Arlington Community Federal Credit Union v. Berkley Regional Insurance

57 F. Supp. 3d 589, 2014 U.S. Dist. LEXIS 154723
District Court, E.D. Virginia·Decided October 30, 2014·No. Case No. 1:14cv1022·Published·Cited by 9 cases

Opinion

MEMORANDUM OPINION

T.S. ELLIS, III, District Judge.

In this removed diversity insurance coverage dispute, the threshold issue is the propriety of the removal on diversity jurisdiction grounds. Specifically, two questions are raised:

(1) whether plaintiff, a federally chartered corporation, which is not covered by 28 U.S.C. § 1332, is “localized” in Virginia and thus a Virginia citizen for diversity of citizenship purposes where, as here, plaintiff has its principal place of business in Virginia, all of its branch offices are in Virginia, and the vast majority of its business operations are in Virginia; and, if so,
(2) whether a removal notice adequately states jurisdictional grounds for removal where, as here, defendant’s removal notice cites as the grounds for removal (i) diversity of citizenship and (ii) plaintiffs principal place of business in Virginia, but does not specify that plaintiff is localized in Virginia, or allege facts relating to the application of the localization doctrine.

For the reasons stated from the bench and elucidated here, diversity jurisdiction is present in this case, the notice of removal is adequate, and, in any event, defendant, in these circumstances, may properly be permitted to amend its notice of removal to add factual allegations in support of diversity jurisdiction as its basis or ground for removal.

I.

Plaintiff Arlington Community Federal Credit Union (“ACFCU”) is a federal credit union engaged, inter alia, in the business of offering its members various finan[591] cial services, including savings accounts and mortgage loans. It is undisputed that ACFCU’s principal place of business is in Arlington, Virginia and that all of ACFCU’s branch offices are in Virginia. Also undisputed is that approximately 78% of ACFCU’s members list Virginia as their state of residence, and that Virginia members account for 86% of ACFCU’s total deposit account balance and 79% of ACFCU’s total loan balance.

Defendant Berkley Regional Insurance Company (“Berkley”) is a Delaware corporation engaged in the business of insurance. Berkley issued an insurance policy to ACFCU, titled Financial Institution Bond for Credit Unions, Bond No. CUB 6002662-11 (hereinafter the “Policy”).

The Policy, by its terms, provides coverage for various losses and also excludes coverage in certain circumstances. Specifically pertinent here is the policy provision which provides coverage for:

(0)(1) Loss resulting directly from fraudulent instruction through E-mail, Telefacsimile or Telephonic means received by the Insured from a person who purports to be the Accountholder, the Accountholder’s authorized representative or an employee but is not the Accountholder, [or] the Accountholder’s authorized representative or an Employee, provided:
(a) the Insured performed a Callback Verification -with respect to the instruction, or
(b) the Insured followed a commercially reasonable security procedure set forth in a written funds transfer agreement, signed by the Account-holder or the Accountholder’s authorized representative, that governs the transaction and instruction.

Also pertinent here is exclusion q, which excludes coverage for:

(q) loss resulting directly or indirectly from a fraudulent instruction through Email, Telefacsimile, or Telephonic means, or ACH debit from the Account-holder’s account that was originated through another financial institution, except as may be covered under the Employee or Director Dishonesty Insuring Agreement, or the Funds Transfer Insuring Agreement.

On September 25, 2013, ACFCU received a wire transfer request from a person claiming to be an ACFCU member. In these circumstances, ACFCU procedures require that the responding employee verify the request by calling the requesting party back to verify pertinent security, information. Consistent with these procedures, the ACFCU employee on duty called the requestor twice at home to verify pertinent security information. In doing so, the ACFCU employee apparently confirmed the source and validity of the wire transfer before wiring the funds in accordance with the request. The amount of the wire transfer was $198,760. In fact, the request was fraudulent, and ACFCU made a claim under the Policy for this loss. Berkley acknowledged coverage for this loss under the Policy chiefly because ACFCU had performed the required callback verification in accordance with both the terms of the Policy, as well as ACFCU’s internal security procedures.

On September 27, two days later, ACFCU received a telephone call from a person purporting to be the same ACFCU member who submitted the wire transfer request two days earlier. In this call, this individual made a second wire transfer request. This time, ACFCU’s representative did not, as required by ACFCU procedures and the Policy, call the requestor back to verify pertinent security information. Instead, ACFCU’s representative chose to verify, in the same telephone call, [592] the alleged member’s date of birth, phone number, and email address, as well as the maiden name of the alleged member’s mother, along with the amount and destination of the wire transfer. On the basis of having verified this information, the ACFCU representative complied with the request and wired the funds—$153,893. This request was also fraudulent. With respect to this transaction, Berkley denied coverage for ACFCU’s loss because ACFCU did not perform a callback verification as required by the Policy, and because ACFCU contravened its own internal wire transfer guidelines by failing to complete a callback verification. In response, ACFCU argues that although a callback verification did not occur on September 27, the ACFCU representative nonetheless performed a “commercially reasonable security procedure” consistent with the terms of the Policy (¶ 0(l)(b)) and hence, the Policy requires Berkley to reimburse ACFCU for the $153,893 lost as a result of the fraudulent September 27 transaction. Thus, it is this second transaction which forms the basis for the parties’ instant dispute.

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Arlington Community Federal Credit Union v. Berkley Regional Insurance, 57 F. Supp. 3d 589, 2014 U.S. Dist. LEXIS 154723 (E.D. Va. 2014).

57 F. Supp. 3d 589 (Arlington Community Federal Credit Union v. Berkley Regional Insurance) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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