Liberty Mutual Insurance Co. v. Ward (In re Ward)

578 B.R. 541
CourtUnited States Bankruptcy Court, E.D. Virginia
DecidedNovember 29, 2017
DocketCase No. 16-11676-KHK; AP No. 16-01174-KHK
StatusPublished
Cited by1 cases

This text of 578 B.R. 541 (Liberty Mutual Insurance Co. v. Ward (In re Ward)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Liberty Mutual Insurance Co. v. Ward (In re Ward), 578 B.R. 541 (Va. 2017).

Opinion

MEMORANDUM OPINION

Keith L. Phillips, United States Bankruptcy Judge

This matter comes before the Court on the Complaint for Determination of Non-dischargeability of Debt filed by Liberty Mutual Insurance Company (“Liberty’ or the “Plaintiff’) seeking to have debts owed by Timothy Allen Ward, Sr. (the “Debtor” or “Defendant”) excepted from discharge. Trial of the matter was conducted on September 1, 2017. For the reasons set forth below, the pourt finds that the debts owed to Liberty resulted from the Debtor’s defalcation and are nondischargeable pursuant to § 523(a)(4) of the Bankruptcy Code, 11 U.S.C. § 523(a)(4).

Procedural History

Liberty commenced this adversary proceeding by filing a complaint on August 15, 2016, alleging that the Debtor committed defalcations while acting in a fiduciary capacity in connection with two estates in which he was appointed administrator for a decedent and a third estate in which he had been appointed as guardian for an incapacitated adult. In each of the appointments, the Debtor was required by the state court to post a bond. Liberty provided surety on the bonds, and the Debtor agreed to indemnify Liberty from any claims or losses that Liberty incurred in connection with the bonds. Liberty incurred losses on the bonds, and the complaint seeks to have its claims for indemnification declared nondischargeable due to the Debtor’s breach of his fiduciary duties and defalcations.

In his answer to the complaint, the Debtor generally denies that he consciously or recklessly breached his fiduciary duties. The Debtor claims that his alleged failures to properly administer the estates were, at most, the result of ordinary negligence and are insufficient to establish the elements necessary to have the debts declared . nondischargeable under § 523(a)(4).1

On December 30, 2016, Liberty filed a motion for summary judgment. On May 12, 2017, the Court entered an. order and memorandum opinion granting summary judgment in part and denying it in part.2 The Court found that a debt exists between Liberty and the Debtor and that the debt arose from the Debtor’s having acted in a fiduciary capacity. The Court ruled that Liberty was entitled to summary judgment on those elements of § 523(a)(4). The Court further found that a dispute existed as to whether the debts arose from the Debtor’s alleged defalcation and reserved that issue for trial.

Findings of Fact

As part of its memorandum opinion issued on May 12, 2017, the Court made findings of fact. Those findings were not contradicted at trial and are incorporated herein as follows:

I, The Estate of Paul Klein (the “Klein Estate”):
The Debtor, a licensed Virginia attorney, was appointed as administrator of the estate of Paul Klein (“Klein Estate”) on May 28, 2002. The Debtor posted bond in the amount of $591,000.00, with surety provided by Liberty. On September 25, 2002, the Debtor filed an inventory with Commissioner of Accounts for Fairfax County (“Commissioner”) in which he reported Klein Estate assets totaling $590,941.86. The inventory was approved on February 23, 2003.
In March 2003, the Debtor executed a Surety Application and . Indemnity Agreement with Liberty, whereby Liberty agreed to provide surety on the Debtor’s bond and the Debtor agreed to “exonerate and indemnify [Liberty] from and against all claims, losses, liability, damages ... costs, fees, expenses, suits, orders, judgments, or adjudications” that Liberty may thereafter have incurred in connection with the bond.
On November 30, 2003, the Debtor filed a first account for the Klein Estate. Since the Debtor filed the first account in 2003, all of the subsequent accounts were and remained delinquent. The Debtor was ultimately removed as administrator of the Klein Estate on April 6, 2012. The Circuit Court of Fairfax County ordered that the Debtor was to remain liable on his bond until he had filed all required accounts for the Klein Estate, which he has yet to do. The substitute administrator received statements from the IRS and Virginia Department of Taxation indicating that the Klein Estate owed penalties and interest. On September 17, 2013, the Virginia State Bar Disciplinary Board suspended the Debtor’s license to practice law within Virginia for two years. On September 5, 2014,’ a judgment was entered against the Debtor in favor of Liberty for $35,115.95 plus interest, fees, and costs.
II. The Estate of Richard Hamilton3 (the “Hamilton Estate”):
On March 31, 2003, the Debtor was appointed as administrator of the estate of Richard Hamilton (“Hamilton Estate”). The Debtor was required to post bond for $74,000.00, with surety provided by Liberty, and he entered into an indemnity agreement similar to the one used in the Klein Estate. The Debtor also executed a Fiduciary Acknowledgment Form, indicating that he understood the extent of his duties and that he could be held liable for violations of the same. After appointment as administrator, the Debtor failed to respond to notices sent by the Commissioner regarding deficiencies in the first filed accounting, failed to file the subsequent accountings, and failed to pay the bond premiums, resulting in a claim against the Hamilton Estate. The Debtor was eventually removed as administrator of the Hamilton Estate. The substitute administrator was able to resolve the deficiencies without a loss payment from Liberty; however, Liberty did incur related attorney’s fees.
III. The Estate of Jillian Cho (the “Cho Estate”) (collectively, the “Estates”):
On April 5, 2007, the Debtor was appointed as substitute fiduciary for the estate of Jillian Cho (“Cho Estate”). The Debtor posted a bond for $580,000.00, with surety provided by Liberty, through its wholly-owned subsidiary Ohio Casualty Insurance Company. Again, the Debtor entered into a similar indemnity agreement.
On December 6, 2010, based on a report from the Commissioner of Accounts for Prince William County, the Prince William County Circuit Court ordered that the bond was to be forfeited in the amount of $21,250.52 for Debtor’s “misfeasance and/or malfeasance.” On the same date, a judgment was. entered in favor of Liberty against the Debtor for $29,856.03 plus interest.

Supplemental findings of fact. Based on the evidence presented at the trial held on September 1, 2017, the Court supplements its previous factual findings as follows:

At all relevant times, the Debtor understood that he had accepted and agreed to perform fiduciary duties as administrator and guardian for the three Estates, including the duty to timely file accountings and tax returns.4 The Fiduciary Acknowledgement Form signed by the Debtor on March 31, 2003, upon his appointment to the Hamilton Estate, included the following language:

As Fiduciary, I understand I am charged with the general responsibilities as follows: ...

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re: Linda Nguyen
Ninth Circuit, 2024

Cite This Page — Counsel Stack

Bluebook (online)
578 B.R. 541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/liberty-mutual-insurance-co-v-ward-in-re-ward-vaeb-2017.