Carrollton Bank v. Fujitsu Transaction Solutions, Inc. , 56 F. App'x 603 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CARROLLTON BANK, a Maryland 
Corporation,
Plaintiff-Appellee,
v.
FUJITSU TRANSACTION SOLUTIONS,
INCORPORATED,  No. 02-1334
Defendant-Appellant,
and
FUJITSU-ICL SYSTEMS, INCORPORATED,
a Delaware Corporation,
Defendant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(CA-01-1814-AMD)
Argued: December 6, 2002
Decided: January 23, 2003
Before NIEMEYER and WILLIAMS, Circuit Judges, and
Henry M. HERLONG, Jr., United States District Judge for the
District of South Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Gaele McLaughlin Barthold, COZEN O’CONNOR, Phil-
adelphia, Pennsylvania, for Appellant. Glenn Ephraim Bushel, BRO-
2 CARROLLTON BANK v. FUJITSU TRANSACTION SOLUTIONS
CATO, PRICE & BUSHEL, P.A., Baltimore, Maryland, for Appellee.
ON BRIEF: John F. Mullen, COZEN O’CONNOR, Philadelphia,
Pennsylvania, for Appellant. David M. Wyand, BROCATO, PRICE
& BUSHEL, P.A., Baltimore, Maryland; Robert J. Parsons, II, ROG-
ERS, MOORE & ROGERS, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Carrollton Bank commenced this breach-of-contract action against
Fujitsu Transaction Solutions, Inc., over Fujitsu’s refusal to pay for
funds missing from Carrollton Bank’s automatic teller machines that
were serviced by Fujitsu. The district court granted summary judg-
ment in favor of Carrollton Bank, holding that the plain language of
the contract created Fujitsu’s liability, and we affirm.
I
On October 27, 1998, Carrollton Bank entered into a contract with
Fujitsu Transaction Solutions, Inc. ("Fujitsu" or "FJ-ICL"), which
provided that Carrollton Bank would purchase automatic teller
machines ("ATMs") from Fujitsu and that Fujitsu would install them
in various Wal-Mart stores in the mid-Atlantic region and provide ser-
vices and equipment to the ATMs. Two months later, by amendment
to the contract, the parties agreed that Fujitsu would provide cash
replenishment services to the machines. The contract as amended
stated that Fujitsu would provide these services through "[its] subcon-
tractor, Tri-State Armored Services, Inc." ("Tri-State"). The cash
replenishment services consisted of removing depleted cassettes of
cash from the machines on a weekly basis and replacing them with
ones filled with cash transferred to Fujitsu by wire transfers. Also,
Fujitsu agreed to wire back to Carrollton Bank any cash remaining in
the removed cassettes.
CARROLLTON BANK v. FUJITSU TRANSACTION SOLUTIONS 3
The contract allocated losses from the case replenishment services
as follows:
7.1 FJ-ICL shall be responsible for payment of ATM
losses if the ATM monitoring system and/or Customer’s
security alarm records show, or the preponderance of the
evidence relating to the loss shows, that (i) employees,
agents, subcontractors or any third person authorized by FJ-
ICL had access to the ATM vault since that ATM was last
balanced and that (ii) there is no credible evidence establish-
ing that the loss resulted from mechanical, software, or net-
work failure or the act, omission or dishonesty of third
persons not aided or abetted by FJ-ICL. CUSTOMER
AGREES THAT FJ-ICL IS NOT TAKING ON THE OBLI-
GATION OF ABSOLUTE INSURER IN THE PERFOR-
MANCE OF THIS AGREEMENT.
7.2 FJ-ICL shall not be liable for claims, actions, damages,
liabilities, losses and expenses, arising out of or in connec-
tion with any ATM loss to the extent such claim is the result
of (a) currency dispensed due to AMT [sic] software or net-
work malfunction; (b) Nominal Losses [loss less than or
equal to $100]; (c) access by third persons not authorized by
FJ-ICL; or (d) damages from breakage or vandalism.
The contract also contained a "Force Majeure" clause as follows:
FJ-ICL will not be liable for any delay or for failure to per-
form its obligations hereunder resulting from any cause
beyond FJ-ICL’s reasonable control, including, but not lim-
ited to: Customer’s failure to timely supply FJ-ICL with
necessary data, information or specifications if in fact Cus-
tomer has agreed to supply any such data, information or
specifications to FJ-ICL; any such changes in any such data,
information or specifications made by Customer; acts of
God; weather; fire; explosions; floods; strikes; work stop-
pages; slowdowns or other industrial disputes; accidents;
riots or civil disturbances; dangerous conditions which pre-
sent a threat to the safety of FJ-ICL personnel; acts of gov-
ernment; inability to obtain any license or consent necessary
4 CARROLLTON BANK v. FUJITSU TRANSACTION SOLUTIONS
in respect of any unit of Equipment; and delays by suppliers
or material shortages. Scheduled performance dates shall be
extended by any such causes.
