Faulkner v. American Casualty Co. of Reading

BLOOM, Judge. These three appeals in one record evolved from Maryland Deposit Insurance Fund Corp. v. Billman, et al., an action brought by the Maryland Deposit Insurance Fund Corporation (MDIF), as receiver for Community Savings & Loan, Inc. (Community) against various officers, directors and corporate subsidiaries of Community. MDIF’s complaint contained six counts alleging multiple incidents of negligence, misappropriation, and breach of fiduciary duties. In October, 1988, a jury in the Circuit Court for Montgomery County returned verdicts of several million dollars on each count in favor of MDIF against the various defendants.

On appeal, we reversed the judgment and remanded the case for a new trial in light of the court’s failure to declare a mistrial after the jury was allowed to consider documents not in evidence. Billman v. Maryland Deposit Insurance Fund Corp., 80 Md.App. 333 , 563 A.2d 1110 (1989). The Court of Appeals reversed our decision and reinstated the judgments that had been entered on the verdicts. Maryland Deposit Insurance Fund Corp. v. Billman, 321 Md. 3 , 580 A.2d 1044 (1990).

Seeking to obtain at least partial satisfaction of the judgments it had obtained against Billman and the other defendants, MDIF brought this action against appellee, American Casualty Co. of Reading, Pa. (American Casualty), to recover the proceeds of a Directors’ and Officers’ ⁶⁰⁰ Liability Insurance Policy that American Casualty had issued to Community. In that action the Circuit Court for Montgomery County (Kaplan, J.) entered summary judgments in favor of American Casualty against appellants, John D. Faulkner, Thomas J. Billman, and Roger Brickley. These three appeals, which have nothing in common except that they involve questions of coverage under the same policy issued by appellee, are from those summary judgments.

Background Faulkner Prior to trial in MDIF v. Billman, et al., appellant John D. Faulkner, a former president and board member of Community, executed a settlement agreement with MDIF in which he assigned to MDIF all claims he had against American Casualty arising under the policy coverage but retained the right to assert against American Casualty claims for additional damages for negligence or bad faith in the settlement process. Nevertheless, he agreed to dismiss any such action at the request of MDIF and Community if they believed that his prosecution of such claim would interfere with their recovery of funds from American Casualty. Thereafter, MDIF entered into a settlement agreement with American Casualty in which MDIF agreed to compel Faulkner to dismiss any future action he may bring as an insured of American Casualty. Faulkner subsequently attempted to bring such an action; however, the trial court, relying on the language of the MDIF-Faulkner settlement agreement, awarded summary judgment to American Casualty.

Arguing that summary judgment was inappropriate and that the court’s construction of the settlement agreement violates public policy, Faulkner noted this appeal. Perceiving no reversible error, we shall affirm that judgment. Billman Appellant Thomas J. Billman, a former officer and director of Community and a defendant in MDIF’s suit ⁶⁰¹ against American Casualty, filed a cross-claim against American Casualty, contending that he was entitled to insurance coverage to satisfy the judgment against him on Count I of the MDIF v. Billman, et al complaint. He also sought immediate payment of costs incurred in defending the action.

Finding that Count I of MDIF’s complaint alleged acts that are excluded from insurance coverage, the court awarded summary judgment to American Casualty. In this appeal from that judgment, Billman asserts that a genuine dispute of material facts exists, thus rendering summary judgment inappropriate. We agree and shall reverse the award of summary judgment as to coverage. We shall affirm, however, that part of the judgment which denied Billman’s request for immediate reimbursement of defense costs.

Brickley American Casualty filed a cross-claim in MDIF v. American Casualty, et al. As part of that cross-claim, brought against everyone who had brought an action against an officer or director of Community that could result in the insurer's liability under its insurance policy, American Casualty sought to establish an interpleader fund. Named as a defendant in that interpleader action was appellant Roger Brickley. As one of about 5,000 investors who had purchased units in a number of limited partnerships managed by Equity Programs Investment Corporation (EPIC), which was affiliated with Community, Brickley had instituted in the Federal District Court for the District of Maryland a class action against Billman and the other officers and directors of EPIC, who were defendants in MDIF v. Billman, et al., as well as against Community, its subsidiaries, and other related corporations. The trial court established an interpleader fund and set a deadline by which all claims against the funds were to be filed.

