Civil No. WDQ-09-2754.


United States District Court, D. Maryland, Northern Division.


WILLIAM D. QUARLES Jr., District Judge.

Trice, Geary & Myers, LLC ("TGM") and Kevin E. Myers sued CAMICO Mutual Insurance Company ("CAMICO") for breach of contract and a declaratory judgment on the duty to defend. CAMICO counterclaimed for declaratory judgment on the duty to indemnify. Pending are the Plaintiffs' motions for partial summary judgment and to dismiss, and CAMICO's motion for summary judgment. For the following reasons, the Plaintiffs' motions will be denied, and CAMICO's motion for summary judgment will be granted.


TGM is an accounting firm in Salisbury, Maryland. Compl. ¶ 4. In 2007 and 2008, TGM purchased "claims made and reported" Accountants Professional Liability Insurance Policies from CAMICO ("the Policy"). See Compl. Ex. B-1 [hereinafter APLIP]; Answer Ex. 1.2 Kevin Myers is a Certified Public Accountant and principal of TGM who is insured under the Policy. Compl. ¶ 5; APLIP § II.b.

Under the Policy, CAMICO agreed to indemnify3 and defend4 the insured against claims arising out of their provision of professional services. Id. §§ I.A.1, I.B.1. "Professional Services" generally include activities (1) performed by an insured that benefit TGM, or (2) undertaken by an insured as a member of a professional board or committee related to the accounting profession. Id. § IV.o. Activities "performed by an [i]nsured in his/her capacity as an agent or broker for the placement or renewal of insurance products or for the sale of annuities" are not considered "professional services." Id. at Special Exclusion Endorsement.

The Policy's limits of liability are $5,000,000 per claim and $10,000,000 in the aggregate. Id. at 5. Covered "claims" include, inter alia, suits filed against the insured for money or services. Id. § IV.c. The Policy limits coverage to $100,000 for damages and claims expenses5 "arising from, related to or in connection with any Tax Shelter Investment."6 Id. § I.C.1.a.

Claims in connection with or arising out of services provided by the insured acting in another capacity7 or products sold or distributed by the insured are excluded from coverage entirely.8 Id. § III.d. A "Special Exclusion Endorsement" to the Policy also excludes claims "in connection with or arising out of any act, error or omission by any [i]nsured in his/her capacity as an agent or broker for the placement or renewal of insurance products or for the sale of annuities." Id. at Special Exclusion Endorsement.

On June 2, 2008, Thomas R. Ruark and affiliated entities9 sued Hartford Life & Annuity Insurance Company ("Hartford") and others10 in Baltimore County Circuit Court for claims arising from the sale of a defined benefit pension plan funded by Hartford life insurance policies (the "DBP Plan") to Baja Holdings in September 2003 (the "Hartford Action").11 Compl. Ex. B-3 ¶¶ 4, 13, 28. The Hartford Defendants allegedly marketed the DBP Plan to Baja Holdings as a way to obtain significant tax benefits under Section 412(i) of the Internal Revenue Code. Id. ¶¶ 13, 23. Though Myers and TGM were not defendants, the complaint alleged that Myers — acting as a TGM accountant and tax advisor — recommended the DBP Plan to Ruark and Baja Holding without disclosing that he was a Hartford agent and would receive a commission from the sale. Id. ¶¶ 17-18, 26-27. Relying on Myer's tax advice, Baja Holdings purchased the DBP Plan ("the Baja Policy") and established Baja DBP to be funded through life insurance policies purchased from Hartford. Id. ¶¶ 18, 28.

In 2004, the IRS made several rulings about funding 412(i) plans. Id. ¶¶ 34-36. The complaint alleges that Myers "acting as [an] agent[ ] of Hartford . . . wrongly represented to [the Hartford] Plaintiffs that the Revenue Rulings would not affect them," which induced Ruark and Baja Holdings to pay Hartford additional premiums and file tax returns without the required forms for a listed transaction. Id. ¶ 36. In 2006, an IRS audit of Baja DBP disclosed numerous defects in the Baja Policy. Id. ¶ 37. As a result of the Hartford Defendants' alleged misrepresentations, the Hartford Plaintiffs have incurred substantial audit-related expenses and may be liable for impermissible deductions taken in connection with the Baja Policy. Id. ¶ 38.

