First Nat. Bank of Louisville v. Lustig

United States Court of Appeals,
Fifth Circuit.
No. 91–9530
Summary Calendar.
FIRST NATIONAL BANK OF LOUISVILLE, Plaintiff–Appellant,
v.
Loretta LUSTIG, et al., Defendants,
Fidelity & Deposit Co. of Maryland, Defendant–Appellee.
Oct. 26, 1992.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before JONES, DUHÉ, and WIENER, Circuit Judges.
DUHÉ, Circuit Judge:
A lender sued a savings and loan association ("S & L") and its fidelity insurer for losses
resulting from the dishonesty of an S & L employee. The insurer moved to dismiss on the basis that
no direct action lies against it for the asserted claim. The district court granted the motion to dismiss
and directed the entry of final judgment under Federal Rule of Civil Procedure 54(b). Plaintiff appeals
and asks that we certify to the Louisiana Supreme Court the question whether it may sue the insurer
directly under the Louisiana direct action statute, La.Rev.Stat. § 22:655. For the following reasons,
we deny the motion to certify and affirm the judgment of dismissal.
BACKGROUND
Plaintiff–Appellant First National Bank of Louisville (FNBL) sued the insured alleging losses
from a deal gone sour: FNBL lost money on a project it financed in reliance on misrepresentations
of an S & L employee. (In related proceedings, FNBL sued the employee.) FNBL also sued
Defendant–Appellee Fidelity and Deposit Company of Maryland (F & D), who provided coverage
for employee dishonesty through a Savings and Lo an Blanket Bond in favor of the S & L. The
district court granted F & D's motion to dismiss for failure to state a claim. After the Louisiana
Supreme Court handed down Quinlan v. Liberty Bank & Trust Co.1 discussing the Louisiana direct
action statute, FNBL moved for reconsideration of the dismissal. The district court denied
reconsideration on the basis that F & D did not provide "liability" insurance as required for
application of the direct action statute. We agree and affirm.
ANALYSIS
The issue before us is whether insurance provided to the insured S & L under a standard-form
Savings and Loan Blanket Bond covering fraudulent and dishonest acts of the S & L's employees
provides "liability" insurance or "indemnity" insurance as these terms have been defined in Louisiana
law.
The Louisiana direct action statute gives a tort victim a right of action directly against the
tortfeasor's insurance company. By its own terms the direct action statute applies only to "liability"
insurance. Nevertheless, the Louisiana Supreme Court has opined that the statute "is a mandate for
a tort victim to bring a direct suit to recover damages for personal injury or corporeal property
damage from the tortfeasor's insurer, regardless of whether the insurer has framed the policy as a
liability or an indemnity contract." Quinlan, 575 So.2d at 352.
In a suit to recover loss to incorporeal property, however, such as the loss claimed in FNBL's
complaint, the way the insurer has framed the policy is determinative. According to Quinlan, a tort
victim seeking recovery of an incorporeal loss has a direct action only if the tortfeasor's policy
provides "liability" coverage as opposed to "indemnity" coverage. A tort vict im suffering only
incorporeal loss or damage does not have the benefit of a direct action if "the parties to the insurance
contract have agreed unambiguously that the contract shall be an indemnity contract only." Quinlan,
575 So.2d at 353.
1
Quinlan v. Liberty Bank & Trust Co., 575 So.2d 336 (La.1990).
Our inquiry, then, is whether F & D's contract unambiguously provides indemnity coverage
only. The "chief distinction" between the two types of policies is that "under a liability policy a cause
of action accrues when liability attaches, whereas under an indemnification policy there is no cause
of action until the liability has been discharged, as by payment of the judgment by the insured." Id.The Quinlan court specifically considered the arguments regarding an insurance policy
provisions on "Loss," "Loss Payable," and "Action Against Company" to determine whether a cause
accrues when liability attaches (a liability policy) or when a liability has been discharged (an indemnity
policy). See id. at 354–55. Considering comparable provisions of the bond disputed here, we find
that this policy unambiguously provides indemnity rather than liability coverage.
