Warren BINGHAM, as Executor of the Estate of Marion Bingham, Plaintiff, Appellant, v. SUPERVALU, INC., Defendant, Appellee.
No. 15-1437.
United States Court of Appeals, First Circuit.
Nov. 13, 2015.
Oppenheimer next argues that his guilty plea itself was invalid for two reasons. First, he claims that the voluntariness of his guilty plea was vitiated by an alleged misstatement of the law made by the district court during sentencing. He further alleges that the factual basis for his guilty plea was inadequate under
Oppenheimer never raised these arguments in the district court, and thus would confront the burden, at least, of plain error review should we consider them on appeal. On this particular appeal, though, we need not consider these arguments at all because Oppenheimer quite carefully—and likely wisely—does not ask us to free the parties from the terms of the Agreement. Rather, he asks only that we remand for resentencing under that very Agreement. This argument is precisely the equivalent of asking us to affirm the Agreement while simultaneously freeing him of one of its central terms (the appeal waiver). Such an attempt to retain the benefit of the bargain struck with the government while revoking part of the consideration for that bargain must fail. See United States v. Knox, 287 F.3d 667, 671-72 (7th Cir.2002) (client‘s desire not to withdraw guilty plea should preclude attacks on voluntariness and adequacy of plea); United States v. Terwilinger, 69 F.3d 534 (4th Cir.1995)(unpublished)(per curiam) (“Because [defendant] does not wish to withdraw his рlea, any omission in questioning during the
III. Conclusion
Because we find that Oppenheimer was sentenced “in accordance with the terms and conditions set forth” in the Agreement, and there being no cause to consider whether thе Agreement should be set aside, the waiver of appeal he signed is enforceable and we lack jurisdiction to consider his appeal. It is therefore dismissed.
Before LYNCH, STAHL, and KAYATTA, circuit judges.
STAHL, Circuit Judge.
Massachusetts law prohibits those “in the business of insurance” from employing “unfair methods of competition and unfair or deceptive acts or practices,” which include “[f]ailing to effеctuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear.”
The Appellant, Warren Bingham, proceeding in his capacity as the executor of the estate of Marion Bingham (the “Estate“), brought suit alleging that the Appellee, Supervalu, Inc., acted as an insurer of one of its subsidiaries, and violated Chapter 176D by failing to promptly, fairly, and equitably effectuate the settlement of prior litigation between the subsidiary and the Estate. The district court found that Supervalu was not in the business of insurance and, on this basis, entered summary judgment in Supervalu‘s favor. The Estate appeals. Finding no error, we AFFIRM.
I. Facts and Background
A. The Prior Litigation
In January 2006, Marion Bingham was shopping at a Shaw‘s Supermarket in East Boston, Massachusetts when she was1 struck by a motorized cart. Ms. Bingham suffered а laceration to her right heel in the area of her Achilles’ tendon. At the time, Ms. Bingham was in her early-eighties, and the incident seems to have precipitated a rapid decline in her health. Ms. Bingham passed away approximately eight months later in September 2006.
Before she died, Ms. Bingham brought a negligence action against Shaw‘s in Massachusetts state court. Later, after her death, Ms. Bingham‘s nephew, Warren Bingham, was appointеd as the executor of the Estate, and was substituted as the plaintiff in the suit against Shaw‘s.
At the time of the January 2006 incident, Shaw‘s was a subsidiary of Albertson‘s, Inc. On June 2, 2006, however, Albertson‘s was acquired by Supervalu. Thus, when Ms. Bingham filed her lawsuit against Shaw‘s at the end of June 2006, Shaw‘s was a subsidiary of Supervalu and, pursuant to the manner in which Supervalu structured its relationship with its direct and indirect corporate subsidiaries, Supervalu had the authority to negotiate and settle clаims on behalf of Shaw‘s.