In January 2009, Myers and TGM learned that Ruark and his affiliates intended to pursue claims against them for the Baja Policy transaction unless a settlement was negotiated. Ronald B. Klein Cert. ¶ 4, Ex. A, Dec. 21, 2009. Myers and TGM gave notice to CAMICO of these "potential claims" under the Policy. Id. ¶ 5. On February 13, 2009, CAMICO informed Myers and TGM that it "owe[d] no coverage obligation under the Policy in connection with [that] claim." Id. at Ex. B at 1. CAMICO explained that any accounting and financial services provided by Myers associated with the sale of the Baja Policy had been in his capacity as an agent of Hartford. Id. at 6. Thus, his activities were outside the scope of "professional services" covered by the Policy and within the "Special Exclusion Endorsement," "Insured Acting in Another Capacity," and "Products Liability" exclusions to coverage. Id. at 6-7.

On April 10, 2009, IAI filed a third party complaint in the Hartford Action for indemnification and contribution against, inter alia, TGM and Myers. Compl. Ex. B-4 ¶¶ 19-25, 34-35. On April 24, 2009, Ruark and his affiliates sued Myers and TGM in Wicomico County Circuit Court for negligence and negligent misrepresentation in connection with the Baja Policy transaction (the "Ruark Action").12 Id. at Ex. B-2 ¶¶ 13-14, 19-20. On June 3, 2009, Arbitration & Mediation, Inc. (A&M), Caleb L. Fowler, and his wife Lynne V. Fowler sued Myers and TGM in Somerset County Circuit Court, alleging that Myers had recommended a DBP Plan — similar to the Baja Policy — for A&M without disclosing his financial interest in the transaction (the "Fowler Action").13 Id. at Ex. B-5 ¶¶ 13-17. CAMICO has refused to defend TGM and Myers in the Hartford, Ruark, and Fowler Actions (collectively the "underlying actions").

On September 14, 2009, TGM and Myers sued CAMICO in Wicomico County Circuit Court for breach of contract and a declaration of CAMICO's obligation under the Policy to defend TGM and Myers in the underlying actions. Compl. ¶¶ 40-50. On October 22, 2009, CAMICO removed that case to federal court based on diversity jurisdiction. Notice of Removal ¶ 11. On October 29, 2009, CAMICO filed its answer and counterclaims for a declaration that it "owed and owes no . . . indemnity obligation concerning the underlying actions" and for attorneys' fees. Answer at 11-16.

On November 11, 2009, the Plaintiffs filed a motion to dismiss the counterclaim, Paper No. 15, and a motion for partial summary judgment, requesting (1) a declaration that CAMICO must provide them with a defense in the underlying actions, (2) expenses incurred in defending themselves "in an amount to be determined," and (3) attorney fees and costs incurred in bringing this action, Paper No. 14 at 20. On December 21, 2009, CAMICO filed a cross-motion for summary judgment on all the claims and counterclaim. Paper No. 18 at 2.


A. Standards of Review

1. Rule 12(b)(6)

Under Fed. R. Civ. P. 12(b)(6), an action may be dismissed for failure to state a claim upon which relief can be granted. Rule 12(b)(6) tests the legal sufficiency of a complaint, but does not "resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).

The Court bears in mind that Rule 8(a)(2) requires only a "short and plain statement of the claim showing that the pleader is entitled to relief." Migdal v. Rowe Price-Fleming Int'l Inc., 248 F.3d 321, 325-26 (4th Cir. 2001). Although Rule 8's notice-pleading requirements are "not onerous," the plaintiff must allege facts that support each element of the claim advanced. Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 764-65 (4th Cir. 2003). These facts must be sufficient to "state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

To present a facially plausible complaint, a plaintiff must do more than "plead[ ] facts that are `merely consistent with a defendant's liability'"; the facts as pleaded must "allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (quoting Twombly, 550 U.S. at 557). The complaint must not only allege but also "show" the plaintiff is entitled to relief. Id. at 1950 (citing Fed. R. Civ. P. 8(a)(2)). "Whe[n] the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not shown — that the pleader is entitled to relief." Id. (internal quotation marks omitted).