The policy does not indicate that a cause of action against F & D accrues when liability
attaches. The policy obligates Fidelity to "indemnify the Insured for ... Loss resulting directly from
dishonest or fraudulent acts of an Employee committed alone or in collusion with others." Bond at
2, Insuring Agreement A (appended to Def.'s Mot.Dismiss filed Jan. 19, 1988). The use of the phrase
"indemnify for Loss" in this provision manifests the intent that the policy indemnify against loss rather
insure against liability. Moreover, the provision continues, "Dishonest or fraudulent acts ... shall
mean [such acts] committed ... with the manifest intent to cause the Insured to sustain such loss."
Id. (emphasis added). This definition signifies that the losses indemnified are the insured 's losses
from employee dishonesty. The requirement that a loss be "sustained" further denotes an indemnity
agreement. See Meloy v. Conoco, Inc., 504 So.2d 833, 839 (La.1987) (noting the characteristic of
an indemnity agreement to provide that the indemnitor is not liable "until the indemnitee actually
makes payment or sustains loss").
FNBL contends that certain provisions of the policy suggest liability coverage or at least
produce an ambiguity in the type of coverage intended. Contrary to arguments of FNBL, we do not
find that exclusion (u),2 the "Discovery" sect ion (describing which losses are within the period of
coverage),3 or the costs-of-defense provision (providing for indemnification against court costs and
attorneys' fees)4 instructive in determining the nature of the fidelity coverage. Nor do these
provisions create an ambiguity in the policy suggesting liability coverage. Exclusion (u) and the
"Discovery" section mention "loss covered under this bond," "loss covered by the bond," or "loss
under this bond"; but these provisions do not define "loss" to include third party claims. The
cost-of-defense provision sheds no light on the meaning of the employee dishonesty provision or the
scope of its coverage.
This policy contains no ambiguity as did the policy in Quinlan requiring as a condition
precedent to a claim that the insured pay "its full liability." (The court found the condition precedent
2
Exclusion (u) provides that the bond does not cover "damages of any type for which the
Insured is legally liable, except direct compensatory damages arising from loss covered under this
bond." Bond at 4.
3
The "Discovery" section provides as follows:
This bond applies to loss discovered by the Insured during the bond period.
Discovery occurs when the Insured becomes aware of facts which would cause a
reasonable person to assume that a loss covered by the bond has been or will be
incurred, even though the exact amount or details of loss may not then be known.
Notice to the Insured of an actual or potential claim by a third party which
alleges that the Insured is liable under circumstances which, if true, would create a
loss under this bond constitutes such discovery.
Bond at 5, § 4.
4
The cost-of-defense provision is as follows:
E. The Underwriter shall indemnify the Insured against court costs and
reasonable attorneys' fees incurred and paid by the Insured in defending any suit or
legal proceeding brought against the Insured to enforce the Insured's liability or
alleged liability on account of any loss, claim or damage which, if established
against the Insured, would constitute a collectible loss under this bond in excess of
any Deductible Amount.
The Insured shall promptly give notice to the Underwriter of the institution
of any such suit or legal proceeding....
Bond at 3, Gen.Agreement E.
ambiguous because it could plausibly be interpreted as requiring payment of the full limit of its
retention rather than the full payment of the judgment .) We do not find this policy susceptible to
more than one reasonable interpretation. Guided by Quinlan, we hold that the policy in question is
solely and unambiguously an indemnification policy.
The F & D policy provides that "This bond affords coverage only in favor of the Insured.
No suit, act ion or legal proceedings shall be brought hereunder by any one other than the named
Insured." Bond at 5, § 5(f). This no-action clause need not be ignored under Quinlan since the
policy is unambiguously an indemnity policy. The Louisiana high court has not extended the direct
action statute's prohibition of no-action clauses to indemnity contracts in situations where a plaintiff
is claiming only incorporeal injuries. See Quinlan at 353.
Because Quinlan provides us sufficient guidance regarding application of the Louisiana direct
action statute, we deny the motion to certify. See La.Sup.Ct.R. 12; La.Rev.Stat. § 13:72.1.
CONCLUSION
The bond conclusively demonstrates the intent to indemnify losses and not the intent to insure
against liability. The direct action statute has no application to such a policy. Accordingly, the
district court properly dismissed the Plaintiff's suit against F & D.
Judgment AFFIRMED; motion to certify DENIED.