FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOV 3, 2008

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-10135

________________________

D. C. Docket No. 05-02047-CV-2-VEH

HR ACQUISITION I CORPORATION,

f.k.a. Capstone Capital Corporation,

Plaintiff-Appellee,

versus

TWIN CITY FIRE INSURANCE COMPANY,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Alabama

_________________________

(November 3, 2008)

Before DUBINA, HULL and FAY, Circuit Judges.

FAY, Circuit Judge:
This appeal involves a dispute over insurance coverage. Plaintiff-Appellee

Capstone Capital Corporation (“Capstone”), a real estate investment trust, sued its

1

insurance carrier Defendant-Appellant Twin City Fire Insurance Company (“Twin

City”) for coverage of litigation expenses related to defending a particular lawsuit.

In moving for summary judgment, Twin City argued to the district court that

Capstone’s claim did not come within its insurance policy with Twin City (the

“Policy”), and also invoked three of the Policy’s coverage exclusions. The district

court denied Twin City’s motion in full. For the reasons set forth below, we

reverse the portion of the district court’s order denying summary judgment on the

basis of one of the exclusions: the “prior litigation” exclusion. Because we

conclude that the “prior litigation” exclusion defeats the coverage claimed by

Capstone, we do not consider the other defenses advanced by Twin City and

rejected by the district court.

I. FACTS

A. Background

The Tucker Action

Two particular lawsuits are relevant to this appeal. The first is a shareholder

derivative suit filed on August 28, 2002 by Wade Tucker, a shareholder of

 Plaintiff-Appellee HR Acquisition I Corporation is the corporate successor to 1

Capstone. Because the insurance policy at issue, the prior lawsuits, and the parties themselves

refer to the company as “Capstone,” we will do so here.

2
HealthSouth Corporation (“HealthSouth”). The Tucker action generally alleged a

2

large-scale accounting fraud scheme by HealthSouth’s directors and officers, as

well as a number of other entities that aided in or conspired to commit such fraud

to the detriment of HealthSouth and its shareholders. Capstone was one such

entity. The Tucker complaint alleged that Capstone was owned or controlled by

three HealthSouth directors and officers: Richard Scrushy, Michael Martin, and

Larry Striplin. The Tucker complaint referred to a scheme in which HealthSouth

sold property to Capstone and then leased it back at artificially inflated prices.

Count V sought to recover against Capstone (among other defendants) for

“Interested Transactions and Waste of [HealthSouth’s] Corporate Assets.” Count

VI sought to recover against Capstone, Richard Scrushy, and Michael Martin

(among other defendants) for “Misappropriation of [HealthSouth’s] Corporate

Assets.”

The Madrid Action

The second lawsuit relevant to this appeal is a false claims qui tam action

filed on December 15, 1997 by Greg Madrid, who was employed by HealthSouth

 The full caption for this case, filed in the Circuit Court of Jefferson County, Alabama,

2

is Wade Tucker, derivatively, for the benefit of and on behalf of Nominal Defendant

HealthSouth Corporation v. Richard M. Scrushy, et al., Case CV-02-5212. We shall refer to this

action as “Tucker.”

3
as a reimbursement specialist. The lawsuit named HealthSouth, Richard Scrushy,

3

Gerald Scrushy (Richard Scrushy’s brother), and Capstone as defendants. The

Madrid complaint alleged that Richard Scrushy was a co-founder and director of

Capstone, and owned a “substantial interest” in that company. Count VI of the

Madrid complaint was a count against HealthSouth and Richard Scrushy for

submitting false claims to the United States government’s Medicare program.

Specifically, that count alleged that HealthSouth, under the direction of Richard

Scrushy, engaged in a series of transactions with Capstone in which HealthSouth

sold depreciable buildings to Capstone, leased them back from Capstone at

artificially high prices, and sought reimbursement from the federal government

through Medicare. Count VIII was a claim against HealthSouth, Richard Scrushy,

and Capstone for conspiring to defraud the United States government in connection

with the misconduct alleged in Count VI.

Neither Capstone nor Richard Scrushy were ever served with copies of the

Madrid complaint, nor made appearances in that case. HealthSouth eventually

settled the claims by paying the United States government $7.9 million plus

interest, and the case was dismissed with prejudice.