Including Shaw‘s, Supervalu owned some 228 distinct subsidiaries. Supervalu maintained a centralized risk management system whereby it negotiated and resolved claims made against its subsidiaries that were not otherwise covered by insurance.1 Supervalu employed claims adjusters to perform these functions, and once a self-insured claim was settled, Supervalu would issue payment from a central account on behalf of thе subsidiary against which the claim was made. Supervalu did not issue
In July 2008, in the liability action, a judge of the Massachusetts Superior Court entered judgment against Shaw‘s pursuant to
Rather than pay the judgment, Supervalu filed an appeal to the Appeals Court of Massachusetts, which summarily affirmed the Superior Court‘s damages award. See Bingham v. Shaw‘s Supermarkets, Inc., 78 Mass.App.Ct. 1107, 936 N.E.2d 452 (Mass. App.Ct.2010) (unpublished). Then, Supervalu threatened to seek further appellate review in the Massachusetts Supreme Judicial Court (the “SJC“). Rather than risk рrolonging the litigation, the Estate accepted a $475,000 settlement offer, which represented a figure slightly below the sum of the original award, plus the post-judgment interest that had accrued to that date.
The Estate contends that Supervalu‘s decisions to appeal to the Appeals Court of Massachusetts, and then to threaten a further appeal to the SJC, were undertaken contrary to the advice of counsel that, in each instance, an appeal was unlikely to succeed. The Estate argues that Supervalu‘s sole motive was to protract the litigation in the hopes of achieving a reduced settlement. Ultimately, Supervalu made payment to the Estate on December 8, 2010.
B. The Proceedings Below
All was quiet until April 2013, when the attorney who had represented the Estate in the underlying state court proceedings sent a demand letter to Shaw‘s and Supervalu asserting that Supervalu had acted as Shaw‘s insurer and had violated Chapter 176D and
The Estate brought suit against Supervalu in Massachusetts Superior Court, asserting claims for violation of Chapter 176D and Chapter 93A based on Supervalu‘s “willful” and “frivolous” delay in resolving the underlying litigation between Shaw‘s and thе Estate. Supervalu removed the action to federal court and moved for summary judgment, arguing solely that it was not in the business of insurance, and therefore was not subject to regulation under Chapter 176D.
Pursuant to a report and recommendation issued by a magistrate judge, the district court concluded that Supervalu was not in the business of insurance. Relying heavily on the SJC‘s holding in Morrison v. Toys “R” Us, Inc., 441 Mass. 451, 806 N.E.2d 388 (2004), the district court reasoned that Supervalu did not act as an insurer beсause it did not sell insurance policies for profit and was not contractually obligated to settle claims made against Shaw‘s or its other subsidiaries. Rather, the district court found that Supervalu operated a centralized risk management system to negotiate and settle claims made against any of its subsidiaries that were below the limits of its applicable
II. Standard of Review
We review orders for summary judgment de novo, assessing the record in the light most favorable to the nonmovant and resolving all reasonable inferences in that party‘s favor. Packgen v. BP Expl. & Prod., Inc., 754 F.3d 61, 66 (1st Cir.2014). The entry of summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled tо judgment as a matter of law.” Id. (quoting
III. Discussion
Although a litigant is typically free to mount a vigorous defense, and is under no obligation to make a settlement offer or to otherwise promptly resolve a dispute, see
The sole issue we must consider is whether Supervalu was in the business of insurance. The Estate proffers a series of arguments suggesting that it was. First, the Estate contends that the district court erred in concluding, pursuant to the SJC‘s decision in Morrison, that Supervalu was a “self-insurer” exempt from regulation under Chapter 176D. Second, the Estate argues that Supervalu functions in a manner similar to both a “captive insurer” and a “third-party administrator,” and thus should be deemed to be in the business of insurance. Third and finally, the Estate suggests that because one of Supervalu‘s many subsidiaries, Risk Planners, Inc. (“Risk Planners“), was an insurance agency, that Supervalu, as its parent company, was by definition engaged in the business of insurance. We consider each of these arguments in turn.