In February 2001, Carrollton Bank discovered several discrepan-
cies in the ATM funds. Specifically, on February 15, 16, 20, and 21,
a total of $472,480, which consisted of both replenishment funds
meant for the ATMs and residual funds meant for Carrollton Bank,
was unaccounted for. Carrollton Bank informed Fujitsu of the missing
funds, and the two parties entered negotiations about Fujitsu’s respon-
sibility for the loss. Concurrent with these negotiations, Tri-State,
Fujitsu’s subcontractor, filed a petition in bankruptcy, and several Tri-
State executives pleaded guilty to stealing millions of dollars from
several of its customer banks, including the missing funds of Carroll-
ton Bank. When the parties were unable to reach agreement over
responsibility for the losses, Carrollton Bank commenced this action
for breach of contract. Carrollton Bank alleged that the contract
required Fujitsu to reimburse Carrollton Bank for the lost funds.
On cross-motions for summary judgment, the district court con-
cluded that the contract unambiguously required Fujitsu to pay Car-
rollton Bank for the lost funds and entered judgment in favor of
Carrollton Bank in the amount of $515,820.95 for the lost funds and
prejudgment interest. Fujitsu timely appealed.
II
New York contract law, which the parties agree governs the pres-
ent dispute, adheres to the well-established and unremarkable princi-
ple that "when parties set down their agreement in a clear, complete
document, their writing should as a rule be enforced according to its
terms." W.W.W. Assocs., Inc. v. Giancontieri, 566 N.E.2d 639, 642
(N.Y. 1990).
Under the contract, Fujitsu clearly undertook to provide cash
replenishment services to Carrollton Bank’s ATMs. It agreed to
remove cash-depleted cassettes from the ATMs and to replace them
with replenished ones, with the cash supplied by Carrollton Bank.
Moreover, it agreed to be responsible for losses in this process, except
when the losses resulted from specified reasons not here applicable.
CARROLLTON BANK v. FUJITSU TRANSACTION SOLUTIONS 5
The district court correctly relied on these contractual provisions to
find Fujitsu liable for the losses.
Contending that the district court erred, Fujitsu argues that the
"Force Majeure" clause excuses it from liability. In relevant part, the
clause states that Fujitsu "will not be liable for any delay or for failure
to perform its obligations hereunder resulting from any cause beyond
[Fujitsu]’s reasonable control, including, but not limited to [certain
identified events]." Fujitsu argues that the language of "any cause
beyond [its] reasonable control" applies to the loss of funds arising
from Tri-State’s illegal conduct and thus that Fujitsu is not liable.
New York law, however, requires a narrow interpretation of force
majeure clauses. See Kel Kim Corp. v. Central Markets, Inc., 519
N.E.2d 295 (N.Y. 1987). "The principle of interpretation applicable
to such clauses is that the general words are not to be given expansive
meaning; they are confined to things of the same kind or nature as the
particular matters mentioned." Id. at 296-97. Although the clause
specifies that the list "includ[es], but [is] not limited to" those events
identified, the list nevertheless only addresses certain types of events,
such as natural disasters, acts by Carrollton Bank, and other events
similarly beyond the control of Fujitsu. Theft by a subcontractor —
being within the principal contractor’s control — is materially differ-
ent from those events, and we thus decline to adopt Fujitsu’s expan-
sive interpretation of the clause.
Fujitsu also argues that it is not responsible because of the doctrine
of impossibility. The doctrine, narrow in scope, excuses a party from
liability where "the means of performance makes performance objec-
tively impossible." Id. at 296. The doctrine, however, does not apply
where the party could have foreseen and guarded against its ensuing
liability. Id. To guard against an obligation to pay for loss caused by
Tri-State, Fujitsu could have negotiated different terms with Carroll-
ton Bank or contracted separately with Tri-State regarding the burden
of loss.