4

 The full caption for this case, filed in the District Court for the Northern District of 3

Alabama, is United States of America ex rel. Greg Madrid v. HealthSouth Corp., et al., Case No.

97-CV-03206. We shall refer to this action as “Madrid.”

 The Tucker complaint referenced the Madrid lawsuit in Paragraphs 60-61. 4

Specifically, the Tucker complaint stated that Richard Scrushy’s wrongful actions “involving

4
Capstone’s Policy and Twin City’s Denial of Coverage for the Tucker Action

Capstone purchased a “claims made” insurance policy from Twin City with

a policy period of July 15, 2000 to October 15, 2004. The Policy contains four

insuring agreements: Insuring Agreements A, B, C, and D. The only agreement at

issue here is Insuring Agreement D, entitled Company Non-Securities Claim

Liability. Insuring Agreement D provides in relevant part that Twin City:

will pay on behalf of [Capstone] Loss not otherwise covered . . .

which [Capstone] shall become legally obligated to pay as a result of a

Non-Securities Claim first made during the Policy Period . . . against

[Capstone] for a Wrongful Act which takes place during or prior to

the Policy Period . . . .

Policy, ¶ I(D).

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The Policy contains several exclusions from coverage. The exclusion

relevant to this opinion is the “prior litigation” exclusion, which states that Twin

overpayment through . . . Capstone” damaged HealthSouth and constituted breach of fiduciary

duty, unjust enrichment, and waste of corporate assets. This is because Richard Scrushy’s

wrongdoing with Capstone enriched him personally, yet caused HealthSouth to pay $7.9 million

plus interest to the United States government to settle the resulting lawsuit (i.e., the Madrid

action).

 A “Claim” is defined in pertinent part as “a civil or criminal proceeding commenced by 5

the service of a complaint or similar pleading . . . against . . . [Capstone], for a Wrongful Act.”

Policy, ¶ IV(A). “Loss” is defined in pertinent part as “sums which . . . [Capstone] [is] legally

liable to pay solely as a result of any Claim insured by this Policy.” Id. at ¶ IV(J). A “NonSecurities Claim” is defined in pertinent part as “any Claim other than a Securities Claim jointly

first made against both [Capstone] and the Directors and Officers.” A “Wrongful Act” is defined

in pertinent part as “any actual or alleged error, misstatement, misleading statement, act,

omission, neglect or breach of duty, committed or attempted by the Directors and Officers, in

their capacity as such . . . or, with respect to Insuring Agreements B(2), C and D, by

[Capstone].” Id. at ¶ IV(Q).

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City “shall not be liable to make any payment for Loss in connection with any

Claim” made against Capstone that was

based upon, arising from, or in any way related to any demand, suit,

or other proceeding against any Insured which was pending on or

existed prior to the applicable Prior Litigation Date specified by

endorsement to this Policy, or the same or substantially the same facts,

circumstances or allegations which are the subject of or the basis for

such demand, suit, or other proceeding.

Id. at ¶ V(H). The “Prior Litigation Date” to which the exclusion refers is

December 17, 1997. Id. at 17.

The Policy features other exclusions, including one related to acts by

Capstone’s directors or officers while they served a different entity (the “outside

service” exclusion), and one related to criminal or deliberately fraudulent acts by

Capstone’s directors or officers (the “fraud” exclusion). Id. at ¶¶ V(F), (J).

Shortly after being served with a copy of the Tucker complaint, Capstone

made a claim for loss incurred in defending against that lawsuit. Twin City denied

coverage for any loss related to Tucker.

B. Procedural History

Capstone filed suit in Alabama state court on September 16, 2005 based on

Twin City’s denial of coverage for loss related to Tucker. Specifically, Capstone

sued for breach of contract (that is, the Policy) and for a declaratory judgment that

the Policy covered loss related to Tucker. Twin City removed the suit to the

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United States District Court for the Northern District of Alabama on September 28,

2005 based on diversity.

