Bank One, West Virginia, St. Albans, Na, Successor to Citizens National Bank of St. Albans v. United States Fidelity & Guaranty Company

92 F.3d 1176, 1996 U.S. App. LEXIS 25549, 1996 WL 432002

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 2, 1996
• Docket: 95-2024
• Status: Unpublished

Opinion

92 F.3d 1176

NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
BANK ONE, WEST VIRGINIA, ST. ALBANS, NA, Successor to
Citizens National Bank of St. Albans, Plaintiff-Appellant,
v.
UNITED STATES FIDELITY & GUARANTY COMPANY, Defendant-Appellee.

No. 95-2024.

United States Court of Appeals, Fourth Circuit.

Aug. 2, 1996.

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Charles H. Haden II, Chief District Judge. (CA-94-714-2)

ARGUED: Kevin Alfred Nelson, KAY, CASTO, CHANEY, LOVE & WISE, Charleston, West Virginia, for Appellant. Edward Graham Gallagher, WICKWIRE, GAVIN, P.C., Vienna, Virginia, for Appellee. ON BRIEF: William W. Booker, Jonathan Nicol, KAY, CASTO, CHANEY, LOVE & WISE, Charleston, West Virginia, for Appellant.

S.D.W.Va.

AFFIRMED.

Before WILKINSON, Chief Judge, LUTTIG, Circuit Judge, and SHEDD, United States District Judge for the District of South Carolina, sitting by designation.

Affirmed by unpublished per curiam opinion.

OPINION

PER CURIAM:

Appellant Bank One appeals the district court's grant of summary judgment in favor of appellee United States Fidelity Guaranty Co. ("USF & G") in Bank One's action for payment of interest due to unreasonable delay in payment of amounts due under the fidelity bond provided to Bank One by USF & G. The district court held, on the authority of Bennett v. Federal Coke & Coal Co., 74 S.E. 418 (W.Va.1912), that Bank One's cause of action for interest ceased to exist due to Bank One's acceptance of payment of the principal debt from USF & G in the course of executing a partial settlement agreement. See J.A. at 154-56. In addition, the district court found that Bank One could not recover interest in any event because recovery of such interest was contrary to the explicit terms of Bank One's fidelity bond, which specifically excluded "interest ... not realized by the insured." J.A. at 156. The district court further denied as meritless two of Bank One's motions: the first to amend Bank One's complaint to allege a bad faith claim for USF & G's unreasonable delay in payment, and the second to amend the judgment to rescind the partial settlement agreement. See J.A. at 252.

Appellant raises four claims. First, Bank One argues that Bennett 's holding that an action for interest cannot be maintained after acceptance of payment of the principal is no longer good law in West Virginia. Second, Bank One argues that neither the fidelity bond nor the partial settlement agreement at issue in the case prevents Bank One from pursuing an action for interest due to unreasonable delay in payment. Third, Bank One argues that the district court erred in failing to allow Bank One to file a second amended complaint. Fourth, Bank One argues it is entitled to rescission of its partial settlement agreement with USF & G due to fraud or mutual mistake.

We have carefully considered the lower court opinions, record, briefs, and the parties' contentions at oral argument. Finding no reversible error, and concluding in particular that Bennett remains the law in West Virginia, we affirm on the opinion of the district court.

AFFIRMED