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STEIN MART, INC., § CASE NO.: 3:20-Bk-02387 § DEBTOR

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STEIN MART, INC., § CASE NO.: 3:20-Bk-02387 § DEBTOR Case 3:20-bk-02387-JAF Doc 943 Filed 03/05/21 Page 1 of 8 IN THE UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION In Re: § § STEIN MART, INC., § CASE NO.: 3:20-bk-02387 § DEBTOR. § CHAPTER 11 § AMENDED MOTION FOR RELIEF FROM THE AUTOMATIC STAY TO PERMIT CIVIL LITIGATION TO PROCEED John Pennell, (“Movant” or “Pennell”) by and through his attorneys, hereby seeks relief from the automatic stay pursuant to 11 U. S. C. § 362(d)(1) and 28 U.S.C. §1334(c) to permit him to continue litigating his claims against Debtor, Stein Mart, Inc. (“Debtor” or “Stein Mart”), in Case No. 16-2013-CA-001253-XXXX-MA (the “State Court Action”) pending in the Circuit Court Of The Fourth Judicial Circuit In And For Duval County, Florida in order to liquidate his claim and to collect insurance proceeds. In support of his motion, Pennell would show the Court as follows: INTRODUCTION 1. Pennell was employed by Debtor in March 2001 and from October 2006 until January 27, 2011 served as Debtor’s Senior Vice President and General Merchandise Manager. 2. On February 1, 2013 Pennell filed his State Court Action alleging, causes of action for age discrimination prohibited by the Florida Civil Rights Act of 1992, Florida Statues 760.01 et seq., and breach of contract, fraud, and defamation. A copy of the Complaint in the State Court Action is attached hereto as Exhibit A. 3. As described below, Debtor has insurance that covers Pennell’s wrongful employment practices claims. The affidavit of Anne King, a Claims Consultant at CNA Insurance, recently produced by Debtor, indicates that the Debtor is covered by Continental Casualty Case 3:20-bk-02387-JAF Doc 943 Filed 03/05/21 Page 2 of 8 Company Employment Practices Liability Solutions Policy number 425168706 (the “EPL Policy”) with a $10 million aggregate limit of liability inclusive of defense costs and Excess Insurance Policy number 4225166485 (the “Excess Policy”) with a $10 million aggregate limit of liability excess of $20 million. See Exhibit B attached hereto. 4. Movant hereby seeks relief from the automatic stay to permit him to pursue his wrongful employment practices claims in the State Court Action and to proceed against the insurance funds for satisfaction of those claims. Movant’s claims that are covered by the insurance policies referenced above are in the approximate amount of $7 million and therefore are capable of being satisfied within the policy limits of the Debtor’s insurance policies. 5. Separate from the wrongful employment practices claims, Movant has contract claims that are not covered by the insurance policy. See, Exhibit B, p. 30/34 (Employment Contract Exclusion Endorsement). These contract claims should remain before the Bankruptcy Court pursuant to Pennell’s timely filed Proof of Claim 2862 as amended by Claim No. 3073.1 6. The insurance policies at issue are limited to wrongful employment practices claims and the funds are not otherwise recoverable by other creditors. Therefore, lifting the stay will not create any prejudice to the Debtor or to other creditors. In fact, granting Pennell relief from the stay would benefit other unsecured creditors by removing a significant amount of Pennell’s claims from the bankruptcy proceedings and eliminating the cost of defending those claims in the bankruptcy proceeding. ADDITIONAL TERMS OF THE EPL POLICY 7. Although the EPL Policy has a stated self-insured retention amount of $250,000 1 Debtor has filed Objections to Pennell’s Amended Claim #3073. A separate response to the Objections will be filed. Pennell herein addresses only lifting the stay with regard to his wrongful employment practices claims. Case 3:20-bk-02387-JAF Doc 943 Filed 03/05/21 Page 3 of 8 (Exhibit B, p. 5/34 Item 7), the policy was amended to waive the retention due to financial insolvency of the insured. Exhibit B, p. 24/34 (Financial Insolvency And Waiver Of Retention Endorsement, Endorsement No. 5) which states: 1. Section II. DEFINITIONS, is amended to add the following new definition: Financial Insolvency means, with respect to the Insured Entity: 1. the appointment of a receiver, conservator, liquidator, trustee, rehabilitation or similar official to take control of, supervise, manage or liquidate such Insured Entity; or such Insured Entity becoming a debtor in possession; and 2. the inability of such Insured Entity financially or under applicable law to advance Defense Costs or indemnify the Insured Persons for Loss. 2. Section IV. LIMITS OF LIABILITY/RETENTION paragraph 2. Retention, is amended to add the following at the end of the paragraph: However, the Insurer shall waive the Retention for any Claim made against an Insured Person where a court of law has held that the Insured Entity is restricted from paying the applicable retention due to Financial Insolvency. This provision shall not reduce the retention applicable to any Claim made against the Insured Entity or any successor, trustee or representative of the Insured Entity. Any waiver of the applicable retention pursuant to this paragraph shall reduce the limit of liability as stated in Item 6 of the Declarations by the amount of the applicable retention. 