The Court "should view the complaint in a light most favorable to the plaintiff," and "accept as true all well-pleaded allegations," Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993), but the Court is "not bound to accept as true a legal conclusion couched as a factual allegation," Papasan v. Allain, 478 U.S. 265, 286 (1986), or "allegations that are mere[ ] conclus[ions], unwarranted deductions of fact, or unreasonable inferences," Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002).

2. Rule 56

Under Rule 56(c), summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In considering a motion for summary judgment, "the judge's function is not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. The Court must "view the evidence in the light most favorable to . . . the nonmovant, and draw all reasonable inferences in h[is] favor," Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002), but the Court also "must abide by the affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial," Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 526 (4th Cir. 2003).

B. APLIP Policy

1. Choice of Law

"In a diversity action, [the] law of the forum court governs the substantive issues, and federal law governs the procedural issues." Lampe v. Kim, 105 Fed. Appx. 466, 468 (4th Cir. 2004) (citing Dixon v. Edwards, 290 F.3d 699, 710 (4th Cir. 2002)). Maryland's choice of law rules govern. See id.; Wells v. Liddy, 186 F.3d 505, 521 (4th Cir. 1999). Maryland courts follow the rule of lex loci contractus, which provides that the construction of a contract is determined by the law of the state where the contract was made. Allstate Ins. Co. v. Hart, 327 Md. 526, 611 A.2d 100, 101 (Md. 1992). The parties appear to agree that the contract was made in Maryland, and Maryland law governs the interpretation of the Policy.

2. Duty to Defend

The parties have filed cross motions for summary judgment on CAMICO's duty to defend the Plaintiffs in the underlying actions. See Paper Nos. 14 & 18. The Plaintiffs argue that CAMICO has a duty to defend them because the claims in the underlying complaints arise, in part, from covered Professional Services. Paper No. 14 at 10-13. CAMICO argues that it has no duty to defend because the allegations in the underlying actions all relate to Myers's sales of the DBP Plan in his capacity as a Hartford agent, activities which are barred from coverage by the "Special Exclusion Endorsement" and the "Products Liability" exclusion. Paper No. 18 at 13-22.

Maryland courts recognize that "[t]he promise to defend the insured, as well as the promise to indemnify, is the consideration received by the insured for payment of the policy premiums." Clendenin Bros., Inc. v. U.S. Fire Ins. Co., 889 A.2d 387, 392 (Md. 2006) (quoting Brohawn v. Transamerica Ins. Co., 276 Md. 396, 347 A.2d 842, 851 (Md. 1975)). Because the primary purpose of litigation insurance is to "protect[ ] the insured from the expense of defending suits brought against him," Brohawn, 347 A.2d at 851, "[t]he duty to defend an insured is broader than the duty to indemnify," Utica Mut. Ins. Co. v. Miller, 130 Md.App. 373, 746 A.2d 935, 939 (Md. Ct. Spec. App. 2000).

"Even if a tort plaintiff does not allege facts which clearly bring the claim within or without the policy coverage, the insurer still must defend if there is a potentiality that the claim could be covered by the policy." Brohawn, 347 A.2d at 850.14 "If there is a possibility, even a remote one, that the plaintiff's claims could be covered by the policy, there is a duty to defend." Litz v. State Farm Fire & Cas. Co., 346 Md. 217, 695 A.2d 566, 572 (Md. 1997). Thus, the insurer is generally obligated to defend all claims in an action against the insured if any claims are potentially covered. Utica Mut., 746 A.2d at 940.

To determine whether a liability insurer must defend its insured in a tort suit, Maryland courts consider: "(1) what is the coverage and what are the defenses under the terms and requirements of the insurance policy? (2) do the allegations in the tort action potentially bring the tort claim within the policy's coverage?" St. Paul Fire & Marine Ins. Co. v. Pryseski, 292 Md. 187, 438 A.2d 282, 285 (Md. 1981).15 Accordingly, the court "must ascertain the scope and limitations of coverage under the . . . insurance policies and then determine whether the allegations in the [underlying] action[s] would potentially be covered under those policies." Aetna Cas. & Sur. Co. v. Cochran, 337 Md. 98, 651 A.2d 859, 862 (Md. 1995).