Brickley failed to file any claim against the fund. The trial court subsequently ruled that Brickley’s claims, as well as those of the class he represented, against the ⁶⁰² insurance fund were barred. Further, the court ruled that, assuming Brickley’s federal action is successful, no insurance coverage exists for the claims asserted in his complaint as a matter of law. Based on those rulings, the court granted American Casualty’s motion for summary judgment on the issue of insurance coverage and released the interpleader funds to MDIF.

Appealing from that summary judgment, Brickley asserts that the court’s rulings were premature. We shall affirm the summary judgment barring Brickley’s claim against the interpleader fund but reverse the judgment on the issue of insurance coverage. Additional facts relating to each of the appeals will be set forth in the discussions relating to those appeals. I The Faulkner Appeal On 17 May 1988, appellant John D. Faulkner (Faulkner) a former president and director of Community and a defendant in MDIF v. Billman, et al., as well as in MDIF v. American Casualty, et al., executed a settlement agreement with MDIF.

The relevant portions of the agreement provide as follows: 3(a) Except as specifically set forth below, Faulkner hereby assigns, transfers and conveys to MDIF and Community all of his rights, title, and interest in, to, and under the Insurance Policy for the payment of all covered losses that American Casualty is obligated to pay on his behalf. (b) Faulkner hereby retains, and does not assign, transfer or convey to MDIF and Community, any and all claims and causes of action that Faulkner may have against American Casualty beyond the limits of the Insurance Policy, with respect to American Casualty’s conduct, actions or inactions, including, but not limited to, his claim for attorneys’ fees, costs and expenses incurred in connection with the American Casualty Action, and any claim concerning American Casualty’s failure or refusal to fund the settlement proposal made by MDIF and ⁶⁰³ Community to dismiss its claims against Faulkner in exchange for payment of $4,500,000. (c) Faulkner shall bear the expense of the prosecution of any claims that he retains. Faulkner agrees that ho shall consult with counsel for MDIF and Community in his prosecution of any claims against American Casualty, and agrees that if prosecution of any such claim against American Casualty shall in the determination of MDIF and Community interfere with MDIF’s and Community’s recovery of any monies from American Casualty, then at MDIF’s and Community’s election, he shall either stay or dismiss such claims.

(Emphasis added.) In April 1989, MDIF and Community executed a settlement agreement with American Casualty, the relevant portion of which provides: 6(b) MDIF and Community, as assignees of Faulkner’s rights, if any, under the Insurance Policy: (1) hereby assign those rights to American Casualty; and (2) shall dismiss with prejudice and release all of the claims assigned by Faulkner to MDIF and Community. (c) MDIF and Community, pursuant to paragraph 3(c) of their Settlement Agreement with Faulkner (Exhibit D), have determined that the prosecution of any claims by-Faulkner against American Casualty would interfere with MDIF and Community’s ability to enter into this Agreement; accordingly, MDIF and Community shall cause Faulkner to dismiss and/or abandon any other claim he has brought or may bring against American Casualty. Thereafter, by a letter dated 8 September 1989, Faulkner advised the trial court of his intention to institute an action against American Casualty for its failure to negotiate in good faith with MDIF on his behalf. MDIF subsequently informed Faulkner that, pursuant to ¶ 3(c) of the Settlement Agreement between them, MDIF would require him to dismiss his bad faith claim against American Casualty.

On ⁶⁰⁴ 5 October 1989, American Casualty filed a Second Amendment by Interlineation to First Amended Cross-claim, in which it requested a declaratory judgment that Faulkner was precluded from pursuing any claim against it arising out of the insurance policy. American Casualty also filed a motion for summary judgment on that issue. The trial court granted American Casualty’s motion for summary judgment on 7 February 1990 and dismissed, with prejudice, each of Faulkner’s counterclaims. It is Faulkner’s contention that summary judgment was inappropriate because material facts concerning the scope and effect of the settlement agreement were in dispute.

