11 of 26 DOCUMENTS. 3:09cv314-WS UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA, PENSACOLA DIVISION U.S. Dist.

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1 Page 1 11 of 26 DOCUMENTS MICHLES & BOOTH, P.A., MARCUS J. MICHLES II, individually, and JOHN BOOTH, individually, Plaintiffs, v. ADMIRAL INSURANCE COMPANY, Defendant. 3:09cv314-WS UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA, PENSACOLA DIVISION 2010 U.S. Dist. LEXIS February 12, 2010, Decided February 12, 2010, Filed COUNSEL: [*1] For MICHLES AND BOOTH PA, MARCUS J MICHLES, II, INDIVIDUALLY, JOHN BOOTH, INDIVIDUALLY, Plaintiffs: BENJAMIN JOSEPH ZIMMERN, DENNIS K LARRY, LEAD ATTORNEYS, CLARK PARTINGTON HART ETC, PENSACOLA, FL. For ADMIRAL INSURANCE COMPANY, Defendant: JEFFREY A GOLDWATER, LEAD ATTORNEY, DARCY LYNN IBACH, LEWIS BRISBOIS BISGAARD ETC, CHICAGO, IL. JUDGES: WILLIAM STAFFORD, SENIOR UNITED STATES DISTRICT JUDGE. OPINION BY: WILLIAM STAFFORD OPINION ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT This case involves a single issue: whether the defendant, Admiral Insurance Company ("Admiral"), improperly denied coverage under a lawyers' professional liability insurance policy issued to the plaintiffs, Michles & Booth, P.A., Marcus J. Michles II, and John Booth (collectively "Plaintiffs"). Plaintiffs maintain that the policy covers a claim made against them by former clients, Mary and Robert Spencer, after Mary Spencer's Federal Tort Claims Act ("FTCA") lawsuit for the wrongful death of their two-year-old son was dismissed as time-barred. Plaintiffs sought resolution of the coverage issue by filing a declaratory judgment action in state court. Admiral thereafter [*2] removed the case to this court, invoking the court's diversity jurisdiction. Before the court at this time are the parties' cross-motions for summary judgment. The parties have been advised that the motions would be taken under advisement as of a date certain. I. UNDISPUTED FACTS In late 2004, Mary and Robert Spencer ("the Spencers") hired Michles & Booth, P.A. ("Michles & Booth"), to pursue a claim on their behalf against the United States Postal Service ("USPS") for the wrongful death of their two-year-old child, who died on October 25, 2004, after being run over by a mail truck during a routine delivery in the child's neighborhood. On October 31, 2005, Marcus J. Michles II ("Michles") sent four administrative claims to the USPS, one each for Mary and Robert Spencer as individuals, one for Mary on behalf of the deceased child, and one for Mary on behalf

2 2010 U.S. Dist. LEXIS 16087, *2 Page 2 of a surviving child, the deceased child's sibling. A cover letter indicated that the claim forms were sent to the USPS by certified mail, return receipt requested. By certified letter mailed on May 15, 2006, Conny Beatty ("Beatty"), the USPS attorney responsible for adjudicating the four claims submitted by Michles, informed Michles [*3] that the Spencers' four claims were denied. Beatty explained: [A]n investigation of this matter failed to establish a negligent act or omission on the part of the U.S. Postal Service or its employees. The police report and statements of witnesses confirm that the Postal driver was not at fault in this tragic accident. While we regret the fatality that occurred, we cannot accept legal liability for the accident. In her denial letter, Beatty specifically advised Michles that, if dissatisfied with a final denial of an administrative claim, a claimant must either (1) file suit in federal district court against the United States no later than six (6) months from the date the USPS mails notice of the denial, or (2) seek reconsideration of the denial within the same time frame, in which case the time to file suit is tolled pending resolution of the request for reconsideration. Beatty also advised that, pursuant to USPS regulations, a request for reconsideration is deemed "filed" for limitations purposes when received by the USPS. The Spencers thus had until November 15, 2006, to either file suit or have a request for reconsideration received by the USPS. On or about January 5, 2007, after the [*4] six-month limitations period expired, John Booth ("Booth") sent a letter to Beatty, stating: I am writing to notify you that this matter [relating to the four Spencer claims] has been reassigned to me. At this time, I... request that you provide me with an update on the status of the post office's reevaluation of this claim. Upon receipt of Booth's letter, Beatty called Booth to ask about the "reevaluation" to which he referred in his letter. Beatty advised Booth that she had not received a request for reconsideration submitted on behalf of the claimants and had, in fact, heard nothing from them or their representatives since the denial letter had been issued. Booth thereafter faxed Beatty a copy of a letter requesting