Jordan E. Lubin v. Cincinnati Insurance Company

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEB 7, 2012
No. 11-10231 JOHN LEY
________________________ CLERK
D.C. Docket No. 1:09-cv-02985-RWS
JORDAN E. LUBIN,
Chapter 7 Trustee,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Cross Claimant - Appellant,
FEDERAL DEPOSIT INSURANCE CORPORATION,
as receiver for Integrity Bank of Alpharetta, Georgia,
lllllllllllllllllllllllllllllllllllllllll Intervenor Plaintiff - Cross Defendant - Appellee,
versus
CINCINNATI INSURANCE COMPANY,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(February 7, 2012)
Before MARTIN, HILL and EBEL,* Circuit Judges.
PER CURIAM:
Integrity Bancshares, Inc. (“Bancshares”) and its wholly owned subsidiary,
Integrity Bank (“Bank”), were both named insureds of a financial institution bond
that offered, among other things, fidelity insurance.1 In November 2007, the Bank
submitted a proof of loss to the insurer, Cincinnati Insurance Co. (“Cincinnati”),
stating that “[it] has sustained a loss resulting directly from dishonest or fraudulent
acts of certain employees of [the Bank].” In August 2008, Cincinnati denied the
insurance claim. Later that month, the Bank was closed, and the FDIC took over
as receiver. Bancshares then filed for Chapter 7 bankruptcy, and Jordan Lubin
was appointed bankruptcy trustee.
This case began when Mr. Lubin (“Trustee”) filed suit against Cincinnati,
seeking to recover under the fidelity bond. The FDIC intervened, taking the
position that as the receiver for the Bank, it has the exclusive right to pursue that
breach-of-contract claim. The district court agreed with the FDIC and dismissed
the Trustee’s claims. On appeal, the Trustee argues that the district court erred in
*
Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit, sitting by
designation.
1
Bancshares was the only named insured when the Bond was issued. The district court
reformed the Bond to name the Bank as an insured as well. The parties do not contest that
decision on appeal.
2
holding that he does not have the right to pursue the breach-of-contract claim
After careful review, we affirm.
The Trustee argues that the Bond insured Bancshares “against a loss
regardless of which insured’s employees . . . caused the loss.” In support of his
position, the Trustee points to Insuring Agreement A of the Bond. Under that
provision, Cincinnati agreed to “indemnify the Insured” for “[l]oss directly
resulting from dishonest or fraudulent acts of an Employee committed alone or in
collusion with others.” (Emphasis added.) The Bond defines the term “dishonest
or fraudulent acts” as including those that are “committed by such Employee with
the manifest intent . . . to cause the Insured to sustain such loss.” (Emphasis
added.) The Bond defines the term “Employee” as including “an officer or other
employee of the Insured.” (Emphasis added.)
The Trustee’s argument does not convince us because it conflicts with the
plain language of Insuring Agreement A. The word “the” is used to “indicate that
a following noun . . . is a unique or a particular member of its class.” Merriam-
Webster’s Collegiate Dictionary 1217 (10th ed. 2000). Thus, under the Bond, an
insured is covered for losses caused by its own employees, and not that of another
insured. In other words, the Bond insures Bancshares against a loss caused by its
own employees, and not those of the Bank. The November 2007 proof of loss
3
contains only a claim that employees of the Bank (and not Bancshares) engaged in
misconduct and that this caused the Bank (and not Bancshares) to sustain a loss.2
Thus, it was the Bank, and not Bancshares, that had the right to bring the breach-
of-contract claim premised on that proof of loss. See O.C.G.A. § 9-2-20(a) (“As a
general rule, an action on a contract [must] be brought in the name of the party in
whom the legal interest in the contract is vested . . . .”).3
The Trustee resists this conclusion, arguing that this understanding of
Insuring Agreement A would deprive Bancshares of coverage. This is far from the
case, however: Bancshares had fidelity insurance for the conduct of its own
employees. The Trustee also stresses that this view of Insuring Agreement A
would conflict with the intention of the parties, who sought to protect the financial
interests of Bancshares as the holding company of the Bank. This argument also
fails. When the plain language of an insurance contract is clear and unambiguous,
it alone establishes the intentions of the parties. Boardman Petroleum, Inc. v.
2
The Trustee’s complaint alleges that one of the employees was employed by both the
Bank and Bancshares and that he committed the dishonest or fraudulent acts in both capacities.
The proof of loss in this record, however, refers only to employees of the Bank. It does not refer
in any way to Bancshares. The Trustee has not disputed the authenticity of the proof of loss.
3
Because we conclude that Cincinnati’s promise to cover losses caused by employee
misconduct runs to the insured whose employees are at issue, and not to any other named
insured, we do not address the Trustee’s argument regarding the scope of Exclusion W under the
Bond, which was a focus of the district court’s analysis.
4
Federated Mut. Ins. Co., 498 S.E.2d 492, 494 (Ga. 1998).
Finally, the Trustee argues that the joint insured clause of the Bond gave
Bancshares a right of action. That clause states in part: “If two or more Insureds
are covered under this bond, the first named Insured shall act for all insureds.
Payment by [Cincinnati] to the first named Insured of loss sustained by any
Insured shall fully release [Cincinnati] on account of such loss.” The Trustee
draws attention to the fact that under this clause, Bancshares, as the first named
insured, “shall act” for the Bank. He also emphasizes that under the clause,
Bancshares is entitled to receive from Cincinnati the insurance proceeds for any
insured.
We do not read the clause in the same way as does the Trustee. The phrase
“act for” simply creates an agency relationship. See O.C.G.A. § 10-6-1 (“The
relation of principal and agent arises wherever one person . . . authorizes another
to act for him . . . .”). Thus, under the joint insured clause, Bancshares agreed to
be an agent for the Bank. The fact that Bancshares was entitled to receive
payment from Cincinnati does not mean that it could keep it. See, e.g., Courts v.
Jones, 8 S.E.2d 178, 179–80 (Ga. Ct. App. 1940); Restatement (Third) of Agency
§ 8.12 cmt. b (2006) (“If the agent receives property for the principal, the agent’s
duty is to use due care to safeguard it pending delivery to the principal.”).
5
The joint insured clause thus, at the very most, left only the possibility that
Bancshares could sue Cincinnati on behalf of the Bank. Under the Bankruptcy
Code, however, “property of the estate” does not include “any power that the
debtor may exercise solely for the benefit of an entity other than the debtor.” 11
U.S.C. § 541(b)(1). In other words, “if property is in the debtor’s hands as agent,
the property or proceeds therefrom are not treated as property of the debtor’s
estate.” In re Rine & Rine Auctioneers, 74 F.3d 854, 857 (8th Cir. 1996); see also
In re Stevens, 130 F.3d 1027, 1029 (11th Cir. 1997). Thus, insofar as the joint
insured clause authorized Bancshares to sue Cincinnati on behalf of the Bank, that
cause of action was not property of Bancshares’ bankruptcy estate.
For these reasons, we conclude that the district court did not err in holding
that the Trustee does not have the right to pursue the breach-of-contract claim
premised on the November 2007 proof of loss. We therefore affirm the judgment
of the district court.
AFFIRMED.
6