Huey T. Littleton Claims, Inc. And Huey T. Littleton v. Employers Reinsurance Corporation

933 F.2d 337, 1991 WL 89806
CourtCourt of Appeals for the Fifth Circuit
DecidedSeptember 25, 1991
Docket90-4606
StatusPublished
Cited by13 cases

This text of 933 F.2d 337 (Huey T. Littleton Claims, Inc. And Huey T. Littleton v. Employers Reinsurance Corporation) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Huey T. Littleton Claims, Inc. And Huey T. Littleton v. Employers Reinsurance Corporation, 933 F.2d 337, 1991 WL 89806 (5th Cir. 1991).

Opinion

E. GRADY JOLLY, Circuit Judge:

Huey T. Littleton Claims Service, Inc., as well as its namesake president, 1 appeals from a declaratory judgment entered in favor of its errors and omissions insurer, Employers Reinsurance Corporation (hereinafter “ERC”). At issue in this controversy is whether Littleton’s E & 0 policy protects it from legal claims that may be brought against it on account of an employee’s embezzlement. A United States magistrate, relying on Jensen v. Snellings, 841 F.2d 600, 615 (5th Cir.1988), concluded that Littleton would be covered should it suffer liability as a consequence of its negligent supervision of its embezzling employee; the district court disregarded the magistrate’s recommendation and, instead, held that Littleton’s policy with ERC affords no coverage against prospective lawsuits stemming from the embezzlement. For the reasons that follow, we affirm.

I

We need detail but few facts, none of which is in dispute. Littleton, an insurance claims adjusting company, holds a policy issued by ERC that, appropriately enough, is entitled “Adjuster’s Professional Liability Insurance Policy.” Two sections of that policy are in question: Section I — “COVERAGE” — provides that the insurance contract covers “liability imposed upon the Assured by law for damages caused by any act or omission of the Assured, or of any person for whose acts the Assured is legally liable, and arising out of the perform- *339 anee of professional services for others, in the Assured’s capacity as an adjuster... Section VI — “EXCLUSIONS”—provides that “[tjhis policy does not apply to: (a) any dishonest, fraudulent, illegal, criminal, or malicious act, other than malicious prosecution.”

In August 1980, Littleton hired Tom Foster as a claims adjuster. Foster’s responsibilities included managing “trust accounts,” pools of funds that belonged to Littleton’s clients but that Littleton itself kept on hand and administered. Although at first heavily supervised, Foster eventually attained the authority to manage Little-ton’s trust accounts with little oversight. In late 1988, a review of accounts catalyzed by Foster’s transfer to a newly-opened Lit-tleton office revealed that Foster had skimmed roughly $150,000 from the trust account coffers.

Upon learning of Foster’s filching, Little-ton reported its loss to Aetna Casualty and Surety, an insurer with which it had a $10,000 employee fidelity policy. After Aetna approved Littleton’s claim, the company — still smarting from a $140,000 shortfall — notified ERC of the loss and asked it for indemnification against prospective legal claims made by the owners of the trust accounts. ERC refused: It advised Little-ton that should such legal claims be made, it would deny coverage on the ground that the company’s losses were attributable to Foster’s “dishonest,” “criminal” act and thus were excludable under Section VI.

II

Littleton effectively concedes that, were it only vicariously liable for Foster’s theft, its policy with ERC would not apply because of the Section VI exclusion. 2 Consistent with this concession, Littleton asks us to interpret the policy as providing coverage for its “negligent acts or omissions which may have resulted in Foster’s embezzlement of funds from clients of the service” — that is to say, for Littleton’s independent negligence (if any). Because this is a diversity action, we decide Littleton’s request on the basis of Louisiana substantive law.

At the outset, we note that on some issues the parties find themselves in agreement. For example, neither side suggests that Littleton committed any “dishonest, fraudulent, illegal, criminal, or malicious act.” Furthermore, the litigants all but stipulate that a judgment against Littleton for the loss would fall within Section I of the policy and that, therefore, Littleton is fully covered barring the application of an exclusion.

The solitary divisive issue before us, in fact, is whether the policy’s dishonest act exclusion reaches liability that may also be imposed upon the company owing to its own negligence. On this question we agree with ERC that the language in Section VI precludes coverage when Littleton’s liability for the loss is based upon the excluded conduct of its employee. Irrespective of the legal theory through which Littleton’s clients proceed against it — whether vicarious tort liability, independent tort liability, or even contractual liability — Foster’s perfidy remains an essential if not the legal proximate cause of the clients’ damage. Alternatively stated, regardless of why Littleton is held liable, any claim it files with ERC will in the end stem from Foster’s “dishonest,” “criminal” act — expressly excluded under Section VI.

What is more, to adopt the reading advocated by Littleton would be to flout at least two of Louisiana’s policy construction principles. First, Louisiana requires a policy to be construed so as to give effect, if possible, to every provision therein. Hemel v. State Farm Mutual Auto Insurance Co., 211 La. 95, 29 So.2d 483 (1947); Scarborough v. Travelers Insurance Co., 718 F.2d 702 (5th Cir.1983); Gulf Oil Corp. v. Mobile Drilling Barge, 441 *340 F.Supp. 1 (E.D.La.1975), aff'd, 565 F.2d 958 (5th Cir.1978). Under Littleton’s reading of its policy, however, the dishonest act provision borders on meaninglessness. If, as Littleton suggests, Section VI applies only to claims charging the company with vicarious liability, Littleton need only concede its negligent supervision of the wrong-doing employee — and hence its independent negligence — in order to circumvent the express exclusion. Furthermore, Louisiana asks that courts interpret policies in such a way as to comport with the parties’ intentions (as expressed, of course, in the language of the policy itself). See generally Graves v. Traders & General Insurance Co., 252 La. 709, 214 So.2d 116 (1968). We would be blind not to discern from the text of Section VI a desire to foreclose recovery for losses occasioned by illicit acts such as Foster’s.

Finally, our holding is buttressed by the Louisiana Supreme Court’s decision in Lamkin v. Brooks, 498 So.2d 1068 (La. 1986). The plaintiff in that case, Lamkin, sought damages for injuries he had suffered during a run-in with a Louisiana policeman; in his complaint, he named the assaulting officer, the city that employed him, and their insurer as party-defendants. Although Lamkin alleged that the town was both vicariously and independently negligent, 3 the court, after finding the city vicariously liable, concluded that it “need not reach the issue of independent negligence.” Lamkin, 498 So.2d at 1071. The court went on, however, to hold that an exclusion clause in the policy (excepting claims “arising out of the willful, intentional or malicious conduct of any [ijnsured,” here the police officer) precluded the town from obtaining indemnification from the insurer. Id.

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