He also asserts that the trial court’s construction of the agreement violates Maryland public policy. A. The MDIF-Faulkner Settlement Agreement Faulkner’s first contention is that summary judgment was inappropriate in light of a dispute as to the intentions of the parties at the time the agreement was executed. He further argues that the language of 11 3 of the agreement is ambiguous and that the court should have considered extrinsic evidence of his intent, pursuant to Insel v. Solomon, 63 Md.App. 384, 396 , 492 A.2d 963 (1985) and Della Ratta, Inc. v. Amer. B. Com.

Developers, 38 Md.App. 119, 130 , 380 A.2d 627 (1977). In ruling on a motion for summary judgment, a trial court must determine whether the pleadings, depositions, answers to interrogatories, admissions and affidavits on file show that there is no genuine dispute as to any material fact and whether the movant is entitled to judgment as a matter of law. Md. Rule 2-501(e). See also Finci v. American Casualty, 82 Md.App. 471, 478 , 572 A.2d 1092 (1990); Syme v. Marks Rentals, Inc., 70 Md.App. 235, 238 , 520 A.2d 1110 (1987).

In opposing American Casualty’s motion for summary judgment, Faulkner offered his affidavit, and that of his attorney, Howard Possick, in which they set forth their intentions in negotiating the settlement ⁶⁰⁵ agreement with MDIF. Specifically, they claim that ¶ 3(c) was only intended to apply to contemporaneous actions by Faulkner against American Casualty and that it was never contemplated that the agreement would apply to claims filed after the resolution of MDIF’s dispute with American Casualty. The affidavits, Faulkner argues, establish the existence of a genuine dispute concerning a material fact, thereby rendering summary judgment inappropriate. Foy v. Prudential Insurance Co., 316 Md. 418, 422 , 559 A.2d 371 (1989); Sheets v. Chepko, 83 Md.App. 44, 46 , 573 A.2d 413 (1990).

The trial court, however, found the agreement clear and unambiguous. Further, the court found that Faulkner knowingly and intelligently waived any claim against American Casualty by the clear language of the agreement which he signed. If MDIF decided or determined that it would injure them in their negotiations with American Casualty if Mr. Faulkner continued or proceeded with litigation against American Casualty, the determination was solely left in the hand of MDIF, their sole discretion. They did make that determination.

That determination was that Mr. Faulkner would not proceed with litigation against American Casualty. I am not talking about litigation while they were negotiating or litigation after they negotiated. I am talking about litigation. That means any litigation as the insured under the American Casualty policy.

There is absolutely no ambiguity in the language of the agreement. We agree with the trial court’s interpretation of the agreement and with its ruling. Faulkner attempts to create an ambiguity in the agreement by arguing, in essence, that it fails to reflect the true intentions of the parties. While the subjective intent of the parties at the time the agreement was executed may be the subject of a dispute, that dispute does not concern any material fact.

Maryland has long recognized the objective law of contracts, whereby contractual intent is determined in accordance with what a reasonable person in the position ⁶⁰⁶ of the parties at the time of the agreement would have intended by the language used. Herget v. Herget, 319 Md. 466, 470 , 573 A.2d 798 (1990); Aetna Cas. & Sur. v. Ins. Comm’r, 293 Md. 409, 420 , 445 A.2d 14 (1982); Holloway v. Faw, Casson & Co., 78 Md.App. 205, 246 , 552 A.2d 1311 (1989), modified, 319 Md. 324 , 572 A.2d 510 (1990). Further, where the language of an agreement is unambiguous, the subjective intentions of the parties become irrelevant.