8. Under this waiver, the retention payment is waived in favor of reducing the limit of liability by the amount of the retention.2 Additionally, the policy specifically states that “Bankruptcy or insolvency of any Insured Entity or any Insured Person shall not relieve the Insurer of any of its obligations hereunder.” Exhibit B, p. 18/34, Section XXIII. 9. Under the terms of the EPL Policy (Exhibit B, p. 13/34, Section V. 4), the insurer and insured could agree to allocate defense costs between covered and non-covered costs with the obligation remaining upon the insurer to pay all covered defense costs. In as much as Pennell is only asking that the stay be lifted for the covered wrongful employment practices claims, all 2 This provision is similar to one addressed by this Court in the Order Granting Shari Mackey Limited Relief From Stay. (In re Stein Mart, Doc.794). Case 3:20-bk-02387-JAF Doc 943 Filed 03/05/21 Page 4 of 8 costs of defense once the stay is lifted for the wrongful employment practices claims must be borne by the insurer and therefore no adverse impact will occur to the bankruptcy estate. 10. As evidenced by the affidavit of Anne King, Exhibit B, p. 1-2, pursuant to the EPL Policy, the insurer has already undertaken its duty to defend in the State Court Action. Upon information and belief, the insurer hired and/or approved the hiring of Richard Margulies Esq. of Jackson Lewis P.C. as defense counsel in the State Court Action. ARGUMENT AND AUTHORITIES A. Cause Exists To Grant Relief From the Stay 11. Section 362(d) of the Bankruptcy Code provides that a court may modify the automatic stay for “cause.” In re Ellingsworth Residential Cmty. Ass’n Inc. 2020 WL 6893154, at *2 (Bankr. M.D. Fla. Oct. 16, 2020). 12. As this Court has recently held: “Cause is not defined in the Bankruptcy Code, so courts consider the totality of the circumstances to determine cause.” Ellingsworth Residential, 2020 WL 6803154, at *2. “There [is] no set of circumstances that bankruptcy courts must consider when evaluating cause under § 362(d)(1).” Id. “Generally, courts ‘have looked to a variety of case-specific factors, including (1) whether the [Debtors have] acted in bad faith; (2) the ‘hardships imposed on the parties with an eye towards the overall goals of the Bankruptcy Code’; and (3) pending state court proceedings.” Id. (bracketing in original). “The Court also may consider ‘the proportionality of the harms from modifying or continuing the stay’ by balancing the prejudice to the debtor against the hardship to the non-debtor movant and overall judicial economy.” Id. In sum, “the determination of whether to grant relief from the stay based on cause is a discretionary one which is made on a case by case basis.” Jones, 2019 WL 2707717, at *3. (In re Stein Mart, Inc. Doc. 794 in which the Court granted relief from the stay to allow Movant to continue litigating in state court against insurance proceeds). 13. As the party requesting modification of the stay, Pennell has the initial burden of establishing a prima facie case that cause exists to modify the stay. The burden then shifts to Debtor to prove its entitlement to the continued protections of the stay. In re Jones, 2019 WL 2707717, at Case 3:20-bk-02387-JAF Doc 943 Filed 03/05/21 Page 5 of 8 *3 (Bank. M. D. Fla. June 27, 2019). 14. As the legislative history of §362 shows, “it will often be more appropriate to permit proceedings to continue in their place of origin, when no great prejudice to the bankruptcy estate would result, in order to leave the parties to their chosen forum and to relieve the bankruptcy court from any duties that may be handled elsewhere.” In re Morgan, 2010 WL 1416991 at *4 (Bank. S. D. Fla. [Miami Div.] April 7, 2010); In re Emerald Cove Villas, LLC, 2007 Bankr. LEXIS 864 at *8 (Bank. M. D. Fla. March 2, 2007)(citing Senate Report No. 989, 95th Cong. 2d Sess., 50 (1978)). 15. Lifting the stay is appropriate where Pennell seeks to reduce his claim to judgment and seeks recovery from available insurance coverage. See, Matter of Fernstrom Storage & Van Co., 938 F.2d 731,736 (7th Cir. 1991)(debtors suffer little prejudice when sued by plaintiffs who seek nothing more than declaration of liability that can serve as a predicate for a recovery against insurers, sureties, or guarantors); In re W.G.Wade Shows, Inc., 234 B.R.185 at *8 (Bankr.
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