United Foundries, Inc., 951 N.E.2d 770, 774 (Ohio 2011). Indeed, an illusory policy exists only 

when an “exclusion ‘eliminates all coverage under a policy.’” Rogers v. Sure Conveyors, Inc., 

510 F. Supp. 3d 515, 521 (N.D. Ohio 2021) (emphasis added) (quoting Cincinnati Specialty 

Underwriters Ins. Co. v. Larschied, No. 1-14-01, 2014 WL 4672392, at *8 (Ohio Ct. App. Sep. 

22, 2014)). Perhaps that view of what is illusory suggests an intention to place on the purchaser 

the responsibility of close review of every policy provision, which makes this case a cautionary 

tale for the purchase of fiduciary policies.