As the Court of Appeals noted in General Motors Acceptance v. Daniels, 303 Md. 254, 261 , 492 A.2d 1306 (1985), “.. .the clear and unambiguous language of an agreement will not give away to what the parties thought that the agreement meant or intended it to mean.” In the case sub judice, had the parties truly intended to limit the scope of 11 3(c) to claims filed by Faulkner that were contemporaneous with MDIF’s action, the agreement could easily have been so worded as to express that intent clearly. It was not so worded, however, and the trial court properly rejected Faulkner’s attempt to circumscribe the clear language of the agreement. Faulkner contends that MDIF expanded the nature of the settlement agreement when it settled with American Casualty, agreeing to “dismiss with prejudice and release all of the claims assigned by Faulkner to MDIF and Community” and to “cause Faulkner to dismiss and/or abandon any other claim he has brought or may bring against American Casualty.” Since the language of U 3(c) of the settlement agreement provides that his claims may be dismissed or stayed if they are deemed to “interfere with MDIF’s and Community’s recovery of monies from American Casualty,” Faulkner argues that these provisions cannot apply to claims asserted subsequent to the MDIF-American Casualty settlement. The obvious flaw in Faulkner’s argument, however, lies in the language of U 6(c) of the agreement between MDIF and American Casualty, in which it is evident that the possibility of a future claim by Faulkner presented a substantial obstacle to the settlement of MDIF’s dispute with American Casualty.

Thus, in order to ⁶⁰⁷ obtain a settlement, MDIF had to remove that obstacle and agree to exercise its right, pursuant to ¶ 3(c) of the MDIFFaulkner settlement agreement, to require Faulkner to dismiss any claims he may bring against American Casualty. Faulkner is bound by the terms of the settlement agreement he executed; accordingly, the trial court’s decision to award summary judgment to American Casualty was proper. B. Public Policy Faulkner argues next that the trial court construed ¶ 3 of the settlement agreement as “tantamount to an unconditional assignment” of his claim for bad faith, in contravention of Maryland public policy. We disagree.

Faulkner clearly retained the right to assert a claim against American Casualty for bad faith in ¶ 3(b) of the settlement agreement with MDIF. In retaining that right, however, Faulkner agreed that he would stay or dismiss his prosecution of any such claims at the sole discretion of MDIF and Community. Although Faulkner contends that these provisions only apply where required as a matter of law and not as a result of settlement negotiations between MDIF and American Casualty, no such distinction is indicated by the clear and unambiguous language of the agreement. In addressing the public policy concerns raised by Faulkner, the trial court stated: I tried to understand why his signing that agreement would be a violation of public policy.

I just have not been able to ascertain just what the public policy is that it would violate. But I agree with Mr. Tone that if there is any public policy involved here, it is the public policy to encourage resolution of disputes by settlement or peaceable means rather than combative methods. There is no valid public policy claim on Mr. Faulkner’s part here. As the court has indicated, he is a sophisticated banker, and this was not just something that came out of the blue.

This case had been pending for a long time. He knew what he was getting out of when he signed the ⁶⁰⁸ agreement, which was favorable to him, because he was on the hook for a very substantial amount of money claimed by MDIF. If he wanted to spin the dice he could have done it, sat at the trial or not sat at the trial and just let it go and see what happens. He could have done it.

That was his option. We agree with the trial court that enforcement of the settlement agreement does not violate public policy. Throughout his public policy argument, Faulkner refers to if 3(c) of the settlement agreement as an impermissible attempt to effect an assignment of his claims for bad faith. He places significant emphasis on the Court of Appeals holding in Bean v. Allstate, 285 Md. 572 , 403 A.2d 793 (1979), that, generally, a claimant has no direct cause of action against an insurer for sums in excess of the policy limit, absent “explicit authorization.” Id. at 577 , 403 A.2d 793 .

In Bean , an injured claimant sued an insurer for bad faith in failing to settle the claim within policy limits, arguing that he was a third party beneficiary of the insurance contract. Rejecting that argument, the Court adopted the view that an insurer owes no duty to a claimant to settle a claim; such obligations run only to the insured. Id. at 574-75 , 403 A.2d 793 . Thus, Faulkner argues that he could not have assigned his right to sue American Casualty for bad faith without “explicit authorization.” See Bean v. Allstate, supra, 285 Md. at 577 , 403 A.2d 793 .

