First National Bank v. United States Fidelity & Guaranty Co.

274 F. Supp. 305, 1967 U.S. Dist. LEXIS 8116

Opinion

MEMORANDUM DECISION

CARSWELL, Chief Judge.

This case is before the Court on defendant’s motion to dismiss. It is basic that in consideration of a motion to dismiss, the Court must accept as true the facts as alleged in the complaint. Without determining the ultimate adequacy of plaintiff’s proofs, the Court looks to the face of the complaint and the terms of the attached insurance policy in determining whether a cause of action exists.¹

The Court concludes that a cause of action does exist and that defendant’s motion to dismiss the complaint should be denied.

This case involves an alleged loss of the plaintiff bank (“the bank”) allegedly covered by the indemnification provisions of a banker’s blanket bond (“the policy”) issued by the defendant insurance company (“the insurance company”) to the bank.

The loss allegedly resulted from the default of a loan extended on the strength of Program Certificate and Advices of the Dreyfus Investment Program of the Bank of New York allegedly altered by Jo Yonne M. Barnes.

As shown by the exclusions, the policy does not insure the bank generally against forgery or default but only to the extent as specifically set forth in other clauses of the policy.

The specific clauses which control here are clauses (D) and (E), which by their alternative language are broad enough as a matter of law to cover the type of loss allegedly sustained by the bank. The meaning of the terms of clauses (D) and (E), both commercially and as construed by this Court, are held to include the alleged loss, and apparent confusion on this point is properly excluded if each and every or in both clauses is read according to its function as a disjunctive, alternative word. The comma as used in clauses (D) and (E) also clarifies the scope of the policy.

The pertinent portion of clause (D) is thus properly read to mean “which instructions or advices have been altered without the knowledge and consent of such banking institution.² ” The “banking institution” which had no knowledge nor gave consent is, in this case, the Bank of New York, the custodian for the Dreyfus fund. This Bank’s name and status are prominently listed on both the Advices and the Investment Certificate, and it is reliance on these items which allegedly caused the plaintiff bank’s loss and which were allegedly altered without the knowledge and consent of the Bank of New York.

The pertinent portion of Clause (E) as well as the exact practical and commercial nature of the Certificate and Advices make it clear to this Court that the Certificate and Advices are the kind of security, documents or other written instruments that Clause (E) was intended to encompass, in terms of collateral or security for extending any credit (the expressed predicate for the loss under Clause (E)). Under Clause (E) the loss may be due inter alia to alterations of “securities, documents or other written instruments.”

The Dividend Reinvestment Advices along with the Program Certificates are evidence of the ownership of fund shares in the Program. In purchasing the investment fund program from the original investor, a buyer has for examination' both Program Certificate and Advices to ascertain the present size of that investor’s ownership in the fund, then may check the current fund share quotation to determine the value of that investor’s accumulations. Both Certificate and Advices are necessary to show this value. There is no apparent reason to doubt the veracity of the Program Certificate or the Advices. But each is such that it can be altered, counterfeited, stolen or misaddressed.

Certain arguments and case authorities advanced by defendant insurance company have been examined by the Court and found to be distinguishable and inapplicable in view of the terms of this policy and the alleged facts. Neither commercial usage nor distinctions made in case law conflict with the relevant language of this policy and its application to the facts alleged in this complaint.

It is, therefore, hereby

Ordered:

Defendant’s motion to dismiss be and it is hereby denied.

Footnotes

1

. Washington v. Official Court Stenographer, 251 F.Supp. 945 (D.C.Pa.1966); Blau v. Oppenheim, 250 F.Supp. 881 (D. C.N.Y.1966). See also Tranowski v. Chicago Bar Ass’n, 309 F.2d 421 (7th Cir. 1962) to the same effect regarding an appeal from the dismissal of a complaint and Cf. Fuhrer v. Fuhrer, 292 F.2d 140 (7th Cir. 1961) to the effect that on defendant’s motion to dismiss, the facts as alleged must be viewed in the light most favorable to plaintiff.

2

. This entire portion of clause (D) with emphasis added reads: “which instructions or advices purport to have been signed or endorsed by any customer of the insured or by any banking institution but which instructions or advices either bear the forged signature or endorsements or have teen altered without the knowledge and consent of such customer or hanlving institution. * * * ” Note the six disjunctives to which emphasis could have been added as well as the one italicized. impaired, or abated; others are whether the service contributes materially to the consummation of transactions in interstate or foreign commerce or makes it possible for existing instrumentalities of commerce to accomplish the movement of such commerce effectively and to free it from burdens and obstructions. ” (Emphasis supplied.)