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September 23, 2002


The opinion of the court was delivered by: Stein, District Judge.


The U.S. Court of Appeals for the Second Circuit remanded the above-captioned action to this Court for fact-finding regarding the scope of coverage of an insurance policy held by plaintiffs. The Court concludes that the evidence submitted by the parties fails to resolve the ambiguous language of the policy. Accordingly, the Court applies the contractual rule of contra proferentem to construe the policy in favor of plaintiffs and enters judgment in their favor.


This action arises out of the efforts of plaintiffs Morgan Stanley Group, Inc. and Morgan Stanley & Co., Incorporated (collectively, "Morgan Stanley") to obtain indemnification for the settlement of two legal claims pursuant to an insurance policy they held with defendants New England Insurance Company and ITT New England Management Company, Inc. (collectively, "New England").

In 1985, Morgan Stanley was involved in the sale and purchase of participation interests in a $56 million loan from Siscorp, an Oklahoma corporation, to Fourth and Broadway Associates Ltd., which intended to use the proceeds to acquire and renovate a department store building in downtown Los Angeles. As a result of Morgan Stanley's promotion of the transaction, Whitestone Savings, F.A. ("Whitestone") and The Banking Center ("TBC"), two savings banks located in New York and Connecticut, respectively, purchased participation interests in the loan. Before the participation interests were fully sold, it came to light that Siscorp had made a number of material misrepresentations to Morgan Stanley, TBC and Whitestone regarding the project. Because of these misrepresentations the loan could not be funded and the project failed. Whitestone and TBC subsequently filed lawsuits against Morgan Stanley for relaying false and incomplete information concerning the Siscorp investment. Both suits ultimately settled before trial. After settling the claims, Morgan Stanley sought indemnification from New England of its legal expenses and settlement costs. New England refused to pay, claiming that the Whitestone and TBC lawsuits were not covered by the policy because Morgan Stanley was not acting as an "investment counselor" in the underlying transactions.

Morgan Stanley then filed this action to compel payment of its expenses. On cross-motions for summary judgment, this Court determined that the term "investment counselor" in the E & O policy was ambiguous and denied both motions. See Morgan Stanley Group Inc. v. New England Insurance Co., 7 F. Supp.2d 297, 299-300 (S.D.N.Y. 1998) ("Morgan Stanley I"). At a two-day bench trial in October 1998, the Court considered extrinsic evidence submitted by the parties as to the meaning of the term "investment counselor" and concluded that 1) in order to act as an investment counselor Morgan Stanley had to provide an "independent analysis" of an investment to its customer; and 2) because Morgan Stanley failed to adduce evidence that it had offered an independent analysis of the Siscorp loan, it was not acting as an investment counselor with respect to these transactions, and New England was entitled to judgment in its favor. See Morgan Stanley Group v. New England Ins. Co., 36 F. Supp.2d 605, 611, 613 (S.D.N.Y. 1999) ("Morgan Stanley II").

Morgan Stanley appealed. The U.S. Court of Appeals for the Second Circuit affirmed in part, and vacated and remanded in part. See Morgan Stanley Group v. New England Ins. Co., 225 F.3d 270 (2d Cir. 2000) ("Morgan Stanley III"). The Second Circuit agreed with this Court's conclusion that Morgan Stanley was not acting as an investment counselor with respect to the transactions underlying the Whitestone and TBC lawsuits and accordingly affirmed the judgment in favor of New England as to the TBC claim. Id. at 278. With respect to the Whitestone claim, the Court of Appeals found that 1) the E & O policy contained a second, unresolved ambiguity, namely whether coverage extended to "claims that allege (even contrary to fact) that errors or omissions were committed by the policy holder as an investment counselor" and 2) "the Whitestone claim alleges (contrary to fact) that Morgan Stanley acted in the role of investment counselor." Id. at 275. The Court of Appeals therefore vacated this Court's judgment as to the Whitestone claim and remanded for further fact-finding as to the parties' intent.*fn1

In Morgan Stanley II, this Court recited the procedure applied in interpreting an ambiguous term in an insurance policy:

Once a court determines that, as a matter of law, a term of an insurance policy is ambiguous, "it may accept any available extrinsic evidence to ascertain the meaning intended by the parties during the formation of the contract." Alexander & Alexander Servs. v. These Certain Underwriters at Lloyd's, London, 136 F.3d 82, 86 (2d Cir. 1998) (citation omitted); Hartford Accident & Indem. Co. v. Wesolowski, 33 N.Y.2d 169, 171, 305 N.E.2d 907, 350 N.Y.S.2d 895 (1973). Where extrinsic evidence is conclusory or does not shed light upon the intent of the parties, a court may resort to the contra proferentem rule of contract construction and construe any ambiguities in the contract against the insurer as a matter of law. See McCostis v. Home Ins. Co. of Ind., 31 F.3d 110, 113 (2d Cir. 1994); State v. Home Indem. Co., 66 N.Y.2d 669, 671, 486 N.E.2d 827, 495 N.Y.S.2d 969 (1985).

Morgan Stanley II, 36 F. Supp.2d at 609. In vacating that decision as to the Whitestone claim, the Second Circuit instructed that "if on remand the extrinsic evidence sheds no light on the ["alleged" conduct] ambiguity or `does not yield a conclusive answer,' the district court should apply contra proferentem" since New England drafted the policy and Morgan Stanley did not negotiate the coverage terms. Morgan Stanley III, 225 F.3d at 280 (citing McCostis, 31 F.3d at 113).


As noted above, the E & O policy extends coverage to "[l]oss which the Insured shall become legally obligated to pay . . . by reason of any actual or alleged negligent act, error or omission committed in the scope of the Insured's duties as investment counselors." New England maintains that the word "alleged" modifies "act, error or omission," not "investment counselors," so that the policy provides coverage for an alleged error or omission, but only if the alleged error or omission occurred while the insured was acting as an investment counselor. Morgan Stanley posits that "alleged" refers to the entire clause, and therefore extends to errors or omissions committed while the insured is performing a role that, as described by the claimant in the underlying action, would make the insured an investment counselor.

On remand, the Court directed the parties to submit extrinsic evidence in support of their respective interpretations of the clause. Morgan Stanley referred the Court to several items of evidence already in the record. First, Morgan Stanley's then-Risk Manager James Elliot, who obtained the errors and omissions policy, testified at the October 1998 trial that Morgan Stanley acquired the insurance in order to "cover losses that might arise from allegations or actually giving negligent investment advice to clients." (T. Tr. at 202, annexed to Benkard 2/01/02 Letter as Ex. B.) Second, in a June 2, 1987 letter to broker Marsh & McLennan and a nearly identical October 1, 1987 letter to Morgan Stanley concerning claims arising from the Siscorp transaction, New England wrote that "the complaint does not appear to contain any allegations which would bring the claim within the insuring agreements of the policy. There is no allegation that [Morgan Stanley] committed any negligent act in the scope of its duties as investment counselor." (Benkard 2/01/02 Letter, Exs. C, D.) Finally, in a July 19, 1989 letter to Morgan Stanley, New England's outside counsel wrote that "Morgan Stanley is not alleged [in the Whitestone complaint] to have acted as an investment adviser or investment ...

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