There are two basic fallacies in Faulkner’s argument. First, Bean v. Allstate precludes an injured claimant from suing the tortfeasor’s liability insurance carrier as a third party beneficiary of the insurance policy. It does not preclude the tortfeasor from asserting a claim against his own insurance carrier for bad faith or negligence in refusing or failing to settle the claim against him within policy limits. Nor does it preclude the tortfeasor from assigning his claim against his insurance carrier to a third person.

Second, as discussed supra, ¶ 3(c) does not reflect any intention to assign Faulkner’s claim for bad faith to MDIF. Rather, that claim was retained by Faulkner sub ⁶⁰⁹ ject to his agreement to dismiss the prosecution of that claim at the discretion of MDIF and Community. The trial court correctly observed that the only public policy raised by the terms of the settlement agreement is that which encourages the peaceful and efficient resolution of disputes. This policy was succinctly articulated in Chertkof v. Harry C. Weiskittel Co., 251 Md. 544, 550 , 248 A.2d 373 (1968), cert. denied, 394 U.S. 974 , 89 S.Ct. 1467 , 22 L.Ed.2d 754 (1969), in which the Court of Appeals stated that “Courts look with favor upon the compromise or settlement of lawsuits in the interest of efficient and economical administration of justice and the lessening of friction and acrimony.” C. Unconscionability and Duress Faulkner’s final assertion is that the settlement agreement, as construed by the trial court, is unconscionable and the product of duress.

In support of this contention, Faulkner reiterates his belief that ¶ 3(c) constitutes an impermissible assignment of his claims against American Casualty for bad faith and that his agreement to stay or dismiss such claims at MDIF’s request should only extend to actions that are contemporaneous with MDIF’s negotiations with American Casualty. We have already addressed these arguments supra. It is sufficient to note at this point that had the parties intended to limit the effect of the settlement agreement, as Faulkner contends he did, the agreement should have so provided. Significantly, Faulkner argues in his brief that: In short, if the intended objective of Section 3(c) was — - as the lower court found — to provide an election, at MDIF’s and Community’s sole discretion, of whether Faulkner could, in fact, actually exercise his expressly retained rights, the Agreement — contrary to its language — would have clearly provided for this result.

The agreement, however, does provide for this result in clear and unambiguous language. ⁶¹⁰ The doctrine of unconscionability is defined in § 208 of the Restatement (Second) of Contracts as follows: If a contract or term thereof is unconscionable at the time the contract is made a court may refuse to enforce the contract, or may enforce the remainder of the contract without the unconscionable term,' or may so limit the application of any unconscionable term as to avoid any unconscionable result. See Williams v. Williams, 306 Md. 332, 338 , 508 A.2d 985 (1986). The ability of a court to alter the terms of a contract, however, is not without limitation. Speaking for this Court in Martin v. Farber, 68 Md.App. 137, 144 , 510 A.2d 608 , cert. denied, 308 Md. 237 , 517 A.2d 1120 (1986), Chief Judge Gilbert noted ... the fairness of an agreement is to be determined as of the time it was made, not on the basis of conditions occurring subsequently.

Courts are not possessed of unbridled discretion to undo that which the parties fairly and voluntarily assumed, even if the agreement might be deemed imprudent. (Citation omitted.) With these principles in mind, we hold that the MDIFFaulkner settlement agreement is not unconscionable. As the trial court observed, Faulkner faced the prospect of substantial personal liability at the time he executed the agreement. The agreement removed that prospect and provided for the payment of Faulkner’s attorney’s fees from proceeds recovered by MDIF for covered losses.

