Foster v. National Union Fire Insurance

902 F.2d 1316
CourtCourt of Appeals for the Eighth Circuit
DecidedMay 7, 1990
DocketNos. 89-1991, 89-2172 and 89-2173
StatusPublished
Cited by1 cases

This text of 902 F.2d 1316 (Foster v. National Union Fire Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Foster v. National Union Fire Insurance, 902 F.2d 1316 (8th Cir. 1990).

Opinion

FLOYD R. GIBSON, Senior Circuit Judge.

Appellant National Union Fire Insurance Company (“National Union”) appeals the district court’s1 denial of its summary judgment motion and the jury verdict in favor of the Appellees, Gordon and Patricia Foster and Lloyd Patterson. The verdict held National Union liable under a fidelity bond it sold to Brittenum and Associates (“B & A”), a brokerage firm in Little Rock, Arkansas, for losses sustained by the Fosters and Patterson due to the acts of Jon Brittenum, president of B & A. National Union asserts several points of error, all of which dispute the district court’s reading of applicable Arkansas law. The Fosters and Patterson cross-appeal the denial of enhancement of the award of attorneys’ fees. We affirm.

I. BACKGROUND

The Fosters and Patterson had some $400,000 and $300,000, respectively, in securities with B & A. The Fosters and Patterson believed the securities were held by the firm of B & A, while National Union suggests that they were personally loaned to Jon Brittenum. In either case, the investments were allegedly (and later determined by jury verdict to be) lost due to fraudulent and dishonest acts of Jon Britte-num, the president and owner of B & A.2 Pursuant to Arkansas law, B & A was covered by a fidelity bond written by National Union for, inter alia, loss due to the fraudulent or dishonest acts of an employee.

After the Securities Investor Protection Corporation (the “SIPC”) determined that the Fosters and Patterson were not insured customers of B & A for purposes of SIPC insurance protection, the Fosters filed suit in April 1987 against National Union, while [1318]*1318Patterson separately filed in July of that year, both in state court. The cases were removed to federal district court based on diversity and later consolidated for trial. The Fosters’ and Patterson’s complaints claimed coverage under the fidelity bond issued by National Union to B & A.

National Union moved for summary judgment on several grounds, arguing in part that because the fidelity bond expressly did not provide coverage to third parties the Fosters and Patterson lacked standing to sue. The district court denied the motion on the grounds that as a matter of public policy under Arkansas law the Fosters and Patterson had standing to sue on the bond, despite the bond’s contrary language.

When the case went to trial, National Union again tried to use the language of the fidelity bond in its favor. National Union made a motion in limine requesting that any evidence that Brittenum intended to cause either B & A or third parties to sustain a loss be disallowed. National Union argued that its fidelity bond expressly covered only losses sustained by B & A. The district court denied National Union’s motion on the ground that because it had already ruled that the Fosters and Patterson had standing to sue it would be inconsistent to limit the presentation of their case with respect to liability. That is, there would be no point to giving them standing to sue under the bond to recover only the losses of B & A and not their own losses. Actually, however, B & A is responsible for these losses and hence suffers those losses itself.

Finally, National Union objected to an instruction which allowed the jury to consider a loss to either B & A or third parties as the loss triggering coverage under the fidelity bond. Needless to say, the district court overruled the objection having already disposed of the matter by its decision on National Union’s motion in limine. The jury returned a verdict in favor of the Fosters and Patterson. The Fosters and Patterson sought attorneys’ fees under Arkansas law as well as an enhancement of those fees. The district court awarded fees, costs, and a 12% penalty, but declined to enhance the fees.

II. DISCUSSION

Each of National Union’s points for reversal — 1) failure to grant its summary judgment motion for lack of standing, 2) denial of its motion in limine on evidence of losses by third parties, and 3) improper instruction, again on losses by third parties — ultimately disputes the district court’s reading of Arkansas law that provided coverage to third parties under the fidelity bond as a matter of public policy. Thus, the primary issue on this appeal is whether the district court’s view of Arkansas law can survive appellate review.

In our review we give deference to the interpretation of a state law made by a district court sitting in that state. Cowens v. Siemens-Elema AB, 837 F.2d 817, 823 (8th Cir.1988). We will not reverse the district court unless its analysis is “fundamentally deficient ..., without a reasonable basis, or contrary to a reported state-court opinion.” McCarthy Bros. Constr. Co. v. Pierce, 832 F.2d 463, 467 (8th Cir.1987) (quoting Economy Fire & Cas. Co. v. Tri-State Ins. Co. of Minn., 827 F.2d 373, 375 (8th Cir.1987)). Bearing those standards in mind, we note that while there is not a decision interpreting the Arkansas statute in question by the Supreme Court of Arkansas, the district court judge is a former member of that court. Her judgment on the matter is due considerable weight.

We have not, however, failed to closely examine the matter ourselves. As a general rule, National Union’s position is correct. A fidelity bond is not ordinarily liability insurance which covers third parties. See Continental Corp. v. Aetna Cas. & Sur. Co., 892 F.2d 540, 543 (7th Cir.1989) (amended opinion on denial of rehearing); Anderson v. Employers Ins. of Wausau, 826 F.2d 777, 780 (8th Cir.1987) (interpreting Iowa law on bankers’ blanket bond). There are numerous other federal and state court cases which could be cited to defend that rule. But not one of them has interpreted Arkansas law and the bond in question, or addressed the public policy issue that is apparent in this case.

Turning to the bond, we acknowledge that it expressly provides for coverage only [1319]*1319to the insured, B & A. The fidelity provision under which the Fosters and Patterson sued provides that:

Dishonest or fraudulent acts as used in this Insuring Agreement shall mean only dishonest or fraudulent acts committed by such Employee with the manifest intent:
(1) to cause the Insured to sustain such Loss; and
(2) to obtain financial benefit for the Employee

Agreed Statement of Facts, Exhibit 1, Appellant’s Addendum.

The plain language of the bond would neither allow suit by third parties nor cover their losses. But the language of the bond, however clear, cannot control where it is contrary to the law.

The statute in question is found at Ark.Code Ann. § 23-42-305.3 There is no Arkansas ease law interpreting the statute on the issue presented in this case.

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902 F.2d 1316, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foster-v-national-union-fire-insurance-ca8-1990.