On January 26, 2007 Twin City moved for summary judgment, making

several different arguments: first, that no “Wrongful Acts” had been alleged in

Tucker sufficient to trigger coverage under the Policy; second, that the Policy’s

“outside service” exclusion applied to Capstone’s Tucker claim; third, that the

“prior litigation” exclusion applied to Capstone’s Tucker claim; fourth, that the

“fraud” exclusion applied Capstone’s Tucker claim; and fifth, that because

Capstone had not actually incurred any loss as a result of defending Tucker,

Capstone was not entitled to coverage under the Policy. The district court rejected

all of Twin City’s arguments and denied its motion for summary judgment in full.

Twin City moved for reconsideration of the district court’s order on the “outside

service” exclusion. The court granted the motion for reconsideration, but affirmed

its denial of Twin City’s motion for summary judgment on that ground.

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On appeal, Twin City argues that the district court erred in rejecting all of its

arguments. However, because we find that the Policy’s “prior litigation” exclusion

 After the district court denied Twin City’s motion for summary judgment, Capstone 6

filed its own motion for partial summary judgment. That motion sought a determination that

under the Policy, Twin City was obligated to advance claims expenses for defending Tucker. 

The district court granted Capstone’s motion, and certified the issue for appeal under 28 U.S.C. §

1292. Twin City petitioned for permission to appeal the district court’s grant of Capstone’s

motion, and we denied that petition. 

7
applies and that Twin City’s motion for summary judgment should have been

granted on that basis, we need not review the district court’s other grounds for

denying Twin City’s motion.

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II. STANDARD OF REVIEW

“We review the trial court’s grant or denial of a motion for summary

judgment de novo, viewing the record and drawing all reasonable inferences in the

light most favorable to the non-moving party.” Patton v. Triad Guar. Ins. Corp.,

277 F.3d 1294, 1296 (11th Cir. 2002) (citation omitted).

Under Federal Rule of Civil Procedure 56(c), summary judgment is proper

“if the pleadings, the discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and that the movant is

 We will briefly address Twin City’s first argument: that Capstone’s claim for loss 7

related to Tucker does not come within the Policy at all. As stated above, Insuring Agreement

D provides in pertinent part that Twin City will cover “Loss not otherwise covered . . . which

[Capstone] shall become legally obligated to pay as a result of a Non-Securities Claim first made

during the Policy Period . . . against [Capstone] for a Wrongful Act.” 

Twin City argues that Tucker does not come within Insuring Agreement D because it was

not a “Non-Securities Claim” for “Wrongful Acts” as those terms are defined in the Policy (see

Footnote 5) – that is, Tucker was not a claim jointly made against both Capstone and its directors

and officers “in their capacity as such.” Rather, Twin City argues, Tucker sued Capstone’s

directors and officers for actions taken in their capacity as directors and officers of HealthSouth. 

The district court denied Twin City’s summary judgment motion on this argument, finding that

Tucker did implicate Richard Scrushy, Michael Martin, and Larry Striplin “in their capacities” as

Capstone directors and officers (or that was at least a reasonable interpretation) because the

complaint “expressly reference[d] their alleged collective connection to the very creation and/or

running of Capstone.” We agree with the district court’s analysis and conclusion on this point –

Tucker alleges that Scrushy and others used their positions in both Capstone and HealthSouth to

set up a fraudulent sale and leaseback scheme for their own benefit. Thus, we adopt the district

court’s order insofar as it denied Twin City’s motion on that basis. 

8
entitled to judgment as a matter of law.” See Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986). “[A] party seeking summary judgment always bears the initial

responsibility of informing the . . . court of the basis for its motion, and identifying

those portions of the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, which it believes

demonstrate the absence of a genuine issue of material fact.” Id. at 323 (internal

quotations omitted). If the movant succeeds in demonstrating the absence of a

material issue of fact, the burden shifts to the non-movant to show the existence of

a genuine issue of fact. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th

Cir. 1993).

Further, “[i]n a diversity case, a federal court applies the substantive law of

the forum state, unless federal constitutional or statutory law is contrary.” Ins. Co.

of N. Am. v. Lexow, 937 F.2d 569, 571 (11th Cir. 1991) (citation omitted). In this

case the forum state is Alabama. The parties agree that under Alabama choice of

law rules, Alabama law governs the interpretation of the Policy. “In Alabama, the

interpretation of a contract, including an insurance contract, is a question of law

reviewed de novo.” Twin City Fire Ins. Co., Inc. v. Ohio Cas. Ins. Co., Inc., 480

F.3d 1254, 1258 (11th Cir. 2007) (citation omitted).