To interpret the scope and limitations of an insurance policy, the court must "construe the instrument as a whole to determine the intention of the parties." Clendenin Bros., 889 A.2d at 393. First, the court examines the contract language chosen by the parties. Cole v. State Farm Mut. Ins. Co., 338 Md. 131, 656 A.2d 779, 784 (Md. 1995).16 Words in the contract are given their "usual, ordinary and accepted meaning" unless there is evidence that a special or technical meaning was intended by the parties. Cheney v. Bell Nat'l Life Ins. Co., 315 Md. 761, 556 A.2d 1135, 1138 (Md. 1989). If the language used is plain and unambiguous, the court will determine the meaning of contract terms as a matter of law. Clendenin Bros., 889 A.2d at 393. But, if the language is ambiguous,17 the court may look to extrinsic evidence. Id.

Under the Policy, CAMICO has a duty to defend TGM and its employees against claims "arising out of . . . [a] negligent act, error or omission in rendering or failing to render Professional Services" unless those claims are within an exclusion. APLIP § I.A.1. By a "Special Exclusion Endorsement," the Policy expressly excluded from coverage "any [c]laim in connection with or arising out of any act, error or omission by any [i]nsured in his/her capacity as an agent or broker for the placement or renewal of insurance products or for the sale of annuities." Id. at Special Exclusion Endorsement.18

Given their common understanding, the words "arising out of" mean "originating from, growing out of, flowing from, or the like." Mass Transit Admin. v. CSX Transp., Inc., 349 Md. 299, 708 A.2d 298, 305 (Md. 1998)(quoting N. Assurance Co. of Am. v. EDP Floors, Inc., 311 Md. 217, 533 A.2d 682, 688 (Md. 1987)). The words "in connection with" ordinarily mean associated with, related to, or the like. The stated purpose of the Special Endorsement Exclusion was to preclude coverage of "any claims in connection with or arising out of or relating to . . . acts, errors, or omissions in the rendering or failure to render services as an insurance agent or broker" by the insured. APLIP at Special Exclusion Endorsement. Considered in this context, the phrase "in connection with or arising out of" reinforces the intended breadth of this Policy exclusion.19

The Plaintiffs seek to distinguish between the allegations against them as insurance agents — which are within the Special Endorsement Exclusion — and the allegations against them as professional accountants and financial advisors, which are not. All the underlying claims are "in connection with or arising out of" Myers's sale and promotion of the DBP Plans in his capacity as an agent or broker of Hartford, and under the Special Exclusion Endorsement, any of the Plaintiffs' alleged acts, errors, and omissions connected with the DBP Plan sales are excluded from coverage.20

An examination of the underlying complaints shows that all the Plaintiffs' alleged acts and omissions — even those arguably made in their sole capacity as accountants and financial advisors — were connected with the DBP Plan sales.21 Because the allegations against Myers and TGM in the underlying complaints are all "in connection with or arising out of" activities excluded by the Special Exclusion Endorsement, CAMICO has no duty to defend and is entitled to summary judgment.22

2. Duty to Indemnify

CAMICO's counterclaim requests a declaration that, under the Policy, it does not have any indemnity obligation in the underlying actions. Answer 16. Under Maryland law, when there is no potentiality of liability coverage under an insurance policy, there may be no duty to indemnify. See Progressive Cas. Ins. Co. v. Dunn, 106 Md.App. 520, 665 A.2d 322, 324 (Md. Ct. Spec. App. 1995). Because the Policy does not cover any of the claims made in the underlying actions, CAMICO may not be liable for indemnification and must be granted summary judgment on its declaratory judgment counterclaim.

3. Attorneys' Fees

Without providing a legal basis for its claim, CAMICO requested an award of costs and attorneys' fees associated with this action. Answer 16. The Plaintiffs argue that Maryland law does not provide for recovery of costs and attorneys' fees by an insurer who must defend its decision to deny coverage of an insurance claim. Paper No. 22 at 4. As CAMICO has failed to address that argument or otherwise provide a legal basis for its claim, CAMICO may not recover its costs and attorneys' fees.


