Chemical Bank v. Affiliated FM Insurance

169 F.3d 121
CourtCourt of Appeals for the Second Circuit
DecidedFebruary 25, 1999
DocketDocket No. 97-7982
StatusPublished
Cited by1 cases

This text of 169 F.3d 121 (Chemical Bank v. Affiliated FM Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chemical Bank v. Affiliated FM Insurance, 169 F.3d 121 (2d Cir. 1999).

Opinion

WINTER, Chief Judge:

Affiliated FM Insurance Co. (“Affiliated”) appeals from a judgment, entered after a bench trial before Judge Pollack, awarding Chemical Bank and five other banks (collectively, the “Banks”)1 approximately $47 million in damages and $45 million in prejudgment interest. The award was made under a maritime open cargo insurance policy issued by Affiliated to Andina Coffee, Inc. (“Andina”), a New York-based coffee importer. The policy named the Banks as additional insureds. See Chemical Bank v. Affiliated FM Ins. Co., 970 F.Supp. 306, 312 (S.D.N.Y.1997). For the reasons that follow, we conclude that the policy had been validly terminated at the time of the losses and accordingly reverse with instructions to enter judgment for Affiliated.

BACKGROUND

The present dispute arose from the presentation of fraudulent draw documents to the Banks in 1986 by several Colombian export businesses owned by the Echiverri family. The Echiverri family’s companies (the “Echiverri Group” or the “Group”) were collectively one of the two largest privately-owned coffee exporters in Colombia. In 1974, the Group, along with four other coffee exporters, established New York-based Andi-na to act as the exporters’ financing agent in the United States. By 1982, Andina was owned entirely by the Echiverri Group and was the Group’s exclusive sales agent.

Typically, the Group would begin a commercial cycle by contracting with an Ameri[124]*124can roaster for the sale and purchase of coffee. The Group would then inform Andi-na of the contract, and Andina would open a letter of credit in the Group’s favor with one of the Banks. Once the Group had obtained and processed the coffee in Colombia, it would release the coffee to a trucker who would issue a truck bill of lading (“TBOL”)— a commercial invoice that would, when presented to the Bank issuing the relevant letter of credit, allow the Group to draw upon the letter of credit. When the Group drew upon the letter of credit, Andina would incur a loan chargeable against its line of credit with the particular Bank. Andina would then arrange for the coffee to clear customs in the United States, deliver it to the customer, and collect payment. Andina would use the proceeds from the sale to repay the corresponding loan. This arrangement ran smoothly until 1986. See Chemical Bank, 970 F.Supp. at 311.

In July 1980, Andina purchased through Trinder & Norwood (“T & N”), Andina’s longtime general insurance broker, a marine open cargo insurance policy issued by Affiliated (the “Affiliated Policy” or “Policy”). The Affiliated Policy generally covered goods lost in shipment. However, the so-called FBOL clause — “FBOL” being the acronym for “fraudulent bills of lading” — also provided coverage for “loss or damage occasioned through the acceptance by [Andina] and/or their agents or shippers of fraudulent Bills of Lading.” The Affiliated Policy required Affiliated to provide Andina with 90 days’ written notice of cancellation.

As a condition of financing Andina’s transactions with the Echiverri Group, the Banks required Andina to procure suitable insurance coverage for itself and to add the Banks to the policy. See Chemical Bank, 970 F.Supp. at 321-22. Accordingly, Andina directed T & N to add each Bank to the Affiliated Policy as an additional insured. Each Banker’s endorsement recited in pertinent portion that:

This insurance, as to the interest of the Bank, shall not be impaired nor invalidated by any act or neglect of the named Assured [i.e., Andina] nor by failure to comply with any warranty or condition over which the Bank has no control; and this policy shall not be cancelled nor materially changed as to the interest of the Bank unless 10 days’ ... prior written notice of such change or cancellation shall have been given to the Bank.2

In the summer of 1985, Affiliated advised T & N that it wished to cancel the Policy. On November 27, 1985, Affiliated gave T & N written notice of cancellation of the Policy effective March 1,1986. T & N, fearing that an insurer’s unilateral cancellation would make it difficult for Andina to secure substitute coverage, successfully persuaded Affiliated in December 1985 to rescind its notice of cancellation. In exchange for that rescission, T & N — at Andina’s direction — promised to obtain replacement insurance as soon as possible and to inform Affiliated of the actual date of cancellation.

On or about February 25, 1986, T & N obtained from Hogg Robinson, a London broker, a cover note providing that a new policy (the “London Policy”), issued by certain Lloyd’s syndicates and other insurance companies (collectively, the “London insurers”), was effective as of that date.3 T & N immediately telexed both Affiliated and Andina to confirm that the Affiliated Policy was can-celled and replaced with the London Policy. T & N did not send a notice of cancellation to the Banks; William Fieldman, a T & N broker, testified that sending such notice is normally the responsibility of the insurer, a point that David A. Pemmerl, a manager for Affiliated, confirmed.4 On March 11, 1986, Affiliated sent to the Banks a notice stating [125]*125that the Affiliated Policy was cancelled as to all shipments made on or after February 25, 1986. No Bank voiced any objection to the termination of the Affiliated Policy as of that date, to the terms of the London Policy, or to the lack of prior notice of cancellation.

Because some shipments of coffee had purportedly been in transit in Colombia prior to February 25, 1986, but had not been shipped by that date, T & N encountered problems in allocating premium payments between the Affiliated and London Policies. On April 22, 1986, T & N agreed with Affiliated, Hogg Robinson, and the London insurers that the London Policy would be amended to cover all interior shipments made before February 25, 1986, except for those for which ocean bills of lading had already been issued. An endorsement embodying this agreement (the “April Agreement”) was added to the London Policy, but no corresponding endorsement was added to the Affiliated Policy. No notice of the April agreement was given to the Banks.

Also in April, an increasing lag between the Echiverri Group’s delivery of TBOLs to Andina and its shipment of coffee developed. Worse, in August 1986, the Banks and Andi-na learned that the coffee described in several TBOLs did not exist and that the Echiver-ri Group had been using the money drawn on the Banks’ letters of credit to finance other debts.

Upon discovery of the fraud, each Bank provided Affiliated and the London insurers with written proofs of loss. With the exeeption of NatWest, which sent proofs of loss to all insurers for all periods of time, each Bank submitted claims against Affiliated for losses occurring before February 25, 1986, and against the London insurers for losses occurring on or after that date.5 Both insurers refused to pay the claims. The London insurers asserted that the London Policy was void ah initio due to alleged placing errors and non-disclosure by T & N of the fact that Affiliated had sent a notice of cancellation in November 1985. See Chemical Bank, 970 F.Supp. at 324. Affiliated contended, inter alia, that the Affiliated Policy did not cover losses resulting from the acceptance of fraudulent TBOLs that described non-existent coffee. See id. at 329.

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Related

Chemical Bank v. Affiliated Fm Insurance Co.
169 F.3d 121 (Second Circuit, 1999)

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Bluebook (online)
169 F.3d 121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chemical-bank-v-affiliated-fm-insurance-ca2-1999.