III. ANALYSIS

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Twin City argues that the district court erred in denying its motion for

summary judgment based on the Policy’s “prior litigation” exclusion. In

determining whether Twin City was entitled to summary judgment based on that

exclusion, we must examine two issues. First, we must determine whether the

Tucker lawsuit was “based upon, arising from, or in any way related to” another

lawsuit – here, Twin City contends that Madrid was such a related lawsuit.

Second, if we determine that Madrid was related to Tucker within the meaning of

the “prior litigation” exclusion, we must also determine whether Madrid was

“pending” or if it “existed” “against” Capstone before the Prior Litigation Date.

A. “Related” Litigation

Twin City argues that the Madrid action was “related” to the Tucker action

within the meaning of the “prior litigation” exclusion. We agree.

Under Alabama law, “[g]eneral rules of contract law govern an insurance

contract. The court must enforce the insurance policy as written if the terms are

unambiguous.” Lambert v. Coregis Ins. Co., Inc., 950 So. 2d 1156, 1161 (Ala.

2006) (quoting Safeway Ins. Co. of Ala. v. Herrera, 912 So. 2d 1140, 1143 (Ala.

2005)) (internal citations and quotations omitted). Further,

the mere fact that a word or a phrase used in a provision in an

insurance policy is not defined in the policy does not mean that the

word or phrase is inherently ambiguous. If a word or phrase is not

10
defined in the policy, then the court should construe the word or

phrase according to the meaning a person of ordinary intelligence

would reasonably give it. The court should not define words it is

construing based on technical or legal terms.

Id. at 1161-62 (quoting Safeway, 912 So. 2d at 1143) (internal quotations and

citations omitted).

“It is well established . . . that when doubt exists as to whether coverage is

provided under an insurance policy, the language used by the insurer must be

construed for the benefit of the insured.” St. Paul Mercury Ins. Co. v. ChiltonShelby Mental Health Ctr., 595 So. 2d 1375, 1377 (Ala. 1992). Further, “when

ambiguity exists in the language of an exclusion, the exclusion will be construed so

as to limit the exclusion to the narrowest application reasonable under the

wording.” Id. (citation omitted). “However, it is equally well settled that in the

absence of statutory provisions to the contrary, insurers have the right to limit their

liability by writing policies with narrow coverage.” Id. Indeed, “[i]f there is no

ambiguity, courts must enforce insurance contracts as written and cannot defeat

express provisions in a policy, including exclusions from coverage, by making a

new contract for the parties.” Id. (citation omitted).

Further, “[i]nsurance contracts, like other contracts, are construed to give

effect to the intention of the parties and, to determine this intent, the court must

11
examine more than an isolated sentence or term; it must read each phrase in the

context of all other provisions.” Royal Ins. Co. of Am. v. Thomas, 879 So. 2d

1144, 1153-54 (Ala. 2003) (quoting Hall v. Am. Indem. Group, 648 So. 2d 556,

559 (Ala. 1994)) (citation omitted).

The Policy at issue in this case is a “claims made” policy. Under a “claims

made” policy, coverage only applies to those claims first made during the policy

period. As one court has put it, such policies

are intended by insurers to avoid the hazard of an indefinite future:

Once the policy period has expired, the book can be closed on

everything except then-pending claims. On the other hand, an insurer

incurs a risk with this kind of policy: liability for a claim that has been

brewing and was ripe to erupt before the policy period, but is asserted

only after the policy period begins. For this reason, claims made

policies generally include a number of endorsements and exclusions

intended to limit this front end risk by cutting off liability for claims

ready, but not yet made, at the start of the policy period.

Ameriwood Indus. Int’l Corp. v. Am. Cas. Co., 840 F. Supp. 1143, 1148-49 (W.D.

Mich. 1993) (internal quotations and citations omitted).

