1 14-4180-cv Weaver v. Axis Surp lus Insurance Company UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AF TER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PR OCEDURE 32.1 AND THIS CO URT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMEN T FILED WITH THIS CO URT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA BASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMM ARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Seco nd Circuit, held at the Thurgood Marshall United Stat es Courthouse, 40 Foley Sq uare, in the City of New York, on the 7 th day of March, tw o thousand sixteen.
PRESENT: JOHN M. WALKER, JR., REENA RAGGI, PETER W. HALL, Circuit Judges

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---------------------------- ---------------------------- -------------- EDWARD MORRIS WEAVER, an individual, Plaintiff-Appellant , v. No. 14-4180-cv AXIS SURPLUS INSURANCE COMPANY, an Illinois corporation, Defendant-Appellee ,

---------------------------- ---------------------------- ------------- APPEARING FOR APPELLANT: JAMES W. SPERTUS (Ezra D. Landes, on the brief ), Spertus, Landes & Umhofer, LLP, Los Angeles, California.
APPEARING FOR APPELLEE: MATT HEW I. SCHIFFHAUER, Kaufman Borgeest & Ryan LLP, Valhalla, New York.2 Appeal from a judgment of the United States District Court for the Eastern District of New York (Sandra J. Feuerstein, Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the judgment entered on November 3, 2014, is AFFIRMED. Plaintiff Edward Morris Weaver, former CEO of Multivend, LLC, sued defendant Axis Surplus Insuran ce Company for breach of contract and a declaratory judgment, challenging its refusal to pr ovide coverage under Multive nd’s directors and officers liability insurance policy (the “P olicy”) in a criminal prosec ution brought against him by the U.S. Department of Justice (the “DOJ” ). On appeal from a pre-discovery award of summary judgment to Axis, W eaver argues the district court erred in determining as a matter of law that the Policy excluded coverage for defense of the DOJ action because it related to a claim first made prior to the Policy’s effective period. Because the parties do not dispute the underlying material facts, the case turns on the interpretation of an insurance contract, a question of law that we review de novo. See CGS Indus., Inc. v. Charter Oak Fire Ins. Co., 720 F.3d 71, 76 (2d Cir. 2013); see al so MBIA Inc. v. Fed. Ins. Co., 652 F.3d 152, 165 (2d Cir. 2011) (stating that insurer b ears burden of proving that claim falls within scope of exclusion). 1

1 The parties agree that New York law governs this diversity action.3 In conducting this review, we assume the parties’ familiarity with the facts and record of prior proceedings, which we refere nce only as necessary to explain our decision to affirm, largely for reasons st ated by the district court in its thorough and well-reasoned opinion. See Weaver v. Axis Surplus Ins. Co., No. 13-CV-7374 (SJF)(ARL), 2014 WL 5500667 (E.D.N.Y. Oct. 30, 2014). The district c ourt determined that the Policy’s “Exclusions” in section IV an d “Limits of Liability” under s ection V provided independent and alternative grounds for Axis’s refusal to defend in the criminal action. Because we reach that same conclusion as to Se ction IV, we do not address Section V. 2 See, e.g., New York Univ. v. Cont’l Ins. Co., 87 N.Y.2d 308, 323, 63 9 N.Y.S.2d 283, 292 (1995) (observing that “coverage is the net total of policy inclusions minus exclusions”). Section IV.A.2.a of the Policy excludes coverage for “any Claim . . . in any way involving . . . any demand, suit or othe r proceeding pending . . . against any Insured on or prior to [February 20, 2008], or any Wrongful Act , fact, circumstance or situation underlying or alleged therein.” J.A. 169; see also id. at 158. 3 Weaver does not dispute that the DOJ action constitutes a “Claim,” or that the DOJ action invo lves the same facts and circumstances underlying the November 26, 2007 letter that Multivend received from the Securities Division of the Maryland Attorney General’s Office (the “Division”).

2 Nor do we address Weaver’s cl aim for breach of a duty of good faith and fair dealing, which he does not pursue on appeal. See Jackler v. Byrne, 658 F.3d 225, 233 (2d Cir. 2011) (stating that such claims not ra ised in brief are deemed abandoned).