reconsideration, purportedly sent to Beatty by "John Booth for Marcus J. Michles II" [*5] on or about August 30, Unlike the cover letter submitted in 2005 with the four Spencer claims, the letter dated August 30, 2006, did not indicate that it was sent by certified mail, return receipt requested; and no evidence has been presented that it was so sent. Beatty has declared, under penalty of perjury, that she did not receive the letter purportedly sent in August by Booth. In April of 2007, Booth filed a wrongful death action in federal district court on behalf of Mary Spencer, as personal representative of her deceased son's estate. Robert Spencer, who was incarcerated at the time, was listed in the complaint as a potential beneficiary of any recovery in the action. The United States moved to dismiss the lawsuit as untimely, asserting that the action was not filed by, and a request for reconsideration was not received by, November 15, In opposing the United States's dispositive motion, Booth contended that the suit was timely filed because a request for reconsideration had been mailed to the USPS on August 30, 2006, well within the requisite six-month period, thereby tolling the time to file suit. The trial judge, Judge Richard Smoak, was unconvinced. In the absence [*6] of direct proof that a request for reconsideration had been received by the USPS in August, 2006, Judge Smoak considered whether Mary Spencer was entitled to a presumption of receipt under the mailbox rule. He concluded that no such presumption arose given "numerous discrepancies" in the evidence submitted by her attorney, John Booth. In particular, Judge Smoak was skeptical of the affidavit signed by Booth attesting to the August mailing of the request for reconsideration. In Judge Smoak's words: "The[] incongruities are cause for concern inasmuch as they call into question the candor of the affidavit." Describing Booth's purported actions as "implausible" and his affidavit as "dubious," the judge concluded that tolling did not apply and that Mary Spencer filed her lawsuit outside the six-month limitations period. Accordingly, on August 31, 2007, Judge Smoak dismissed the case as time-barred, ordering counsel at the same time to "immediately provide [Mary Spencer] with a copy of this order and file a notice upon compliance." A

3 2010 U.S. Dist. LEXIS 16087, *6 Page 3 judgment in favor of the USPS was entered on the docket that same day. By letters dated September 5, 2007, Booth advised both Mary and Robert Spencer that the [*7] wrongful death suit on behalf of their son had been dismissed. In Booth's words: I regret to inform you that the trial court has elected to dismiss our complaint. This means that the claim against the United States Post Office arising from the death of your son has been terminated. We can appeal the trial court's decision, however, it is unlikely that we would be successful. Booth did not state in his letters that he was enclosing a copy of Judge Smoak's order as directed. As of September 11, 2007, Booth had not yet filed his notice of compliance. Accordingly, Judge Smoak entered the following order: Not later than September 14, 2007, Plaintiff's counsel shall cause to provide Plaintiff with a copy of the Order on Defendant's Motion to Dismiss Or For Summary Judgment (Doc. 16) and file a notice upon compliance as ordered on August 31, See Doc. 16:9-10. Failure of Plaintiff's counsel to comply with this order by September 14, 2007, may result in the imposition of sanctions and/or civil contempt. Booth filed a Certificate of Compliance on September 17, 2007, certifying that copies of the dismissal order and judgment were transmitted to Mary Spencer on September 10, The record [*8] does not reflect whether Booth sent Robert Spencer a copy of Judge Smoak's order. Booth testified during his deposition that he could not recall any direct communications with Robert Spencer after Judge Smoak dismissed the wrongful death case. As to Mary Spencer, Booth could recall only two post-dismissal conversations, both occurring within days of the dismissal. In the first conversation, Booth told his client that her case had been dismissed and that a copy of the order was being sent to her. In the second conversation, Booth explored his client's interest in an appeal. At the time of the second conversation, Booth "believed" but was "not positive" that a copy of Judge Smoak's order was in his client's possession. After Booth explained that an appeal was unlikely to be successful, Mary Spencer said: "I don't want to go any further than this; I don't want to do this anymore." As explained by Michles during his deposition, most of Michles's contact with Mary and Robert Spencer occurred prior to the dismissal of the wrongful death case. While he was unable to recall specifics about most of his conversations with the Spencers, Michles characterized Mary