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National Casualty Co. v. Fulton County

United States District Court, N.D. Georgia, Atlanta Division

March 28, 2018

NATIONAL CASUALTY COMPANY, Plaintiff,
v.
FULTON COUNTY, GEORGIA, Defendant.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendant Fulton County, Georgia's Motion for Summary Judgment [35] and Plaintiff National Casualty Company's Motion for Summary Judgment [36].

         I. BACKGROUND

         This is an insurance coverage dispute between Fulton County, Georgia, (“Fulton County” or the “County”) and its insurance carrier, National Casualty Company (“National”) regarding coverage for a number of employment lawsuits brought by County employees. The parties dispute whether the insurance policies at issue provide coverage of the employees' lawsuits and whether the County properly reported the cases to National in compliance with the policies' notice requirements.

         A. The Pay Parity Cases

         Fulton County was named as a defendant in seven lawsuits and one grievance brought by 316 individual plaintiffs and 22 grievants (collectively referred to as “Plaintiffs”) who are current or former County employees (the “Pay Parity Cases”). The majority of the Pay Parity Cases were brought by staff, senior, and supervising attorneys employed in the Public Defender's Office, the Solicitor's Office, the District Attorney's Office, the Child Advocate's Office, and the Superior and State Courts, who alleged that the County failed to pay them “equal pay for equal work, ” because certain County attorneys were paid more than attorneys in other County offices. Similar claims were also brought by a group of employees with the Fulton County Sheriff's Office who alleged that the County violated personnel regulations by compensating some groups of deputies differently than others. (Defendant's Statement of Material Fact [35.2] “DSOMF” ¶ 41).

         The Plaintiffs alleged they sustained damages because they were not paid the amount required during the period from July 6, 2013, through July 6, 2015, a period in which National provided insurance coverage to Fulton County. The Pay Parity Cases all allege breach of contract claims in which the Plaintiffs alleged that Fulton County breached its employment contracts by not paying salaries required by personnel regulations passed by Fulton County that set forth attorney and other employee pay rates (the “Personnel Regulations”). The Pay Parity Plaintiffs alleged that these regulations constitute a part of their employment contracts with the County. At a mediation in which the County and the Plaintiffs participated on October 1-2, 2015, the Plaintiffs stated that the Pay Parity Cases “are contract claims based on the County's pay parity Personnel Regulations, which Lord and Andrews[1] have held to be part of the written contract between the employees and the County, thereby creating an enforceable claim for damages based on salary disparities.” (Id. ¶ 43). The County does not dispute that the Personnel Regulations are part of the County's contract with the Plaintiffs.

         1. The Lord Case

         In 2006, Georgia Lord and 22 other Judicial Staff Attorneys employed by the Superior and State Courts of Fulton County filed a grievance against the County claiming they were unfairly paid less than the staff attorneys employed by the County Attorney's Office. See Fulton County v. Lord, 746 S.E.2d 188 (Ga.Ct.App. 2013) (“Lord”). When the grievance was denied in 2009, the plaintiffs in Lord commenced arbitration of the dispute. Id. at 192. The arbitrator held a hearing in June 2011, and issued a final decision on December 29, 2011, awarding the plaintiffs $4.3 million in back pay, plus prejudgment interest. Id.[2] Fulton County appealed the award. The Court of Appeals of Georgia affirmed the award on July 8, 2013. Id.[3] As of August 3, 2015, 15 Lord plaintiffs continued to assert claims for back pay that were allegedly not yet resolved by payments pursuant to the arbitration order. (Plaintiff's Statement of Material Facts [36.1] (“PSOMF”) ¶ 8).

         2. The Andrews Case

         Andrews v. Fulton County (“Andrews”) involved employees assigned to the Office of the Fulton County Public Defender. Fulton Cty. v. Andrews, 773 S.E.2d 432 (Ga.Ct.App. 2015). It began with a grievance filed against the County in January 2012. Id. at 435. The County denied the grievance and on November 5, 2012, the plaintiffs filed their pay parity action against the County. The Andrews plaintiffs alleged that the County's Personnel Regulations were part of their employment contract and, as a result, the County was contractually required to pay public defenders the same compensation received by attorneys in the County Attorney's Office. Id. at 476-77. They moved for summary judgment for underpayment of wages since 1987.

