Gulf Underwriters Insurance v. KSI Services, Inc. , 233 F. App'x 239 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1362
GULF UNDERWRITERS INSURANCE COMPANY,
Plaintiff - Appellee,
versus
KSI SERVICES, INCORPORATED,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, District
Judge. (1:05-cv-00875-TSE)
Argued: January 31, 2007 Decided: May 1, 2007
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed by unpublished opinion. Judge Niemeyer wrote the opinion,
in which Judge Wilkinson and Judge Shedd joined.
ARGUED: Wayne Gormly Travell, LEACH & TRAVELL, P.C., Vienna,
Virginia, for Appellant. Jonathan M. Jacobs, WILEY, REIN &
FIELDING, L.L.P., Washington, D.C., for Appellee. ON BRIEF: Daniel
J. Standish, WILEY, REIN & FIELDING, L.L.P., Washington, D.C., for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
NIEMEYER, Circuit Judge:
KSI Services, Inc., a Virginia real estate developer, engaged
Merit Title LLC to provide it with escrow services. Over the
course of several years, KSI Services entrusted over $1.1 million
in escrow funds to Merit Title pursuant to this arrangement.
During the same period, Margaret Dean, Merit Title’s bookkeeper,
embezzled approximately $1.4 million in over 130 transactions, and
Merit Title thereafter went into bankruptcy, unable to return the
entrusted funds to KSI Services. The bookkeeper subsequently pled
guilty to a criminal charge of embezzlement.
Merit Title submitted claims for its losses to two insurance
companies -- one that provided Merit Title with a fidelity bond and
another, Gulf Underwriters Insurance Company, which had issued
Merit Title an errors and omission policy. The fidelity bond
yielded payment to Merit Title of $100,000 for the loss resulting
from Merit Title’s bookkeeper’s dishonesty. Gulf Underwriters,
however, denied coverage, contending that Merit Title’s loss was
excluded from errors and omissions coverage as “arising out of” a
dishonest or criminal act.
After KSI Services obtained a default judgment against Merit
Title in a Virginia state court in the amount of $827,151.52, plus
interest and costs, Gulf Underwriters commenced this action against
KSI Services seeking a declaratory judgment that it does not owe
coverage for the loss under the errors and omissions policy because
-2-
of, among other reasons, the exclusion for dishonest or criminal
acts. KSI Services filed a counterclaim seeking indemnity for the
judgment it obtained against Merit Title, claiming a total of
$860,501.52 plus interest.
The district court granted summary judgment in favor of Gulf
Underwriters, and KSI Services filed this appeal. We review the
district court’s judgment de novo. See In re Wallace and Gale Co.,
385 F.3d 820, 828 (4th Cir. 2004).
The errors and omissions policy issued by Gulf Underwriters
provides that Gulf Underwriters will pay on behalf of Merit Title
“those sums . . . that [Merit Title] become[s] legally obligated to
pay as damages or claim expenses because of claims as a result of
a wrongful act in performing insured services for others.” A
“wrongful act” is defined as, among other things, a “negligent act,
error or omission” of Merit Title’s “officers, directors and
employees,” while acting “within the scope of their duties for
[Merit Title].” The relevant exclusion from coverage provides:
We [Gulf Underwriters] are not obligated to pay damages
or claim expenses or defend claims for or arising
directly or indirectly out of . . . [a]n act or omission
that a jury, court or arbitrator finds dishonest,
fraudulent, criminal, malicious or was committed while
knowing it was wrongful.
Because the damages claimed by KSI Services against Merit
Title arose directly or indirectly from the dishonest or criminal
act of Merit Title’s employee, coverage for the damages is excluded
under the plain terms of the policy.
-3-
KSI Services asserts that its claim against Merit Title is
based on Merit Title’s negligent supervision of its dishonest
employee, and negligent supervision is a distinct “wrongful act”
that is covered by the error and omissions policy. This argument,
however, overlooks the fact that while Merit Title’s negligent
supervision may have been a contributing cause of the loss, an
equally important cause of the loss was the bookkeeper’s criminal
acts. The policy language excluding coverage for damages arising
“directly or indirectly” out of criminal acts contemplates multiple
causes of liability and does not restrict the exclusion’s operation
to circumstances in which the criminal act was the liability’s
direct or sole cause or even its proximate or primary cause. Thus,
so long as one of the direct or indirect causes of the loss was a
criminal act, the exclusion operates to deny coverage.
In claiming coverage, KSI Services also relies on a line of
cases from other jurisdictions construing the language of policies
issued by National Union Fire Insurance Company. See Watkins Glen
Central Sch. Dist. v. Nat’l Union Fire Ins. Co., 732 N.Y.S.2d 70(N.Y. App. Div. 2001); Durham City Bd. of Educ. v. Nat’l Union Fire
Ins. Co., 426 S.E.2d 451 (1993); Bd. of Public Educ. v. Nat’l Union
Fire Ins. Co., 709 A.2d 910 (Pa. Sup. Ct. 1998). These cases are
typified by the holding in Watkins Glen where liability was
asserted against a school district for negligently hiring,
supervising, and retaining a teacher who sexually abused a student.
-4-
732 N.Y.S.2d at 71. The school district’s insurance company,
National Union Fire Insurance Company, invoked the policy’s
criminal act exclusion, claiming that the teacher’s sexual
misconduct, as a cause of the potential liability, relieved the
insurer of any duty to defend or indemnify. Id. at 73. The
Watkins Glen court did not refer to the specific language of the
National Union policy’s exclusion, stating only that it was the
same exclusion at issue in Board of Public Education, 709 A.2d at
912 (quoting an exclusion for “any claim arising out of . . .
assault or battery”), and holding that the exclusion was
inapplicable. Id. The court reasoned that “liability as against
the school district is predicated upon its conceptually independent
negligent supervision.” Id. The court reasoned that to deny
coverage “would completely undermine the purpose of” the errors and
omissions policy, which was intended to insure against negligent
acts, including negligent supervision. Id. at 74.
The observation of the Watkins Glen court that a claim of
negligent supervision is different from a claim of assault and
battery, while true, is irrelevant to this case. The relevant
language here excludes damages arising directly or indirectly out
of any criminal act. The analysis under this language thus differs
from the analysis required under the National Union policy
language.
-5-
Moreover, we note that a number of courts, construing language
generally similar to that before the Watkins Glen court, have ruled
contrary to the Watkins Glen line of cases. See Continental Cas.
Co. v. H.S.I. Fin. Servs., 466 S.E.2d 4, 5 (Ga. 1996); St. Paul
Fire & Marine Ins. Co. v. Aragona, 365 A.2d 309, 313 (Md. Ct. Spec.
App. 1976); Stouffer & Knight v. Continental Cas. Co., 982 P.2d
105, 110 (Wash. Ct. App. 1999).
Generally, protection from dishonest or criminal acts is
provided by fidelity bonds, not by errors and omissions policies
that exclude damages arising out of dishonest or criminal acts.
And that is so in this case where the unambiguous language of the
policy excludes damages caused in whole or in part by the
bookkeeper’s dishonest or criminal acts. Accordingly, we affirm
the judgment of the district court.
AFFIRMED
-6-