Spencer as "unpredictable because [*9] her whereabouts were often a mystery, and her lucidity was sometimes in question." Michles also said that Mary Spencer was gracious, never complained about the work of her attorneys, knew her case was weak, and expressed a sense of relief when the case was over. When asked whether Robert Spencer ever complained about the legal services he received, Michles responded: Probably. I don't remember whether it was in one of his letters or in one of his phone calls. I mean, his relationship deteriorated with his wife, and he became a little untrusting that I had any of his interests in mind as we were progressing. I mean, he was rightfully frustrated. He wasn't in the loop all that much. So, yeah, I think it would be fair to say at times he was critical. Like Booth, Michles had no conversations with Robert Spencer after Robert learned about Judge Smoak's order dismissing the wrongful death case. On or about June 23, 2008, many months after the Spencers' wrongful death suit was dismissed as untimely, Michles, as President of Michles & Booth, applied to Admiral for the first time for a claims-made professional liability insurance policy. On the application form, Michles indicated that "[neither] [*10] the Applicant Firm [n]or any lawyer in the Applicant Firm [is] aware of any fact, circumstance, or situation that might result in any professional liability claim or suit against the Applicant Firm, or any predecessor in business, or any past or present lawyers in the Applicant Firm." Admiral thereafter issued a

4 2010 U.S. Dist. LEXIS 16087, *10 Page 4 claims-made-and-reported professional liability policy--policy No to Michles & Booth with a policy period extending from June 25, 2008 (inception date), to June 25, 2009 (expiration date). The policy's Insuring Agreement provided as follows: This Policy shall pay on behalf of the Insured all Damages and Claims Expense that the Insured shall become legally obligated to pay, arising from any Claim first made against an Insured during the Policy Period and reported to the Insurer in writing during the Policy Period or within 60 days thereafter, for any Wrongful Act, provided that prior to the inception date of the first Lawyers' Professional Liability Insurance Policy issued by the Insurer to the Named Insured, which has been continuously renewed and maintained in effect to the inception of this Policy Period, the Insured did not know, or could not reasonably foresee that [*11] such Wrongful Act might reasonably be expected to be the basis of a Claim. The policy defined "Claim" to mean "a written demand for monetary or non-monetary relief including, but not limited to, a civil, criminal, administrative or arbitration proceeding." "Wrongful Act" was defined to mean "any actual or alleged act, omission, or Personal Injury arising out of Professional Services rendered by an Insured or by any person for whose act or omission the Insured is legally responsible." On or about January 15, 2009, Niels P. Murphy ("Murphy"), of the law firm of Murphy & Anderson, P.A., sent a letter to Michles and Booth, (1) advising both Michles and Booth that Murphy & Anderson was representing Mary and Robert Spencer in connection with a complaint of professional negligence against Michles and Booth; (2) making "a formal demand for the policy limits of insurance of Michles & Booth;" and (3) warning that a legal malpractice complaint, a copy of which was attached to the letter, would be filed if Michles and/or Booth failed to respond to Murphy's demand for monetary relief within thirty days. By letter dated February 10, 2009, a Michles & Booth representative, Christopher P. Janes ("Janes'), [*12] notified Admiral for the first time of a possible claim--relating to the Spencer matter--on Admiral policy No A copy of the demand letter sent by Murphy & Anderson to Michles and Booth was attached to Janes's notice of a possible claim. Admiral soon after advised Janes that there was no coverage under the policy for the Spencers' claim. Relying largely on the policy's Insuring Agreement, which granted coverage "provided that prior to the inception date of the... Policy... the Insured did not know, or could not reasonably foresee that such Wrongful Act might reasonably be expected to be the basis of a claim," Admiral explained the basis for its denial as follows: Based upon the... chronology of events [including the dismissal of the underlying complaint as untimely], it is evident that at the June 25, 2008, inception of the first continuously renewed policy with Admiral, Michles & Booth P.A. knew or could have reasonably foreseen that there was a "wrongful act" that might reasonably be expected to be the basis of a claim. As such, there is no coverage available under the policy for this claim. Some months after receiving the denial letter from Admiral, Plaintiffs