         On September 24, 2014, the Andrews court granted the plaintiffs' motion for summary judgment finding the County was required to pay County attorneys and public defenders at the same rate. Id. at 434. The Andrews court stated: “The Personnel Regulations form an employment contract between Plaintiff and the County . . . [and] Georgia case law recognizes Fulton County's civil service regime, created by the Legislature pursuant to the [Civil Service Act of 1982], as a legally enforceable employment contract.” (PSOMF ¶ 19). On June 11, 2015, the Georgia Court of Appeals affirmed the trial court's grant of summary judgment. Andrews, 773 S.E.2d 432.

         3. Others Cases

         Other cases and grievances have been brought by lawyers claiming their employment contracts with Fulton County were breached because they were not paid at the rate required by the Personnel Regulations:

• On September 19, 2012, 34 solicitor's office attorneys sued the County in Manchel v. Fulton County (“Manchel”), claiming breach of contract for not paying them the rate required the Personnel Regulations. ([1.3]). Twelve plaintiffs were added on July 14, 2014. (PSOMF ¶ 12).
• On October 16, 2012, a group of Judicial Staff Attorneys assigned to the Fulton County State Court sued the County in DeFoor v. Fulton County (“DeFoor”), claiming breach of contract by not paying them the rate required by the Personnel Regulations. ([1.4]).
• On November 16, 2012, 15 Fulton County Office of the Child Attorney lawyers sued the County in Bigelow v. Fulton County (“Bigelow”), claiming breach of contract by not paying them the rate required by the Personnel Regulations. ([1.6]).
• On October 25, 2013, 100 assistant district attorneys filed their complaint in Allen v. Fulton County (“Allen”). ([1.7]). Seven plaintiffs were added in May 2014. (PSOMF ¶ 15). These assistant district attorneys claim breach of contract by not paying them the rate required by the Personnel Regulations.
Benson v. Fulton County involved employees of the Fulton County Sheriffs Office (“Benson”). ([1.8]). Benson was filed on August 13, 2014. The plaintif¶in Benson also claimed breach of contract by not paying them the rate required by the Personnel Regulations.
• On July 28, 2015, 22 Public Defenders, led by Tosif Chouhan, asserted a pay parity breach of contract grievance against the County (“Chouhan). (PSOMF ¶ 11). They claimed the County was not paying them at th ” rate required by the Personnel Regulations.[4]

         When the trial court ruled in favor of the Andrews plaintiffs, the Plaintiffs in the above actions, and the County, agreed to stay the Pay Parity Cases until the appeal in Andrews was concluded. The appeal in Andrews was decided on June 11, 2015.

         B. National's Policies

         Two liability insurance policies issued to Fulton County by National are at issue in this action. The first is a Retained Limit Liability Insurance Policy for Public Entities, policy number PGO0000107, providing coverage for the period July 6, 2013, to July 6, 2014 (the “2013 Policy”). ([1.1]). The 2013 Policy provides “employment practices wrongful act” coverage limited to $7 million per occurrence, and an aggregate policy limit of $7 million.[5] The second policy is the 2014 renewal of the 2013 Policy, policy number PGO0000182. ([1.2]). It provides liability coverage to the County for the period July 6, 2014, to July 6, 2015 (the “Renewal Policy”), including coverage for “employment practices wrongful act[s].”[6] The “employment practices wrongful act” coverage under the Renewal Policy is limited to $10 million per occurrence, with an aggregate policy limit of $10 million. (Id. at 6).[7]

         The relevant coverage terms are essentially the same for both policies. The “employment practices liability” coverage in the Policies is at issue in this action. The policy provides:

         3. EMPLOYMENT PRACTICES LIABILITY

We will pay on your behalf “loss” that you become legally obligated to pay on account of any “employment practices wrongful act” you committed during the “policy period.”

