National Credit Union Administration Board v. Cumis Insurance Society, Inc.

689 F. App'x 428
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 18, 2017
DocketCASE NO. 16-3140
StatusUnpublished

This text of 689 F. App'x 428 (National Credit Union Administration Board v. Cumis Insurance Society, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Credit Union Administration Board v. Cumis Insurance Society, Inc., 689 F. App'x 428 (6th Cir. 2017).

Opinions

ALICE M. BATCHELDER, Circuit Judge.

The plaintiff appeals the findings and judgment from a bench trial that the plaintiff is not entitled to a declaration of coverage under a fidelity bond issued by the defendant for losses arising from employee dishonesty. Because the defendant credit union’s directors knew of the employee dishonesty well before the bond was issued, and therefore that bond terminated before it was actually effective, we AFFIRM.

I.

The St. Paul Croatian Federal Credit Union (“St. Paul”) had served the members of its associated parish since 1943. It operated under federal regulation and National Credit Union Administration (“NCUA”) oversight. At the relevant times, Robert Calevich and Joseph Plavac were long-standing members of its Board of Directors. Anthony Raguz, the Chief Operating Officer, managed the operation and in 2000 began to take bribes in exchange for fraudulent loans. By 2010, Ra-guz had taken over $1 million in bribes and lost St. Paul some $72.5 million due to fraudulent loans.

In 2010, the NCUA became suspicious, confirmed its suspicions, and took control of St. Paul. Within a week, the NCUA placed it under conservatorship and then liquidation. But when the NCUA filed a claim with Cumis Insurance to collect on a fidelity bond, which was to provide $5 million in coverage for employee or director dishonesty, Cumis denied coverage.'

The NCUA sued Cumis in federal court, seeking a declaratory judgment that its claims were covered by a fidelity bond issued to St. Paul in February 2010 (the “2010 Bond”), and seeking compensatory damages including interest and attorneys’ fees. The parties consented to a bench trial [430]*430by a magistrate judge, who conducted a four-day trial in December 2015. The magistrate judge found that the 2010 Bond’s termination provision applied to deny coverage and, accordingly, ruled in favor of defendant Cumis. NCUA Board v. Cumis Ins. Society, Inc., No. 1:11-cv-1739, 2016 WL 165379 (N.D. Ohio Jan. 14, 2016). The magistrate judge explained that, to conceal his fraud, Raguz had prepared falsified financial reports that he submitted to the St. Paul Board for monthly review and to the NCUA on a quarterly basis. In every monthly report from January 2005 to January 2010 (and every quarterly report from 2003 to 2008), Raguz falsely reported the loan-repayment delinquency rate as zero — this reporting covered all loans offered by St. Paul, including real estate loans, credit card loans, unsecured loans, and share-secured loans. There were, in fact, actual reportable delinquencies but Raguz falsely reported zero delinquencies because he believed delinquent loans would draw the attention of the Board or the NCUA, and that such increased scrutiny would reveal his fraudulent scheme. The magistrate judge found Raguz’s testimony on these issues credible.

Cumis had argued that coverage for Ra-guz had terminated years earlier, when a Board member (specifically, Calevich) knew that Raguz had falsely reported zero delinquency rates to the Board and the NCUA. The 2010 Bond’s termination provision states, in relevant part:

9. Termination Or Limitation Of Coverage For Employee Or Director
1. This Bond’s coverage for an ‘employee’ or ‘director’ terminates immediately when one of your ‘directors,’ officers or supervisory staff not in collusion with such person learns of:
a. Any dishonest or fraudulent act committed by such ‘employee’ or ‘director’ at any time, whether or
not related to your activities or of the type covered under this Bond[.]
[[Image here]]
3. Termination of coverage for an ‘employee’ or ‘director’ under paragraphs 1. or 2. above terminates our liability for any loss resulting from any act or omission by that ‘employee’ or ‘director’ occurring after the effective date of such termination.

Cumis asserted that coverage for Raguz terminated before the inception of the 2010 Bond because Calevich knew — prior to February 2010 — that Raguz had committed dishonest acts by repeatedly failing to disclose reportable delinquencies to the Board and the NCUA.

At trial, Calevich testified that (1) he “knew in fact there had to be at least some delinquencies” based on his prior experience as St. Paul’s secretary-treasurer; (2) the Board had concerns about the zero delinquency rate; (3) the Board raised these concerns to Raguz from time to time; and (4) Raguz never provided a solid answer to the Board’s concerns. In the opinion, the magistrate judge quoted Calevich’s testimony at length and ultimately concluded:

[P]rior to February 10, 2010, Calevich ‘learned of a dishonest or fraudulent act committed by Raguz within the meaning of the 2010 Bond’s Termination provision. More specifically, ... prior to February 10, 2010, Calevich knew Raguz was submitting financial reports to the Board that reported a zero delinquency rate when, in fact, there were ‘reportable’ delinquencies at St. Paul....
[[Image here]]
Calevich also testified that, during the entire seven year time period that he served as St. Paul’s secretary/treasurer [431]*431(1998 to 2005), there were delinquencies at St. Paul. The Board, including Cale-vich, became concerned when the reported delinquencies suddenly ‘stopped.’ This was because, based on his longtime experience as a Board member, Calevich ‘knew in fact there had to be at least some delinquencies’ at St. Paul. The Board was so concerned, in fact, that it raised this issue directly with Raguz ‘from time to time,’ which implies the Board questioned Raguz regarding the zero delinquency rate on more than one occasion. Raguz ... never provided a ‘solid answer that [the Board] could rely on.’-
Taken as a whole, the above testimony and evidence shows that Calevich knew Raguz was falsely representing that St. Paul had a zero delinquency rate in financial reports to the Board. As set forth above, Calevich’s twenty-six years as a Board member provided him extensive familiarity with the composition and nature of St. Paul’s loan portfolio. It is undisputed that Calevich knew St. Paul carried tens of millions of dollars in non-share secured loans throughout the relevant time period. Moreover, Calevich’s trial testimony establishes that he knew such non-share secured loans were inherently ‘riskier’ (i.e., subject to delinquency) than share-secured loans. Indeed, Calevich acknowledged there were always delinquencies at St. Paul while he was secretary/treasurer. The Court finds this testimony credible, and notes it is consistent with long-time Board member Joe Plavac’s testimony that, between 1986 and 2001, there were delinquencies ‘each and every month and year at St. Paul’s’ at a rate of 1 to 2 %.
Significantly, when ‘the reported delinquencies suddenly stopped,’ Calevich testified he became concerned because he ‘knew, in fact, there had to be at least some delinquencies’ based on his own experience as a Board member.

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Bluebook (online)
689 F. App'x 428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-credit-union-administration-board-v-cumis-insurance-society-inc-ca6-2017.