Here, the “prior litigation” exclusion in Capstone’s Policy states that Twin

City shall not be liable for loss in connection with a Claim that is “based upon,

arising from, or in any way related to any demand, suit, or other proceeding”

against Capstone which was “pending on or existed prior to the applicable Prior

Litigation Date . . . , or the same or substantially the same facts, circumstances or

allegations which are the subject of or the basis for such demand, suit, or other

12
proceeding.” Twin City contends that Madrid was “related” to Tucker within the

meaning of the Policy’s “prior litigation” exclusion. We agree.

As explained above, Tucker was a lawsuit on behalf of HealthSouth

shareholders against HealthSouth officers and directors, as well as entities alleged

to have conspired to defraud HealthSouth shareholders. The Tucker complaint

alleged that Capstone was owned or controlled by three HealthSouth directors and

officers: Richard Scrushy, Michael Martin, and Larry Striplin. Paragraphs 102-103

of the Tucker complaint described a scheme in which, at the direction of Richard

Scrushy and other individual defendants, HealthSouth sold property to Capstone

and then entered into long-term lease agreements with Capstone at artificially

inflated prices. As alleged, this scheme was set up to enrich Richard Scrushy,

Michael Martin, and others. Count V sought to recover against Capstone (among

other defendants) for “Interested Transactions and Waste of [HealthSouth’s]

Corporate Assets” because HealthSouth’s alleged transactions with Capstone were

“less beneficial to HealthSouth than such transactions would have been had the

transactions been conducted with unrelated and independent persons.” Tucker

Compl. ¶ 174; see also id. at ¶ 179 (“Sale and lease back of depreciable buildings

at above-market rates amount to a waste of corporate assets, as well as unfair

interested transactions.”). Count VI sought to recover against Capstone, Richard

13
Scrushy, Gerald Scrushy, Michael Martin, and several other defendants for

“Misappropriation of [HealthSouth’s] Corporate Assets,” alleging that Capstone,

Richard Scrushy, Gerald Scrushy, Michael Martin, and others “misappropriated

assets of HealthSouth” for their “personal benefit.” Id. at ¶ 185.

With respect to Madrid, the complaint in that case alleged that Richard

Scrushy was co-founder and director of Capstone, and owned a significant interest

in that company. Madrid Compl. ¶ 59. The Madrid complaint also alleged that

Richard Scrushy was founder and organizer of HealthSouth and served as its Chief

Executive Officer and Chairman of its Board of Directors. Id. at ¶ 7. Count VI of

the Madrid complaint alleged that “HealthSouth has sold its properties to Capstone

at artificially high prices (i.e., above market value), and then entered into lease

agreements with Capstone under which HealthSouth must pay rental prices that are

also artificially high (i.e., above market value).” Id. at ¶ 62. Count VIII of the

Madrid complaint sued Capstone and Richard Scrushy for conspiring to defraud

the United States government through such a sale and leaseback scheme. Id.

It is clear from the foregoing passages that Madrid and Tucker allege the

same type of wrongdoing by Capstone: purchasing real estate from HealthSouth,

and then leasing it back to HealthSouth at artificially high prices. According to the

very broad language of the “prior litigation” exclusion, a prior lawsuit need only be

14
based upon, arising from, or in any way related to the Tucker lawsuit for the

exclusion to apply. We find that Madrid clearly meets that low standard – it is

certainly “in any way related” to Tucker.

Capstone argues that the exclusion does not apply because neither the

Madrid nor Tucker complaints identified any specific transactions between

HealthSouth and Capstone. However, given the broad language in the “prior

litigation” exclusion, it is not necessary for the same transactions to have been at

issue in Madrid and Tucker, only that the two lawsuits be “in any way related.”

This is certainly the case – in both actions Capstone was named as a defendant and

sued for the same type of wrongdoing. It is true that in Madrid this wrongdoing

was alleged to have harmed the United States government, while in Tucker it was

alleged to have harmed HealthSouth’s shareholders. However, the fact that Madrid

and Tucker involved different plaintiffs, and that the claims against Capstone were

based upon different theories of recovery, does not change the result. The “prior

litigation” exclusion does not require that the parties, claims, or theories of

recovery in each suit be identical – only that the suits be “in any way related to”

each other.