filed [*13] this declaratory judgment action in state court, seeking a declaration that the Spencers' malpractice claim is covered by the Admiral claims-made policy. After the case was removed to this court, the parties filed their cross-motions for summary judgment. Because the court finds that the claims-made policy issued to Plaintiffs by Admiral unambiguously excludes coverage under the circumstances presented here, Admiral's motion for summary judgment will be granted. II. DISCUSSION A. The sole issue raised by Plaintiffs' declaratory judgment complaint is whether the Spencers' malpractice claim against Plaintiffs is covered under Plaintiffs' professional liability insurance policy. The scope of an insurance policy's coverage is defined by the policy's language, construction of which is a question of law to be decided by the court. Jones v. Utica Mut. Ins. Co., 463 So.2d 1153, 1157 (Fla. 1985). Where, as here, a case is

5 2010 U.S. Dist. LEXIS 16087, *13 Page 5 before the federal court under its diversity jurisdiction, the substantive law of the forum state--in this case, Florida--applies. Davis v. Nat'l Med. Enter., Inc., 253 F.3d 1314, 1319 n. 6 (11th Cir. 2001). In construing an insurance policy, the court gives effect to terms that [*14] are clear and unambiguous. Taurus Holdings, Inc. v. United States Fid. & Guar. Co., 913 So. 2d 528, 532 (Fla. 2005). An insurance policy is considered ambiguous "[[i]f the relevant policy language is susceptible to more than one reasonable interpretation, one providing coverage and the [other] limiting coverage." Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000). Ambiguities in a policy are construed against the insurer and in favor of coverage. Taurus Holdings, 913 So. 2d at 532. If a policy provision is clear and unambiguous, "it should be enforced according to its terms." Hagen v. Aetna Cas. & Sur. Co., 675 So. 2d 963, 965 (Fla. 5th DCA 1996). Admiral issued its first professional liability policy to Michles & Booth on a claims-made-and-reported basis effective from June 25, 2008, to June 25, That policy's coverage clause, titled the "Insuring Agreement," limited coverage to claims first made against the insured and reported to Admiral during the policy period for any wrongful act, provided that, prior to the inception date, "the Insured did not know, or could not reasonably foresee that such Wrongful Act might reasonably be expected to be the basis of a Claim." [*15] Admiral denied coverage for the Spencer claim based on Plaintiffs' purported failure to meet the conditions precedent to coverage under the Insuring Agreement. In other words, Admiral denied coverage based on its conclusion that Plaintiffs either knew or could have reasonably foreseen that their acts might reasonably be expected to be the basis of a claim against the policy. The parties agree that the Spencer claim was first made against Plaintiffs and also reported to Admiral during the policy period. They disagree, however, about the construction to be given the second part 1 of the Insuring Agreement's proviso, the part beginning with the words "or could not reasonably foresee." Admiral contends that the court should analyze the second part of the proviso using an objective, or reasonable attorney, standard. Plaintiffs contend that the language of the proviso's second part--"the Insured... could not reasonably foresee that such Wrongful Act might reasonably be expected to be the basis of a Claim"--should be measured against a subjective test of what Plaintiffs themselves, and not a reasonable attorney, believed. Specifically, Plaintiffs suggest that the proviso should be measured [*16] against Plaintiffs' "good faith belief and judgment that, based on all the circumstances which they were aware of, the Spencers would not bring a claim." 1 Admiral does not contend, and there is no evidence to suggest, that Plaintiffs "knew" that a claim might be filed against them. Accordingly, the first part of the proviso is not at issue here. The parties have not cited, nor has this court found in its independent research, any case wherein a Florida court has addressed what standard--objective or subjective--should be used when construing an insurance proviso such as the one at issue here. Given the absence of Florida precedent, this court has looked for guidance from other courts. The Ninth Circuit is among those courts having considered policy language similar to the language at issue here. In Weddington v. United National Insurance Co., No , 2009 U.S. App. LEXIS 21095, 2009 WL (9th Cir. Sept. 23, 2009), an unsuccessful litigant, Weddington, sued his former lawyer's insurer after the insurer denied coverage under the lawyer's claims-made professional liability policy. At the time she applied for the policy, the lawyer knew that Weddington's lawsuit had been dismissed because the action was [*17] not brought to trial within the statutory limitations period. In denying coverage, the insurer relied on policy language excluding coverage for claims "arising out of any WRONGFUL ACT occurring prior to the effective date of this policy... if the INSURED at or before the effective date knew or could have reasonably foreseen that such WRONGFUL ACT might be expected to be the basis of a CLAIM." 