3 The Policy applies boldface type to defined terms.4 Rather, Weaver contends only that the Nove mber 2007 Letter was not a “demand” within the meaning of section IV.A.2.a. We disagree. Although “demand” is not a term defined in the Policy, under New York law, “a demand requires an imperative solicitation for th at which is legally owed,” as distinguished from a request carrying no legal consequences. Gil Enters., In c. v. Delvy, 79 F.3d 241, 246 (2d Cir. 1996) (citing Gershman v. Bart ed Realty Corp., 22 Misc.2d 461, 462, 198 N.Y.S.2d 664, 665 (Sup. Ct. 1960) (defining “demand” as “[a] requisition or request to do a particular thing specified under a claim of right on the part of the person requesting” (emphasis added) (interna l quotation marks omitted)). The November 2007 Letter satisfies these requirements. To determine “t he extent of [Multive nd’s] compliance” with the Maryland Business Opportunity Sales Act (the “Act”), Md. Code Ann., Bus. Reg. §§ 14-101 to -129, the Division insisted not only that Multivend prov ide certain documents and information, but also “that [MultiV end] acknowledge in writing that it will immediately cease all offers and sales of th e Vendstar business opportunity to Maryland residents.” J.A. 250–51. The Letter explai ned that the Division made these requests pursuant to its “authority to investigate and take action against a ny person who violates” the Act, including by bringing a civil action seeking, inter alia, injunctive relief. Id. at 249. Although the Letter did not state that Mu ltivend was, in fact, in violation of the Act, it did state that Multivend’s “[f]ailure to res pond may result in more formal legal action.” Id. at 251. This was suffici ent to make the November 2007 Letter a “demand” because it5 set forth the Division’s request under a clai m of right, including its entitlement to the documents identified therein, an d put Multivend on notice of th e legal consequences of any failure to comply. See Gil Enters ., Inc. v. Delvy, 79 F.3d at 246. No different conclusion is warranted by We aver’s arguments to the contrary. That the Division asked Multivend to “[p]lease confirm whethe r the company agrees to voluntarily cease” its offers a nd sales did not render “precat ory,” Appellant Br. 12, its request “that [Multivend] acknowledge in writi ng” that it would do so. J.A. 251; see Gershman v. Barted Realty Corp., 22 Misc.2d at 462, 198 N.Y.S.2d at 665 (“The demand may be couched in the customarily-used polite lang uage of the day. All that is required is the assertion of the right . . . and a request for compliance th erewith.” (internal quotation marks omitted)); see also MBIA Inc. v. Fed. Ins. Co., 652 F. 3d at 161 (explaining that where SEC believed target would comply on volu ntary basis, insurer could not require that insured “suffer extra public rela tions damage to avail itself of coverage a reasonable person would think was triggered by the initial investig ation”). Nor does Weaver’s assertion that the Letter failed to provide notic e of any “drastic legal repe rcussions” withstand scrutiny, Appellant Br. 27, because the Letter underscored the Division’s authority to seek specific forms of monetary and nonmonetary relief, and threatened “more formal legal action” in the event that Multivend did not “prompt[ly] and complete[ly]” re spond, J.A. 251. In any event, the Division was not ob ligated to advise Weaver of the “specific consequences” of failing to provide the information it sought, so long as the Letter made clear that it was not6 just a “mere request for information.” Gil Ente rs., Inc. v. Delvy, 79 F.3d at 246. Insofar as Weaver contends this cons truction inappropriately “cobbl e[s] together two unrelated portions of the Maryland AG’s letter,” Appella nt Br. 26, the argument fails because we must construe the document as a whole. See MBIA Inc. v. Fed. Ins. Co., 652 F.3d at 160–
61. Because the November 2007 Letter constitu ted a “demand” as a matter of New York law, section IV.A.2.a of the Policy una mbiguously excluded c overage for Weaver’s defense of the DOJ action on th e grounds that it invo lves the same facts and circumstances as the Letter, which predated section IV’s Pe nding and Prior Claims Date. Accordingly, the district court correctly awarded summary judgment to Axis on this basis. 4

4 Weaver further insists that Ax is owed a duty to defend pendi ng resolution of this dispute, even if coverage was properly denied. Se e Appellant Br. 50 (citing CGS Indus., Inc. v. Charter Oak Fire Ins. Co., 720 F.3d at 80). However, by failing to raise this claim in the district court—notwithstanding his opportu nities to do so—Weaver has forfeited it on appeal. See In re Nortel Ne tworks Corp. Sec. Litig., 539 F. 3d 129, 133 (2d Cir. 2008). Weaver’s argument that he preserved this claim by seeking declar atory relief in his complaint fails because he did not assert in response to Axis ’s motion for summary judgment that the term “demand” suffered from any factual, legal, or contractual uncertainty sufficient to im pose upon Axis a duty to defend him until the dispute was definitively resolved. Cf. Hu go Boss Fashions, Inc. v. Fe d. Ins. Co., 252 F.3d 608, 620 (2d Cir. 2001). Indeed, Weaver does not here as sert that the district court erred in failing to address such a claim.7 * * * * We have considered Weaver’s remaining arguments and conclude that they are without merit. Accordingl y, the judgment of the di strict court is AFFIRMED.
FOR THE COURT: CATHERINE O’HAGAN WOLF E, Clerk of Court