Viewed in this light, the agreement is not only clear and unambiguous, but fair and reasonable. Finally, Faulkner attempts to avoid enforcement of the settlement agreement by asserting that he executed the agreement under duress. In Meredith v. Talbot County, 80 Md.App. 174, 183 , 560 A.2d 599 (1989), we stated: [djuress is essentially composed of the following two elements: (1) A wrongful act or threat by the opposite party to the transaction or by a third party of which the opposite party is aware and takes advantage, and (2) a state of mind in which the complaining party was over ⁶¹¹ whelmed by fear and precluded from using free will or judgment. Faulkner does not assert that MDIF committed any wrongful acts or that it was aware and took advantage of any wrongful acts perpetrated by American Casualty.

Moreover, the basis of Faulkner’s claim of duress is his assertion that the pending litigation adversely affected his emotional well-being; however, Faulkner has failed to establish any wrongful acts that deprived him of his free will at the time he executed the agreement. Anxiety arising from a pending civil action cannot, by itself, constitute duress sufficient to avoid enforcement of a settlement agreement. To hold otherwise would do violence to the policy of encouraging the fair and reasonable settlement of disputes. We hold, therefore, that the trial court properly enforced the MDIFFaulkner settlement agreement in accordance with its clear and unambiguous terms.

Accordingly, we affirm the award of summary judgment to American Casualty. II The Billman Appeal Appellant Thomas J. Billman, a former officer and director of Community, filed a cross-claim against American Casualty in which he asserted that he was entitled to insurance coverage to satisfy the judgment against him on Count I of MDIF’s complaint in MDIF v. Billman, et al., and for costs incurred in defending the action. American Casualty, arguing that it was not required to provide coverage to Billman for any of the six counts alleged in the complaint, filed a motion for summary judgment. On 5 April 1989, the trial court awarded summary judgment to American Casualty on Counts II through YI.

There is no challenge to the propriety of that ruling. Summary judgment was denied on Count I after MDIF opposed the motion, arguing that the conduct alleged by it against Billman in Count I was covered by the insurance policy and not fraudulent or otherwise excluded by policy provisions. American Casualty subsequently agreed to pay MDIF approximately $16 million in settlement of the action. There ⁶¹² after, American Casualty filed a motion for reconsideration of the denial of summary judgment on Count I, which was opposed by Billman but, of course, not MDIF.

On 3 May 1989, the court granted the motion for reconsideration and entered summary judgment against Billman on Count I, whereupon Billman noted this appeal. A. Summary Judgment Billman contends that summary judgment on the issue of American Casualty’s obligation to provide insurance coverage for the Count I verdict was inappropriate. 1 Count I alleged that the defendants in MDIF v. Billman, et al. breached their fiduciary duties of care and loyalty, as officers and directors of Community and that loans made by Community to Equity Programs Investment Corp. (EPIC), a wholly-owned subsidiary of Community, “inured to the personal benefit of defendants Billman and McCuistion.” On this Count, the jury returned a verdict against the defendants for $49,255,381 in compensatory damages. The insurance policy issued by American Casualty provided that coverage would extend to any “loss” for which the directors and officers, or any one of them, were legally obligated to pay as a result of a claim for a “wrongful act.” The term “loss” is defined in ¶ 1(d) of the policy as including damages, judgments, settlements, costs and defense of legal actions, claims or proceedings and appeals therefrom, excluding matters deemed uninsurable under the law. The term “wrongful act” is defined in ¶ 1(e) of the policy as any actual or alleged error, misstatement, misleading statement, act of omission or neglect or breach of duty by ⁶¹³ the Directors or Officers in the discharge of their duties solely in their capacity as Directors or Officers of the Association, individually or collectively, or any matter claimed against them solely by reason of their being Directors or Officers of the Association.