2009 U.S. App. LEXIS 21095, [WL] at *1. The Ninth Circuit determined that, as used in the claims-made policy, the word "reasonably" was unambiguous and clearly indicated that an objective standard should apply. In the Ninth Circuit's words: This provision does not call for the exercise of the insured's judgment as to the probability of a claim. Instead, the use of the phrase "or could have reasonably foreseen" indicates that coverage is excluded where a claim was foreseeable

6 2010 U.S. Dist. LEXIS 16087, *17 Page 6 from a reasonable, objective viewpoint. Applying an objective standard, the court determined that coverage was excluded because "[f]ailure to bring an action to trial within five years is the sort of incident likely to give rise to a claim." 2009 U.S. App. LEXIS 21095, [WL] at *2 In adopting the objective standard, the Ninth Circuit rejected Weddington's argument that coverage was [*18] excluded only where the insured subjectively believed that a malpractice claim was likely. According to the Ninth Circuit, Weddington's interpretation would permit exclusion from coverage only where the insured "knew" of a claim, effectively nullifying the "reasonably foreseen" language included in the policy. The Ninth Circuit was unwilling to engage in such "rewriting" of the policy's language. 2 2 Plaintiffs cite an earlier Ninth Circuit case, James River Ins. Co. v. Hebert Schenk, P.C., 523 F.3d 915 (9th Cir. 2008), in support of their argument that a subjective standard applies to the second part of the proviso. In James River, the Ninth Circuit considered--among other things--whether coverage existed under a "claims made" policy that excluded claims arising from pre-effective-date professional services "if any insured knew or could have reasonably foreseen that... [such service] could give rise to a claim." Id., at 919. The court determined that summary judgment on the coverage issue was unwarranted because the claim at issue was not necessarily "reasonably foreseeable," where the lawyer complied with his clients' request "'to bring [the] matter to a close' simply by returning [*19] their documents and waiving fees." As the Ninth Circuit later made clear in Weddington, the James River court "did not indicate whether the policy exclusion was subject to a 'subjective' or 'objective' test." Weddington, 2009 U.S. App. LEXIS 21095, 2009 WL , at *2. The Ninth Circuit did so indicate in Weddington, when it clearly stated: "[T]he phrase 'or could have reasonably foreseen' indicates that coverage is excluded where a claim was foreseeable from a reasonable, objective viewpoint." 2009 U.S. App. LEXIS 21095, [WL] at *1. In Mt. Airy Insurance Company v. Thomas, 954 F. Supp (W.D. Pa. 1997), a malpractice action was filed against R. Charles Thomas, a lawyer, after a client's personal injury action was dismissed with prejudice for failure to timely prosecute. After the action was dismissed, Thomas submitted a professional liability renewal application to Mt. Airy, denying on the application that he was "aware of any claim, incident, act or omission in the last year with might reasonably be expected to be the basis of a Claim or suit, arising out of the performance of professional services." Id. at 1075 (emphasis in original). Mt. Airy issued to Thomas a claims-made professional liability policy, effective June 1, 1994, [*20] to June 1, 1995, that excluded "any CLAIM arising out of any act, error, omission or PERSONAL INJURY occurring prior to the effective date of this policy if an INSURED at the effective date knew or could have reasonably foreseen that such act, error, omission or PERSONAL INJURY might be expected to be the basis of a CLAIM or suit." Id. (emphasis in original). After the client filed a malpractice action against Thomas during the coverage period, Mt. Airy filed an action in federal district court seeking a declaration that coverage was excluded under the policy terms. Applying an objective standard, the court in Thomas determined that Thomas's policy excluded coverage for his client's malpractice claim. The court explained: We predict the Pennsylvania Supreme Court, if faced with the present facts, would apply an objective "reasonable person" standard. In so finding, we distinguish between facts which are known to an attorney, which facts, when viewed by a reasonable person, could give rise to a claim of malpractice, and impressions which lead the attorney to believe that the client will not pursue a claim for malpractice. In the first instance, the fact that an attorney has failed to [*21] prosecute a claim on behalf of his client, to the extent that a court dismisses the complaint with prejudice after twelve years of inactivity, would give a reasonable person a basis to believe that a breach of a professional duty has occurred. The subjective impression or belief of the attorney, based on his perceived relationship with his client or otherwise, as

