Boral Industries, Inc. v. Continental Casualty Co. ( 2005 )


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  •                                                              [DO NOT PUBLISH]
    
                   IN THE UNITED STATES COURT OF APPEALS
    
                            FOR THE ELEVENTH CIRCUIT
                             ________________________                   FILED
                                                               U.S. COURT OF APPEALS
                                    No. 05-10198                 ELEVENTH CIRCUIT
                                                                    AUGUST 1, 2005
                                Non-Argument Calendar
                                                                  THOMAS K. KAHN
                              ________________________
                                                                       CLERK
    
                         D. C. Docket No. 02-02929-CV-JTC-1
    
    BORAL INDUSTRIES, INC.,
    
                                                       Plaintiff-Appellant,
    
                                          versus
    
    CONTINENTAL CASUALTY COMPANY,
    
                                                       Defendant-Appellee.
    
                              ________________________
    
                      Appeal from the United States District Court
                         for the Northern District of Georgia
                           _________________________
                                  (August 1, 2005)
    
    Before TJOFLAT, DUBINA and MARCUS, Circuit Judges.
    
    PER CURIAM:
    
          Boral Industries, Inc. (“Boral”) appeals the district court’s entry of summary
    
    judgment in favor of Continental Casualty Company (“Continental”), in Boral’s
    
    action to obtain a declaration that its commercial general liability policy with
    Continental did not provide coverage for the underlying indemnity claim and,
    
    therefore, Continental had acted in bad faith by settling the claim for less than the
    
    policy deductible and then seeking to recover the total amount of the settlement from
    
    Boral. In a counterclaim, Continental sought recovery, under the policy deductible,
    
    of the $300,000 settlement payment. After the completion of discovery, the parties
    
    filed cross-motions for summary judgment. The district court, interpreting the “right
    
    to settle” provision in Boral’s Continental policy, concluded that the provision, which
    
    was unqualified, permitted the settlement of the underlying claim and that Continental
    
    was entitled to full reimbursement since the deductible exceeded the settlement
    
    amount. Accordingly, it granted Continental’s motion for summary judgment on both
    
    Boral’s claims and Continental’s counter-claim. After thorough review of the record
    
    and careful consideration of the parties’ briefs, we affirm.
    
          We review the district court’s order granting summary judgment de novo. See
    
    Madray v. Publix Supermarkets, Inc., 
    208 F.3d 1290
    , 1296 (11th Cir. 2000). A
    
    motion for summary judgment should be granted when “the pleadings, depositions,
    
    answers to interrogatories, and admissions on file, together with the affidavits, if any,
    
    show that there is no genuine issue as to any material fact and that the moving party
    
    is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56 (c). “Where the
    
    record taken as a whole could not lead a rational trier of fact to find for the non-
    
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    moving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v.
    
    Zenith Radio Corp., 
    475 U.S. 574
    , 587, 
    106 S. Ct. 1348
    , 1356, 
    89 L. Ed. 2d 538
    
    (1986) (quoting First Nat’l Bank of Arizona v. Cities Serv. Co., 
    391 U.S. 253
    , 289,
    
    
    88 S. Ct. 1575
    , 1592, 
    20 L. Ed. 2d 569
     (1968)).
    
          Interpreting the “right to settle” and deductible provisions in the Continental
    
    policy and applying Georgia law, the district court held that Boral, as a sophisticated
    
    corporate entity, had the opportunity to bargain for insurance without a provision that
    
    granted the insurer an “unfettered right to settle claims.” Thus, the court concluded,
    
    Boral, having contractually afforded the right to settle a claim like the underlying
    
    indemnity action here, was obligated to reimburse Continental for the settlement so
    
    long as Continental did not act with bad faith. On the record before it, the district
    
    court found no evidence of bad faith on Continental’s part. Moreover, the district
    
    court determined that there was no genuine issue of fact that Continental had acted
    
    reasonably and in compliance with the unambiguous terms of the policy in (1) settling
    
    the underlying claim and (2) seeking reimbursement from Boral for in an amount that
    
    was less than the deductible. Based on our review of the unambiguous policy
    
    provisions at issue in this appeal and the applicable Georgia law interpreting such
    
    unequivocal provisions in the same manner, we too conclude that Continental was
    
    entitled to summary judgment.
    
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          The district court also denied Boral’s motion to compel discovery and motion
    
    for sanctions based on Continental’s alleged failure to provide the requested
    
    discovery in a timely manner.     These motions concerned Boral’s request for
    
    production of correspondence between Continental and its “outside counsel.”
    
    Continental claimed that the requested items were protected from disclosure by the
    
    attorney-client privilege.   After conducting an in camera inspection of the
    
    correspondence, the district court first noted that the requests to produce were
    
    untimely since discovery had closed four months before Continental’s request.
    
    Moreover, the court found that the items, which were marked “attorney-client
    
    privileged,” contained information that was “largely redundant of other
    
    correspondence and evidence produced in discovery and presently in the record.” We
    
    can find no abuse of discretion in the district court’s decision on this issue. See
    
    Harris v. Chapman, 
    97 F.3d 499
    , 506 (11th Cir. 1996) (reviewing district court
    
    rulings on discovery motions and discovery sanctions under abuse of discretion
    
    standard).
    
          AFFIRMED.
    
    
    
    
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