For the reasons stated above, the Plaintiffs' motions to dismiss and for summary judgment will be denied, and CAMICO's motion for summary judgment will be granted.


1. For the motion to dismiss, the well-pled allegations in the Complaint are accepted as true. See Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). In the motions for summary judgment, the Court will draw inferences from the facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zennith Radio Corp., 475 U.S. 574, 587 (1986).
2. Two policies have been filed: (1) Policy No. MDL01151-05 effective from July 1, 2007 to July 1, 2008 was attached to the complaint; (2) Policy No. MDL01151-06 effective July 1, 2008 to July 1, 2009 was attached to CAMICO's answer. The relevant terms of the two policies are identical. For clarity, "the Policy" will refer to Policy No. MDL01151-05 unless otherwise indicated.
3. Subject to certain limitations, Section I.A.1 required CAMICO to "pay those sums that the Insured becomes legally obligated to pay as Damages because of a Claim arising out of an Insured's negligent act, error or omission in rendering or failing to render Professional Services." APLIP § I.A.1 (emphasis in original).
4. Section I.B.1 gives CAMICO "a right and duty to defend and settle Claims alleging Damages potentially covered by this Policy, even if the Claim is groundless, false or fraudulent." APLIP § I.B.1.
5. "Claims expenses" include "the fees charged by an attorney designated by [CAMICO] to defend any [i]nsured, and all other fees, costs and expenses resulting from the investigation, adjustment, defense and appeal of a claim, if incurred by an [i]nsured at [CAMICO]'s request." APLIP § IV.d.
6. A "Tax Shelter Investment" is: 1. (i) a Treasury Regulation § 1.6011-4(b)(2) "reportable transaction"; OR (ii) any investment or other arrangement where (a) the investment or other arrangement actually generates or (b) representations made as part of the investment or other arrangement's written sale offering indicate that the investment or arrangement will generate taxable income exclusions, tax deductions, or tax credits exceeding the investment or other arrangement's required capital contribution by at least two to one (2:1); OR (iii) any other investment, plan or arrangement having tax avoidance or evasion as its primary purpose. An investment, plan or arrangement will have a primary tax avoidance or evasion purpose when that purpose exceeds any other purpose of the investment, plan or arrangement; AND 2. Any [i]nsured receives or expects to receive any compensation or other payment, whether or not related to Professional Services rendered, which is a commission, profit-sharing, participation, payment in securities, success fee, or similar kind of payment dependent upon the completion or success of the transaction.