7 2010 U.S. Dist. LEXIS 16087, *21 Page 7 to whether the client will actually pursue a malpractice claim against him falls into the second category. It is this second category of subjective belief or impression that we believe the Pennsylvania Supreme Court would reject. Id. at Other courts have likewise determined that an objective standard--albeit one that takes into account the facts known to the lawyer--applies to policy provisions precluding coverage if an insured could reasonably foresee that a wrongful act might be expected to be the basis of a claim. See, e.g., Westport Ins. Corp. v. Cotten Schmidt, LLP, 605 F. Supp. 2d 796, 805 (N.D. Tex. 2009) (applying a reasonable-attorney-in-the-insured's-shoes standard); Coregis Ins. Co. v. Wheeler, 24 F. Supp. 2d 475, (E.D. Pa. 1998) (same); see also Colliers Lanard & Axilbund v. Lloyds of London, 458 F.3d 231, 237 (3d Cir. 2006) [*22] (interpreting a provision stating that coverage would be available "provided that the insured had no knowledge of any suit, or any act or error or omission, which might reasonably be expected to result in a claim or suit as of the date of signing the application for this insurance" as incorporating a subjective look at the insured's actual knowledge and an objective consideration of 'whether a reasonable professional in the insured's position might expect a claim or suit to result'"); Ross v. Cont'l Cas. Co., 420 B.R. 43, 2009 WL , at *6 (D.D.C. 2009) (finding that a coverage provision barring claims if the insured "had a basis to believe that any... act or omission... might reasonably be expected to be the basis of a claim" unambiguously required "an objective inquiry into what might have been reasonably expected to form a claim based on the knowledge [the lawyer] possessed when the policy took effect"). 3 3 In support of their subjective standard argument, Plaintiffs cite four cases, including James River (discussed in a previous footnote), none of which is persuasive given the circumstances here. In Citizens Bank of Jonesboro, Ark. v. W. Employers Ins. Co., 865 F.2d 964, (8th Cir. 1989), [*23] the court construed policy language that was very different from the language construed here. In Kopelowitz v. Home Ins. Co., 977 F. Supp. 1179, 1189 (S.D. Fla. 1997), and Coregis Ins. Co. v. McCollum, 1997 U.S. Dist. LEXIS 3147, 1997 WL , at B. * 5 (M.D. Fla. 1997), the courts never reached the second part of the "knew or could have reasonably foreseen" inquiry. In Kopelowitz, there were genuine issues of fact about what the insured knew, precluding summary judgment. In Coregis, before applying for a claim-made policy, the insured documented her belief that her client might file a malpractice claim against her, satisfying the first part of the inquiry. Consistent with the decisions cited above, this court concludes--and predicts that the Florida Supreme Court would conclude--that an objective standard is unambiguously indicated by a coverage provision that twice uses the word "reasonably" in its proviso, precluding coverage if an insured "could [] reasonably foresee that [a] Wrongful Act might reasonably be expected to be the basis of a Claim." In other words, coverage is excluded if, prior to the effective date of the Admiral professional liability policy, a reasonable lawyer--standing in Plaintiffs' shoes--would [*24] foresee that a malpractice claim might be filed by Mary and/or Robert Spencer. Applying this standard, it is evident that the Spencers' malpractice claim is not covered by the Admiral policy. At the inception of the Admiral claims-made policy, Plaintiffs knew that, in an order characterizing John Booth's actions as "implausible" and his affidavit as "dubious," Judge Smoak had dismissed Mary Spencer's wrongful death action on statute of limitations grounds. Failure to file an action within the statute of limitations is an obvious breach of a lawyer's duty and constitutes a classic example of professional neglect. Clearly, without more, Judge Smoak's dismissal order would have put a reasonable attorney on notice that a malpractice claim might be coming. That Michles and Booth had a good faith belief that Spencer would not file a claim is of no import. The attorneys' subjective impressions do not factor into an objective analysis. See, e.g., Ross, 420 B.R. 43, 2009 WL , at *6, 11 (concluding that a lawyer's good faith belief that no claim would be filed, based on his client's failure to complain or to indicate that a malpractice claim would be filed, was not relevant to the issue of whether a [*25] malpractice claim was reasonably foreseeable); Thomas, 954 F. Supp. at 1080 (explaining that the subjective impression of the attorney, based on his

