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Food Market Merchandising, Inc. v. Scottsdale Indemnity Co.

United States Court of Appeals, Eighth Circuit

May 25, 2017

Food Market Merchandising, Inc., a Minnesota corporation Plaintiff- Appellant
v.
Scottsdale Indemnity Company Defendant-Appellee

          Submitted: March 9, 2017

         Appeal from United States District Court for the District of Minnesota - Minneapolis

          Before LOKEN, MURPHY, and BENTON, Circuit Judges.

          BENTON, Circuit Judge.

         Food Market Merchandising, Inc. sued Scottsdale Indemnity Company for coverage under a Business and Management Indemnity Policy. Both parties moved for summary judgment. The district court[1] granted Scottsdale's motion. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

         I.

         The policy covers "only claims first made against the insured during the policy period . . . and reported to the insurer pursuant to the terms of the relevant coverage section." The "Notification" provision of the coverage section at issue states:

The Insureds shall, as a condition precedent to their rights to payment under this Coverage Section only, give Insurer written notice of any Claim as soon as practicable, but in no event later than sixty (60) days after the end of the Policy Period.

         Section E.1. (bolded words in original, defined in policy).

         In January 2014, former employee Robert Spinner sued Food Market, seeking unpaid commissions. In June, a court granted partial summary judgment for Spinner, awarding twice the unpaid commissions and attorney's fees. It did not reduce the award to judgment. (The parties settled two years later).

         In August 2014-during the policy period-Food Market notified Scottsdale of the Spinner lawsuit. It sought defense and indemnification under the "Employee Insuring" provision of the Employment Practices coverage:

Insurer shall pay the Loss of the Insureds which the Insureds have become legally obligated to pay by reason of an Employment Practices Claim first made against the Insureds during the Policy Period or, if elected, the Extended Period, and reported to the Insurer pursuant to Section E.1. herein, for an Employment Practices Wrongful Act taking place prior to the end of the Policy Period.

         In September, Scottsdale tentatively denied coverage.

         In June 2015, Food Market sued Scottsdale for coverage, asserting claims for breach of contract, breach of the covenant of good faith and fair dealing, and declaratory judgment. A week later, Scottsdale formally denied coverage, stating Food ...


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