7. The Policy does not cover claims "in connection with or arising out of the services of any Person who is an [i]nsured acting as an employee, officer or director of any company, business, entity or charitable organization other than [TGM]." APLIP § III.d.
8. The Policy does not cover "Products Liability" claims made "in connection with or arising out of the use of, or existence of any condition in or warranty of, products sold or distributed by an [i]nsured." APLIP § IV.j.
9. The Plaintiffs were: Ruark; Baja Holdings, Inc. ("Baja Holdings"); and Baja Holdings, Inc. Defined Benefit Plan ("Baja DBP") (collectively the "Hartford Plaintiffs").
10. The Defendants were: Hartford, Michael A. Dimayo, and Insurance Alternatives, Inc. ("IAI") (collectively the "Hartford Defendants").
11. See Ruark et al. v. Hartford Life & Annuity Ins. Co. et al., Case No. 03-C-08-006022 TO (filed June 2, 2008).
12. See Thomas H. Ruark, et al. v. Kevin Myers, et al., Case No. 22-C-09-000708 (filed Apr. 24, 2009).
13. See Caleb L. Fowler, et al. v. Kevin Myers, et al., Case No. 19-C09-013249 (filed June 23, 2009).
14. Though an insurer may not contest the potentiality of coverage using extrinsic evidence, an insured may use extrinsic evidence to show a potential for coverage under the insurance policy. Aetna Cas. & Sur. Co. v. Cochran, 337 Md. 98, 651 A.2d 859, 863-64 (Md. 1995). "[W]hen a complaint fails to assert tort allegations that are sufficient to establish potentiality of coverage, an insured is permitted to introduce extrinsic evidence that attempts to bring the action within the ambit of coverage under the insurance policy." Montgomery County Bd. of Educ. v. Horace Mann Ins. Co., 154 Md.App. 502, 840 A.2d 220, 225 (Md. Ct. Spec. App. 2003) (emphasis added). Although Myers and TGM were not parties to the original Hartford suit, the Plaintiffs may use the allegations in that complaint as extrinsic evidence of the potentiality of coverage under the Policy.
15. "The first question focuses upon the language and requirements of the policy, and the second question focuses upon the allegations of the tort suit." St. Paul, 438 A.2d at 285.
16. "An insurance contract . . . is measured by its terms unless a statute, a regulation, or public policy is violated thereby." Litz, 695 A.2d at 569.
17. A term is ambiguous when a reasonably prudent person would find it "susceptible to more than one meaning." Cole, 753 A.2d at 537.
18. Also excluded from coverage are "Products Liability" claims made "in connection with or arising out of the use of, or existence of any condition in or warranty of, products sold or distributed by an [i]nsured." Id. § III.j. The parties dispute whether the DBP Plan is a "product" for the purposes of this exclusion. See Paper No. 20 at 13-14. Because the Special Exclusion Endorsement clearly bars coverage of the Underlying actions, this Court need not determine whether the DBP Plan sales are also within this exclusion.
19. Although the words "insurance product" and "annuity" are not defined in the Policy, the parties appear to agree that the DBP Plans are within the definition of one or both of those terms. See Paper No. 21 at 10. Similarly, the Plaintiffs appear to concede that Myers was acting, at least in part, as an "agent or broker" of Hartford during the DBP Plan transactions. See Paper No. 23 at 2.
20. CAMICO notes "the exclusion is not written to bar claims that `exclusively' or `solely' seek redress for an accountant acting as agent for the sale of insurance product, but, instead, bars claims [that] simply have a connection with or arise out of such conduct even if other conduct is also alleged." Paper No. 23 at 3.
21. In the IAI Third Party Action, the complaint alleges that Myers, as an employee of TGM, gave incorrect tax advice about the application of Internal Revenue Code Section 412(i) to the DBP Plan and failed to disclose his affiliation with Hartford and financial interest in the sale of the Baja Policy. Compl. Ex. B-4 ¶¶ 6-7, 20. The complaint in the Ruark Action similarly alleges that "[i]n early 2003, Myers, purporting to act as an accountant and tax advisor for Ruark . . . and Baja Holdings, recommended and proposed that . . . [they] create Baja DBP," which was to be funded through life insurance policies and would qualify as a defined benefit plan under Section 412(i). Compl. Ex. B-2 ¶ 13. It further alleges that TGM and Myers promoted the Baja Policy, encouraged the Ruark Plaintiffs to continue paying premiums even after unfavorable IRS Guidance was published, and failed to disclose their financial interest in the Baja Policy transaction. Id. ¶¶ 14-20, 23-26, 30-31, 33-34. The Fowler Action alleged that TGM and Myers recommended the DBP Plan to the Fowler Plaintiffs, told them that it would qualify under Section 412(i) without properly investigating IRS Guidance, advised them that it was not a "listed transaction" under the Internal Revenue Code, failed to disclose that they would receive a commission on its sale, filed improper tax documents for the DBP Plan, and failed to advise and gave incorrect advice regarding the effect of newly published IRS Guidance on the DBP Plan. Compl. Ex. B-5 ¶¶ 13-17, 20-24, 26-27, 29-36, 46, 56. Even though Myers and TGM were not originally parties to the Hartford Action, that complaint made allegations against TGM and Myers similar to those in the other underlying complaints. See Compl. Ex. B-3 ¶¶ 17-19, 25-30, 36.
22. Because the breach of contract claim depends upon a finding that CAMICO had a duty to defend the Plaintiffs in the underlying actions, CAMICO will also be granted summary judgment on that claim.


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