A. The Morrison Exemption for Self-Insureds
In Morrison, the SJC considered the contours of Chapter 93A and Chapter 176D in the context of a suit brought by a Toys “R” Us (“Toys“) patron who was injured while shopping at a Toys store. 806 N.E.2d at 388-89. After the Superior Court entered summary judgment for Toys on grounds that it was not in the business of insurance, the Appeals Court of Massachusetts rеversed. See Morrison v. Toys “R” Us, Inc., Mass., 59 Mass. App. Ct. 613, 797 N.E.2d 405 (2003). On further appellate review, the SJC reinstated the judgment of the Superior Court, finding that Toys was indeed not in the business of insurance. Morrison, 806 N.E.2d at 388.
We rehearse the factual background as described by the SJC, augmenting where necessary with the Appeals Court‘s somewhat more robust account.4 After she had been injured by a falling sign at a Toys location in Massachusetts, the plaintiff brought suit against Toys “R” Us, Inc., Massachusetts, a wholly-owned subsidiary of Toys, seеking damages of $250,000. Morrison I, 797 N.E.2d at 406-07. Toys had a policy whereby it handled claims of less than $1,000,000 made against itself or its subsidiaries through a central risk management department. Morrison, 806 N.E.2d at 389. Toys, through the risk management department, made the plaintiff a series of exceedingly low offers, all of which she rejected. Id. At trial, the jury returned a $1,200,000 verdict for the plaintiff based on her “significant” injuries.5 Morrison I, 797 N.E.2d at 406-07.
The plaintiff then brought a separate suit alleging that Toys had violated Section 176D by failing to рromptly, fairly, and equitably resolve her claim against the Toys subsidiary. Morrison, 806 N.E.2d at 389. In affirming the Superior Court‘s entry of summary judgment for Toys on grounds that it was not in the business of insurance, the SJC found that Toys was “self-insured,” meaning that it “assum[ed] [its] own risk, instead of transferring it to a third-party insurer by means of purchasing insurance coverage.” Id. at 390 n. 1. Focusing on the fact that Toys administered, negotiated, and settled claims made only against itself, “or one of its subsidiaries,” the SJC reasoned that Chaрter 176D “cannot legitimately be extended to a self-insurer ... which had no contractual obligation to settle the plaintiff‘s claim and is not otherwise regulated by the Commonwealth for insurance activities.” Id. at 389, 391.
We find the Estate‘s attempts to distinguish Morrison unpersuasive because these attempts overlook critical factual parallels between the two cases. In Morrison, as here, the plaintiff brought suit against a subsidiary retailer responsible for injuries occurring on the retailer‘s premises. In both cases, the subsidiary‘s parent company undertook to resolve the claim directly with the claimant, rather than rely on insurance provided by a third party. Toys, as a matter of practice, attempted to negotiate and resolve claims for less than $1,000,000 made against itself and its subsidiaries. Supervalu had a similar practice whereby it negotiated and resolved uninsured claims made against its subsidiaries through a centralizеd risk management system. Then, in both cases, the plaintiff brought a subsequent suit alleging that the parent company was in the business of insurance.
The SJC has recognized that the hallmarks of companies engaged in the business of insurance include making “profit driven business decisions about premiums, commissions, marketing, reserves and settlement policies and practices,” assuming the risk of losses suffered by third parties, Poznik v. Mass. Med. Prof‘l Ins. Ass‘n, 417 Mass. 48, 628 N.E.2d 1, 3 (1994), and settling claims pursuant to a contractual obligation to do so, Morrison, 806 N.E.2d at 391. As in Morrison, none of those factors are present here. Supervalu did
True, as the Estate notes, Supervalu spread risk among its subsidiaries and paid claims out of a central account, much like a typical insurer. But this mеrely underscores the fact that Supervalu qualifies as self-insured because, like the parent company in Morrison, Supervalu opted to bear the full risk of loss stemming from uninsured claims made against itself and its subsidiaries. See id. at 390 n. 1 (“The term ‘self-insured’ is a manner of referring to a decision not to be insured by a third party when one has the financial means ... to satisfy claims or judgments imposing liability for wrongful conduct.“). For all of these reasons, we concur with the distriсt court that Morrison is controlling and that Supervalu is properly characterized as a self-insurer exempt from regulation under Chapter 176D.