([1.1] at 8). “Loss” is defined for “employment practices wrongful act” coverage purposes as:

the amount [that] . . . (ii) is against an “insured” for any . . . “employment practices wrongful act” . . . including but not limited to damages (including punitive or exemplary damages, if and to the extent that such punitive or exemplary damages are insurable under applicable law), judgments, settlements, pre-judgment and post-judgment interest. “Loss” shall include “defense costs.”

([1.1] at 13; [1.2] at 13).

         The Policies define “employment practices wrongful act” as:

any employment-related act, omission, policy, practice or representation of the “insured” directed at or against any natural person, occurring in whole or in part at any time, including any:
2. Breach of any express or implied covenant;
9. Failure or refusal to advance, compensate, employ or promote; [or]
12. Any other employment-related act, omission, policy, practice, representation or relationship in connection with any “insured” at any time.

([1.1] at 12; [1.2] at 12).

         The Policies state that National shall not be liable for or pay the loss for any:

A. Obligation in which any insured may be held liable under any applicable workers' compensation law, unemployment compensation law, disability benefits law, or any similar law;
H. Liability arising out of [the County's] “wrongful act” for gain, profit, or advantage to which you are not legally entitled;
S. Liability arising out of, based upon or attributable to any actual or alleged violation of the Employee Retirement Income Security Act of 1974, the Fair Labor Standards Act, the National Labor Relations Act, the Worker Adjustment and Retraining Notification Act, the Consolidated Omnibus Budget Reconciliation Act, the Occupational Safety and Health Act, any rules or regulations of the foregoing promulgated thereunder, and any amendments thereto, or any similar foreign, federal, state or statutory law or common law; provided, that this Exclusion S. shall not apply to any claim for retaliation.

([1.1] at 15-16, 18-19; [1.2] at 15-16, 18-19).

         The Policies contain three relevant notice requirements:

1. [The County] must notify [National] as soon as practicable of a[n] . . . “employment practices wrongful act” . . . which may result in a “claim” or suit that may exceed fifty percent (50%) of your “retained limit.” To the extent possible, any such notice should include the nature and location of any injury or damage arising out of the . . . “employment practices wrongful act.”
2. If a “claim” is made against any “insured, ” [the County] must:
a. Immediately record the specifics of the “claim, ” including the summons, complaint, and any other legal papers if a civil proceeding has been commenced, and the date [the County] received such specifics; and
b. Notify [National] as soon as practicable.
5. Special Serious Claims Reporting Requirements
[The County] must provide [National] with written notice as soon as practicable of all . . . “employment practices wrongful acts” or “claims” of which [the County] become[s] aware which involve:
a. In [the County's] judgment or the judgment of [the County's] defense counsel, [the County] believe[s] [its] exposure exceeds or may exceed fifty percent (50%) of the “retained limit”; [or]
b. Any demand or demands that equal or exceed fifty percent (50%) of the “retained limit.”

([1.1] at 20; [1.2] at 20).

         C. Notice to National

         Two County offices were responsible for handling the County's defense to the lawsuits: The County Attorney's Office and the Risk Management Department (“Risk Management”). Risk Management was responsible for reporting the Pay Parity Cases to the County's insurers, including National. (PSOMF ¶ 27). The County Attorney's Office defended the County in the litigation. The County communicated with its insurers through the Willis Group, which acted as the broker for the County in connection with the policy applications and was responsible for reporting information about the claims to the County's insurers.

         In 2012, Denise McHam-Pinto (“Pinto”) became the assistant risk manager in Risk Management, was assigned to all of the Pay Parity Cases, and was responsible for monitoring the Pay Parity Cases and entering notes about the cases in Risk Management's claim tracking system. (PSOMF ¶ 31). On July 9, 2013, three days after the 2013 Policy's effective date, Pinto prepared and sent a Risk Management Memo to the Willis Group to accompany the files for the DeFoor, Andrews, Bigelow, and Manchel lawsuits. The memo stated:

The issues most likely fall within the reporting period of our expiring carrier, C.V. Starr. . . . The Risk Manager does not view these matters as falling within the purview of our new excess carrier. Mr. Morris and I have discussed these related claims and ask that you review them and direct the ...

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