8 2010 U.S. Dist. LEXIS 16087, *25 Page 8 perceived relationship with his client, as to whether the client would actually pursue a malpractice claim against him, was not relevant to an objective analysis). It matters not, moreover, that Michles and Booth disagreed with Judge Smoak's decision to dismiss the case. What matters is the fact that Judge Smoak dismissed the case on statute of limitations grounds, extinguishing altogether the Spencers' ability to pursue a wrongful death claim on behalf of their son. That fact trumps the lawyers' subjective thoughts about what the judge's decision should have been, their subjective beliefs about the wrongfulness, if any, of their actions, and their subjective judgment regarding the merits of any malpractice claim. See Ross, 420 B.R. 43, 2009 WL , at *6 (coverage exclusion applied even though the insured lawyer was confident of success in contesting the default judgment entered by the trial judge); Westport Ins. Corp. v. Cotten Schmidt, LLP, 605 F. Supp. 2d 796, 805 (N.D. Tex. 2009) (noting that a claim need not be probable or even likely to [*26] put a reasonable attorney on notice that a claim might be made); Coregis Ins. Co. v. McCollum, No CIV-T-17B, 1997 U.S. Dist. LEXIS 3147, 1997 WL at *5 (noting that "[i]n no way d[id] the [policy] exclusion require that... a [malpractice] claim have merit or that the insured reasonably believe it to have merit"). That Plaintiffs' subjective impressions and beliefs are considered irrelevant does not mean that facts upon which those subjective impressions and beliefs are based are also considered irrelevant. If there were facts known to Plaintiffs, affirmatively indicating that the Spencers would not file a malpractice claim, those facts would enter into an objective analysis of whether a claim was reasonably foreseeable. Here, there are no such facts. Indeed, after Judge Smoak entered his dismissal order, neither Michles nor Booth had any communications with Robert Spencer, leaving them with no way to know how Robert would react, or what actions he might take, upon learning why Judge Smoak dismissed of the wrongful death case. Certainly, they had no facts from which to conclude that Robert--a client who earlier complained about the legal services he was receiving--would not file a malpractice claim [*27] in response to the dismissal of the case. As to Mary Spencer, Booth could vaguely recall only two post-dismissal conversations, both occurring within days of the dismissal. According to Booth, Mary at that time graciously declined to pursue an appeal because she "d[id]n't want to do this anymore." That she did not then complain or indicate that a malpractice claim would follow does not mean--or even suggest--that, upon further reflection, she would not seek counsel and perhaps file a malpractice claim. Michles had even less post-dismissal contact with Mary Spencer than Booth. He thinks, but is not sure, that he once talked with her after the time for appeal had lapsed and before he applied for the Admiral insurance policy. He thinks he may have then communicated his disappointment to Mary that an appeal was not being pursued. Michles's impressions about Mary--that she was gracious, that she was appreciative of Plaintiffs' services, and that she was resigned to thinking her wrongful death case was likely to be unsuccessful--were based largely on his pre-dismissal contact with Mary and on information communicated to him through Booth. The post-dismissal facts known to Michles, like those [*28] known to Booth, in no way reveal that Mary Spencer would not file a malpractice claim. III. CONCLUSION In sum, the court predicts that the Florida Supreme Court would adopt an objective standard for determining whether a malpractice claim was reasonably foreseeable given the facts known by Plaintiffs at the time they applied for the Admiral insurance policy. From those facts, a reasonable attorney would have foreseen that a wrongful act could reasonably be expected to form the basis of a malpractice claim. Coverage of the malpractice claim asserted by the Spencers was thus excluded under the terms of the Admiral policy. Accordingly, it is ORDERERD: 1. Admiral's motion for summary judgment (doc. 21) is GRANTED. 2. Plaintiffs' motion for summary judgment (docs. 22 & 27) is DENIED. 3. The Clerk is directed to enter judgment in Admiral's favor and against Plaintiffs. DONE AND ORDERED this 12th day of February, /s/ William Stafford

9 2010 U.S. Dist. LEXIS 16087, *28 Page 9 WILLIAM STAFFORD SENIOR UNITED STATES DISTRICT JUDGE

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