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Ellett Bros. v. United States Fid. & Guar. Co.

United States Court of Appeals for the Fourth Circuit

September 27, 2001, Argued ; December 28, 2001, Decided

No. 01-1130, No. 00-2533

Opinion

 [*386]  LUTTIG, Circuit Judge:

Ellett Brothers, a handgun manufacturer,  [**2]  is a named defendant in four lawsuits. In three of these lawsuits, the plaintiffs are California municipalities who allege that Ellett's marketing of handguns creates public and private nuisances and violates the California Business and Professions Code. The municipalities request injunctive relief to abate the nuisances and to prevent violations of the Business and Professions Code, restitution to the public of funds obtained in violation of the Code, disgorgement of profits acquired by violating the Code, civil penalties for violating the Code, and costs of suit. One of these three complaints, brought by southern California municipalities, also requests attorneys' fees and "further relief as the Court deems equitable and just." J.A. at 474. The California municipalities do not seek compensatory or punitive damages.

In the fourth lawsuit, the NAACP alleges that Ellett created and maintained an illegal secondary market for guns. J.A. at 587-89. It seeks an injunction requiring Ellett to change its marketing practices, an injunction requiring Ellett to contribute  [*387]  to a fund to supervise gun dealers, attorneys' fees, and "further relief as this Court deems just and proper." J.A. at 594-96. The [**3]  NAACP similarly does not seek compensatory or punitive damages.

Ellett's commercial general liability policy obligates its insurers to pay "those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' or 'property damage'" and to defend Ellett "against any 'suit' seeking those damages." J.A. at 190. Ellett seeks a declaratory judgment that its insurers must defend the above-referenced lawsuits and indemnify Ellett. The district court, concluding that the California municipalities and the NAACP seek only equitable relief, and not damages, against Ellett, granted summary judgment to the insurers on the duty to defend claim. J.A. 163- 64. The district court also allowed Ellett to dismiss voluntarily its indemnity claim against its insurers pursuant to Fed. R. Civ. P. 41. J.A. at 123.

For the reasons that follow, we affirm.

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275 F.3d 384 *; 2001 U.S. App. LEXIS 27342 **

ELLETT BROTHERS, INCORPORATED, Plaintiff-Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY; FIDELITY AND GUARANTY INSURANCE UNDERWRITERS, INCORPORATED; ST. PAUL MERCURY INSURANCE COMPANY, Defendants-Appellees, and INTERNATIONAL INSURANCE COMPANY; RLI INSURANCE COMPANY; MOUNT HAWLEY INSURANCE COMPANY; UNITED NATIONAL INSURANCE COMPANY, Defendants. AMERICAN INSURANCE ASSOCIATION; NATIONAL SHOOTING SPORTS FOUNDATION; NATIONAL ASSOCIATION OF INDEPENDENT INSURERS, Amici Curiae. ELLETT BROTHERS, INCORPORATED, Plaintiff-Appellee, v. UNITED STATES FIDELITY & GUARANTY COMPANY; FIDELITY AND GUARANTY INSURANCE UNDERWRITERS, INCORPORATED; ST. PAUL MERCURY INSURANCE COMPANY, Defendants-Appellants, and INTERNATIONAL INSURANCE COMPANY; RLI INSURANCE COMPANY; MOUNT HAWLEY INSURANCE COMPANY; UNITED NATIONAL INSURANCE COMPANY, Defendants. AMERICAN INSURANCE ASSOCIATION; NATIONAL SHOOTING SPORTS FOUNDATION; NATIONAL ASSOCIATION OF INDEPENDENT INSURERS, Amici Curiae.

Subsequent History:  [**1]  Writ of certiorari denied: Ellett Bros. v. U. S. Fid. & Guar. Co., 2002 U.S. LEXIS 5562 (U.S. Oct. 7, 2002).

Writ of certiorari denied Ellett Bros. v. U.S. Fid. & Guar. Co., 537 U.S. 818, 123 S. Ct. 94, 154 L. Ed. 2d 24, 2002 U.S. LEXIS 5562 (Oct. 7, 2002)

Related proceeding at United States Fid. & Guar. Co. v. Ellett Bros., Inc., 2003 U.S. Dist. LEXIS 29418 (D.S.C., Feb. 11, 2003)

Prior History: Appeals from the United States District Court for the District of South Carolina, at Columbia. Dennis W. Shedd, District Judge. (CA-00-1269-3-19).

Disposition: Affirmed.

CORE TERMS

damages, costs, insurers, lawsuits, equitable relief, equitable, restitution, cleanup, district court, legal damage, insurance contract, disgorgement, attorney's fees, municipalities, chemical, injuries, summary judgment, indemnity claim, property damage, civil penalty, gun dealer, injunction, coverage, spill

Contracts Law, Remedies, Equitable Relief, General Overview, Insurance Law, Commercial General Liability Insurance, Exclusions, Equitable Relief, Contract Interpretation, Intent, Claim, Contract & Practice Issues, Policy Interpretation, Ambiguous Terms, Coverage, Business Insurance, Damages, Triggers, Duty to Defend, Civil Procedure, Forfeitures, Damages, Appeals, Standards of Review, Abuse of Discretion, Dismissal, Voluntary Dismissals, Court Order, Motions for Dismissal