B. Captive Insurers and Third-Party Administrators
The Estate next contends that Supervalu should fall within Chapter 176D‘s purview by virtue of functioning in a manner similar to a captive insurer and a third-party administrator. We conclude that neither shoe fits.
Captive insurers are “insurance companies owned by another organization whose exclusive purpose is to insure risks of the parent organization and affiliated companies[.]” Lemos v. Electrolux N. Am., Inc., 78 Mass.App.Ct. 376, 937 N.E.2d 984, 989 (2010) (quoting
The Estate next contends that Supervalu is in the business of insurance by virtue of functioning like a third-party administrator by resolving claims on behalf of its subsidiaries. In advancing this аrgument, Supervalu principally relies on Miller v. Risk Mgmt. Found. of Harvard Med. Insts., Inc., 36 Mass.App.Ct. 411, 632 N.E.2d 841 (1994). There, the plaintiff brought a medical malpractice claim against a Harvard-affiliated hospital. Id. at 842-43. The hospital was insured by a Harvard-owned insurance company, and malpractice claims against the hospital were assessed and negotiated through a separate Harvard-owned risk management provider. Id. at 844. In a separate suit brought under Chapter 93A and Chaptеr 176D, the plaintiff alleged that the risk management provider had unlawfully stymied his attempts at settlement, despite
The Estate‘s reliance on Miller cannot withstand scrutiny. For one thing, in the underlying litigation, Supervalu was not interposed between an insurer and the Estate; indeed, as we have said, Supervalu was self-insured for the first $2,000,000 of potential liability facing any one of its subsidiaries. See Morrison, 806 N.E.2d at 391 (“The significance of the holding of the Appeals Court in the Miller case is that an insurance company cannot evade its statutory duties imposed by [Chapter 176D] by delegating its work.“).
What is more, unlike the risk management provider at issue in Miller, Supervalu did not purport to act on behalf of an insurer that had a contractual obligation to pay claims. Rather, Supervalu was under no duty to settle claims made against Shaw‘s or its other subsidiaries.6 See id. (“The Miller decision simply cannot be read to impose an affirmative claim settlement duty on the risk management department of Toys, when none could be imposed on Toys itself.“). In sum, we share the view of the district court that Supervalu did not function as a captive insurer, nor did it function as a third-party administrator, and thus it should not be regulated as such.
C. Supervalu‘s Ownership of Risk Planners
Finally, the Estate contends that Supervalu was in the business of insurance by virtue of owning Risk Planners, an insurance agency. During the pendency of the underlying state court litigation, Risk Planners was one of Supervalu‘s subsidiaries.
It is undisputed that Risk Planners was wholly uninvolved in the litigation between the Estate and Shaw‘s. Risk Planners did not insure either Shaw‘s or Supervalu, and it had no role in adjusting, negotiating, or litigating the Estate‘s claim. Nevertheless, the Estate‘s argument is not entirely without merit. Take, for example, a hypothetical parent company that has a number of subsidiaries in different sectors, including one that operates an airline. By virtue of owning a subsidiary airline, no one could reasonably dispute that the parent company is, by some measure, “in the airline business.” So too, one might fairly conclude that Supervalu was “in the business of insurance” by virtue of owning an insurance agency.
It is an entirely different proposition, however, to suggest that a parent company is independently subject to all of the laws and regulations that govern the operation of its individual subsidiaries. For example, it would defy logic to suggest that our hypothetical parent company is itself subject to аviation regulations, even though those regulations would plainly apply to its subsidiary airline.
What is more, the Estate‘s suggestion that Supervalu was in the business of in-
IV. Conclusion
We concur with the district court that Supervalu was not in the business of insurance, and thus we AFFIRM the entry of summary judgment in Supervalu‘s favor.7
Paul DeGRANDIS, Plaintiff, Appellant, v. CHILDREN‘S HOSPITAL BOSTON, Defendant, Appellee.
No. 15-1657.
United States Court of Appeals, First Circuit.
Nov. 18, 2015.