Paragraph 3(a)(2) of the policy provides that coverage does not extend to any loss resulting from a claim made against the Directors or Officers “based upon or attributable to their gaining in fact of any personal profit or advantage to which they were not legally entitled.” In support of its argument that summary judgment was properly entered, American Casualty relies extensively on the pleadings and arguments advanced in MDIF v. Billman, et al. American Casualty contends that the actions alleged in Count I of MDIF’s complaint, and the judgment entered thereon, establish that Billman personally received profits to which he was not legally entitled, thus activating the terms of the exclusionary language of ¶ 3(a)(2) of the policy. This contention implicitly raises the issue of res judicata. As Judge Wilner, writing for this Court in Klein v. Whitehead, 40 Md.App. 1 , 389 A.2d 374 , cert. denied, 283 Md. 734 (1978), explained, both res judicata and collateral estoppel are branches of a doctrine known as estoppel by judgment, res judicata being a direct estoppel and collateral estoppel being precisely what its name declares it to be. Although the requirement that there be an identity of parties, before estoppel by judgment may be asserted, has been somewhat relaxed, see M.P.C., Inc. v. Kenny, 279 Md. 29 , 367 A.2d 486 (1977); Pat Perusse Realty v. Lingo, 249 Md. 33 , 238 A.2d 100 (1968), we need not resolve this issue.

The obvious obstacle to American Casualty’s successful use of estoppel by judgment, whether res judicata, or collateral estoppel, in the case sub judice is the fact that the critical issue upon which the court’s summary judgment ruling was based was never established in MDIF v. Billman, et al. ⁶¹⁴ Count I of MDIF’s complaint is entitled “Unlawful Loans to the EPIC Entities”; however, the allegations contained in Count I refer only to breach of fiduciary duties and actions that inured to the personal benefit of Billman. No allegation is made in Count I of MDIF’s complaint that Billman acted fraudulently or received personal profits “to which he was not legally entitled.” Indeed, in response to interrogatories propounded by American Casualty, MDIF stated that it did not claim that any officer or director of Community acted dishonestly or fraudulently. Thus, the doctrine of estoppel by judgment cannot support the trial court’s ruling. Md.Rule 2-501(a) permits any party to file “at any time a motion for summary judgment on all or part of an action on the ground that there is no genuine dispute as to any material fact and that the party is entitled to judgment as a matter of law.” In reviewing the law of summary judgment in another savings and loan case, Judge Wenner, writing for this Court in Finci v. American Casualty, 82 Md.App. 471 , 572 A.2d 1092 (1990), observed: The summary judgment proceeding is not a substitute for a trial; rather, it is a proceeding to determine whether a trial is required to resolve a factual controversy.

Foy v. Prudential Insurance Co., 316 Md. 418, 422 , 559 A.2d 371 (1989). Once the moving party establishes sufficient grounds for summary judgment, the party opposing the motion must show “with some precision” that there exists a genuine dispute as to a material fact. See Foy, supra, 316 Md. at 422 , 559 A.2d 371 . Maryland courts have defined a “material fact” as “a fact the resolution of which will somehow affect the outcome of the case.” King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608 (1985).

If the facts are susceptible to more than one inference, all inferences must be resolved against the moving party. Id. See also Syme v. Marks Rentals, Inc., 70 Md.App. 235, 239 , 520 A.2d 1110 (1987). Moreover, where several ⁶¹⁵ inferences may be drawn, summary judgment is not proper, but rather, the dispute must be submitted to the trier of fact.

King, supra, 303 Md. at 111, 492 A.2d 608 . See also Foy, supra, 316 Md. at 422-23 , 559 A.2d 371 . 82 Md.App. at 478 , 572 A.2d 1092 . In the case sub judice, for summary judgment to have been appropriate American Casualty was obligated to show that, based upon the undisputed material facts, insurance coverage did not extend to the Count I judgment because of the “personal profit” exclusion in the policy. The record before the trial court did not establish this; rather, as outlined supra, the record revealed a genuine dispute between Billman and American Casualty on the central issue of insurance coverage.

While American Casualty is certainly free to use the arguments advanced in MDIF v. Billman, et al. to support its position that Billman’s conduct fell within the exclusion of coverage provisions of the policy, inasmuch as Billman disputes this position and in the absence of any judgment establishing this as a fact, there is no basis in the record to support the granting of summary judgment. The allegations of Count I set forth various breaches of fiduciary duties which are precisely the type of wrongful acts for which the insurance policy provides coverage. The absence