8

 We find two particular cases useful in this analysis. In both, the insurance policies at 8

issue contained language similar to the “prior litigation” exclusion here – they excluded

coverage where one lawsuit “in any way involv[ed]” a prior lawsuit. Monroe County, Iowa v.

Int’l Ins. Co., 609 N.W.2d 522 (Iowa 2000); Zunenshine v. Executive Risk Indem., Inc., No. 98-

9251, 1999 WL 464988 (2d Cir. June 29, 1999). Both courts held that one lawsuit need not

15
B. “Pending” Litigation

Although we find that Madrid was “in any way related” to Tucker within the

meaning of the “prior litigation” exclusion, this does not end our inquiry as to

whether the exclusion applies to Capstone’s claim for coverage. We must still

determine whether Madrid, which was filed on December 15, 1997, was “pending”

or “existed” “against” Capstone before the Prior Litigation Date of December 17,

1997.

In arguing against the applicability of the “prior litigation” exclusion,

Capstone emphasizes that it was never served with the Madrid complaint or made

an appearance in that case. Thus, Capstone contends, the Madrid action could not

have “existed” or been “pending” “against” it within the meaning of the exclusion.

The district court agreed with Capstone on this point, holding that “Twin City . . .

failed to establish[] as a matter of Alabama law that an unserved but named

defendant, such as Scrushy or Capstone, has an action pending ‘against’ him or it

with [sic] the meaning of the ‘prior litigation’ exclusion.” We do not agree.

The “prior litigation” exclusion exempts from coverage a Claim related to

“any demand, suit, or other proceeding against any Insured which was pending on

or existed prior to the applicable Prior Litigation Date.” Policy at ¶ V(H). The

feature the same wrongful acts or legal theories to be “in any way involving” the other. Monroe

County, 609 N.W.2d at 525-26; Zunenshine, 1999 WL 464988, at *1-2. We recognize that these

cases are not controlling, but we find their reasoning sound.

16
terms “pending,” “exist,” and “against” are not defined within the Policy. As

explained above, Lambert instructs that “[i]f a word or phrase is not defined in [an

insurance] policy, then the court should construe the word or phrase according to

the meaning a person of ordinary intelligence would reasonably give it.” 950 So.

2d at 1162 (internal citations and quotations omitted). We believe that a person of

ordinary intelligence would reasonably consider a lawsuit “against” a person or

entity to be “pending” or to “exist” when it names that person or entity as a

defendant and is properly filed with a court, and thus docketed and given a case

number.

We also look to Alabama state law for guidance on when a case is “pending”

or “exists” “against” a person or entity. According to Rule 3(a) of the Alabama

Rules of Civil Procedure: “A civil action is commenced by filing a complaint with

the court.” Notably, an Alabama appellate court recently referred to the

“pendency” of a case before service had been effected on any defendants. Wagner

v. White, 985 So. 2d 458, 461-62 (Ala. Civ. App. 2007). Another Alabama

appellate court referred to a suit as “pending against” an individual even though he

was not served with a copy of the complaint. Walnut Equip. Leasing Co., Inc. v.

Long, 550 So. 2d 998, 998 (Ala. Civ. App. 1989) (“[The appellee] was never

17
served with a copy of the complaint filed by [the appellant], nor was he in any way

notified that a suit was pending against him.”).

Further, in Penney v. Speake the Alabama Supreme Court determined that a

suit “against” two individuals was “pending” because the complaint had been filed,

regardless of the fact that the two individuals had not been served with copies of

the summons and complaint. 54 So. 2d 709, 712 (Ala. 1951); see also Williams v.

9

Colle, 171 So. 2d 105, 106 (Ala. 1965) (“Under our statutes and decisions, we

must hold that a suit which had been properly filed is a pending suit . . . .”).

An Alabama district court has also stated that “[t]he test of whether a suit is

pending or not is whether or not a complaint in the suit has been filed against any

defendant or defendants (Rules 3, 4(a), Alabama Rules of Civil Procedure).”

Golatte v. Mathews, 394 F. Supp. 1203, 1207 (D.C. Ala. 1975). The Alabama

Supreme Court explicitly agreed with the Golatte court’s interpretation of Alabama

law, including the above-quoted “test” of whether a suit is pending. Sanders v.