Fujitsu also argues that the "Allocation of Liability" clause relieves
it of liability. The provision states in relevant part:
7.1 FJ-ICL shall be responsible for payment of ATM
losses if . . . (i) employees, agents, subcontractors or any
6 CARROLLTON BANK v. FUJITSU TRANSACTION SOLUTIONS
third person authorized by FJ-ICL had access to the ATM
vault since that ATM was last balanced and that (ii) there is
no credible evidence establishing that the loss resulted from
. . . the act, omission or dishonesty of third persons not aided
or abetted by FJ-ICL. CUSTOMER AGREES THAT FJ-
ICL IS NOT TAKING ON THE OBLIGATION OF ABSO-
LUTE INSURER IN THE PERFORMANCE OF THIS
AGREEMENT.
7.2 FJ-ICL shall not be liable for claims . . . arising out of
. . . any ATM loss to the extent such claim is the result of
. . . access by third persons not authorized by FJ-ICL.
Fujitsu contends that Tri-State was a "third person" neither aided or
abetted by Fujitsu nor authorized by Fujitsu to retain Carrollton
Bank’s funds and thus that sections 7.1 and 7.2 shield it from liability.
It also argues that the clause’s declaration that Fujitsu is not an "abso-
lute insurer" of the contract confirms its lack of liability in this case.
Finally, it argues that, at the least, there exists a factual dispute
regarding whether the loss at issue was an "ATM loss" within the
meaning of the clause.
We conclude that Fujitsu’s interpretation of the clause lacks merit.
The language of the clause unambiguously triggers Fujitsu’s liability
for losses in connection with replenishment of the ATMs. Moreover,
when reading the clause in context, it is clear that the parties antici-
pated losses related to the replenishment services by outlining a
mechanism for the services, the procedure for determining any dis-
crepancies resulting from those services, and, if indeed there is a loss,
the allocation of that loss. As the third step in that outline, section
7.1(i) places liability on Fujitsu where loss occurred as a result of
replenishment services by Fujitsu or its subcontractor. Given that the
loss at issue here arose from replenishment services, Fujitsu bears the
burden of liability.
Fujitsu is not saved by the exclusion from liability, in sections
7.1(ii) and 7.2, of acts by third persons. Because both "subcontractor"
and "third person" are used in 7.1(i), the use of only the latter term
in 7.1(ii) and in 7.2 compels the conclusion that the acts of "subcon-
tractors" are not covered in those provisions excusing Fujitsu from
CARROLLTON BANK v. FUJITSU TRANSACTION SOLUTIONS 7
liability for the acts of "third persons." Tri-State, identified in the con-
tract as Fujitsu’s subcontractor, is thus not a "third person" within the
meaning of the clause, and sections 7.1(ii) and 7.2 do not shield
Fujitsu from liability for Tri-State’s acts. In addition, the statement in
section 7.1 that Fujitsu is not an "absolute insurer" does nothing to
lessen Fujitsu’s obligation to reimburse Carrollton Bank. It merely
confirms that there are certain circumstances in which Fujitsu would
not be liable — namely those identified in sections 7.1(ii) and 7.2.
Finally, because the loss arose as a result of Fujitsu’s replenishment
services to the ATMs, the loss is an "ATM loss" and the "Allocation
of Liability" provision clearly applies.
Finally, Fujitsu argues that factual disputes exist concerning
(1) whether Tri-State was indeed Fujitsu’s subcontractor, (2) whether
Fujitsu had a nondelegable duty to Carrollton Bank, and (3) whether
the criminal nature of Tri-State’s conduct excuses Fujitsu from liabil-
ity. We have reviewed the record and find no genuine disputes as to
these factual issues. The contract identifies Tri-State as Fujitsu’s sub-
contractor; Fujitsu had a nondelegable contractual duty to replenish
the ATMs according to the parties’ agreement, see County of Sullivan
v. New York, 517 N.Y.S.2d 671, 674-75 (N.Y. Ct. Cl. 1987) ("A con-
tractual duty is one type of nondelegable duty. . . ."); and the parties
did not create an exception for the criminal conduct of a subcontrac-
tor. Fujitsu’s reliance on Babylon Associates v. County of Suffolk, 475
N.Y.S.2d 869 (N.Y. App. Div. 1984), for the proposition that inter-
pretation of the contract merits a trial, is misplaced because the agree-
ment between Carrollton Bank and Fujitsu contractually obligates
Fujitsu to reimburse Carrollton Bank for the losses associated with
cash replenishment services. As a result, the contract controls and
Babylon’s discussion of liability for criminal acts of subcontractors,
under the contract at issue in that case, is irrelevant.
In sum, we affirm the summary judgment entered by the district
court in favor of Carrollton Bank.
AFFIRMED