Martin, 662 So. 2d 241, 244 (Ala. 1995). Further, in Sanders the Alabama

 In coming to this determination the Penney court looked to the following statutory 9

language then in effect: “The filing of the complaint, bill of complaint, or other statement of

plaintiff’s cause of action, in the office of the clerk or register of the circuit court, or other

ministerial office of courts of like jurisdiction, shall constitute the commencement of suit.” 54

So. 2d at 712. This language is the functional equivalent of the current Alabama Rule of Civil

Procedure 3(a), which states that “[a] civil action is commenced by filing a complaint with the

court.” 

18
Supreme Court noted that a particular rule was “applicable only where an action is

pending, i.e., where a complaint has been filed.” Id. (emphasis added).

Moreover, as explained above, a court must read each phrase in an insurance

contract “in the context of all other provisions” to determine the parties’ intent.

Royal Ins. Co., 879 So. 2d at 1154 (internal quotations and citations omitted). We

note that according to the Policy here, a lawsuit cannot constitute a “Claim” unless

it is “[a] civil or criminal proceeding commenced by the service of a complaint or

similar pleading.” Policy, ¶ IV(A). Clearly, the Policy drafters knew how to

specify when service of a complaint was required – and such an express service

requirement is noticeably absent from the “prior litigation” exclusion.

Capstone argues in its appellate brief that Madrid was not a “pending” or

“existing” action “against” Capstone before December 17, 1997 because it was

never served with a copy of the complaint in that case, and so never became a

“party” to it. In support of this argument, Capstone cites to several cases which

state that those who are not served with a copy of the complaint do not become

“parties” to the litigation. See, e.g., Saucier v. Katz, 533 U.S. 194, 211 n.1 (2001)

(“Though named as a defendant, Parker was never served with the complaint, and

therefore did not become a party to this litigation.”) (Ginsberg, J., concurring);

Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999)

19
(“[O]ne becomes a party officially, and is required to take action in that capacity,

only upon service of a summons or other authority-asserting measure stating the

time within which the party served must appear and defend.”) (citations omitted);

Loman Dev. Co., Inc. v. Daytona Hotel and Motel Suppliers, Inc., 817 F.2d 1533,

1536 (11th Cir. 1987) (noting that those defendants who had not yet been served

were not “parties” to the litigation) (citations omitted). However, the “prior

litigation” exclusion only requires that a related lawsuit “against” Capstone be

“pending” or that it “exist.” The exclusion does not require that Capstone be

“served” or made “party” to an action.

10

Considering the meaning that an ordinary person would give to the terms

“pending,” “exist,” and “against,” the guidance from Alabama courts, and the

Policy as a whole, we find that Madrid was “pending” and “existed” “against”

Capstone before December 17, 1997 within the meaning of the “prior litigation”

exclusion, because it had been filed on December 15, 1997 and it named Capstone

as a defendant.

 Capstone also invokes the Eleventh Circuit case Geary v. City of Snellville in arguing 10

that because the Tucker complaint was not served on Capstone, that lawsuit did not “exist” nor

was it “pending” against Capstone before the Prior Litigation Date. No. 06-12898, 2006 WL

3228398, at *1 (11th Cir. Nov. 8, 2006) (“To constitute a valid action, the complaint must be

served personally on the defendant.”) (citations omitted). However, Snellville is an unpublished

case and thus not controlling precedent. See Eleventh Circuit Rule 36-2. Moreover, in

Snellville the court applied Georgia law – in the passage reproduced above, the court quoted

directly from a Georgia state case interpreting a Georgia statute. Thus, Capstone’s invocation of

Snellville does not change our analysis.

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III. CONCLUSION

In sum, we hold that the Madrid action was both “in any way related” to the

Tucker action, and that it was “pending” and “existed” “against” Capstone before

the Policy’s Prior Litigation Date. Thus, the Policy’s “prior litigation” exclusion

applies to Capstone’s claim for loss related to Tucker. Accordingly, we reverse the

district court’s order and remand the case with instructions that the district court

enter summary judgment for Defendant-Appellant Twin City on that basis.

REVERSED and REMANDED.

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