NMS Services Inc. v. Hartford

62 F. App'x 511
CourtCourt of Appeals for the Fourth Circuit
DecidedApril 21, 2003
Docket01-2491
StatusUnpublished
Cited by5 cases

This text of 62 F. App'x 511 (NMS Services Inc. v. Hartford) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
NMS Services Inc. v. Hartford, 62 F. App'x 511 (4th Cir. 2003).

Opinions

OPINION

GREGORY, Circuit Judge.

NMS Services, Inc. (“NMS”), a software development company, brought suit against The Hartford Fire Insurance Company (“Hartford”), seeking coverage for claims made under NMS’s insurance policy. Hartford subsequently filed a motion for summary judgment, which the district court granted. We reverse and remand to the district court.

I.

NMS is a software development company whose business is to manufacture and sell Sales Force Automation and Call Center Management software to the telemarketing industry. Its operations are fully computerized. NMS’s property was insured by Hartford under a Special Property Coverage Form (“Special Property Form”), which provided basic property coverage, and a Computer and Media Endorsement (“Endorsement”), which provided optional computer coverage.

On July 22, 2000, NMS discovered that its computer systems had sustained considerable damage, including the erasure of vital computer files and databases necessary for the operation of the company’s manufacturing, sales, and administrative systems. It was later determined that the damage was caused by a hacker who gained access to the network during the evening of July 21, 2000. The hacker was John Powell, who was employed by NMS as a technical systems administrator until he was terminated on May 30, 2000. Unbeknownst to NMS, Powell had installed two hacking programs on NMS’s network systems while he was still employed at NMS. Those programs that Powell installed allowed him to gain full access to NMS’s systems by overriding security codes and unencrypting secured pass[513]*513words, thus enabling Powell to cause the damage discovered on July 22, 2000.

NMS filed a claim with Hartford for recovery under its insurance policy, which Hartford denied. NMS brought an action for declaratory judgment against Hartford in the Circuit Court of Fairfax County, Virginia. The action was removed to the United States District Court for the Eastern District of Virginia based upon diversity of citizenship. NMS amended its complaint, requesting damages in the amount of $850,000 and attorney’s fees. NMS then moved for partial summary judgment, and Hartford filed a cross-motion for summary judgment. The district court, finding that there was no coverage under the policy, granted Hartford’s motion for summary judgment. This appeal followed.

II.

This Court reviews grants of summary judgment de novo. JKC Holding Co., LLC v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.2001). Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c).

III.

NMS assigns error to the district court’s finding that because NMS entrusted Powell with its property, the dishonesty exclusion provisions under the Special Property Form and the Endorsement precluded coverage. In reviewing the district court’s grant of summary judgment, we examine the insurance policy to determine the effect of the dishonesty exclusions under the Special Property Form and the Endorsement on NMS’s coverage.

A.

NMS’s coverage under the Special Property Form is limited by the dishonesty exclusion, which states:

We will not pay for loss or damage caused by or resulting from:
Dishonesty: Dishonest or criminal act by you, any of your partners, employees, directors, trustees, authorized representatives or anyone to whom you entrust the property for any purpose:
(1) Acting alone or in collusion with others; or
(2) Whether or not occurring during the hours of employment.
This exclusion does not apply to acts of destruction by your employees; but theft by employees is not covered.

Form, ¶ B(2)(e) (emphasis in original). The district court held that NMS placed its computer systems “in the entrustment of the former employee [Powell] for their care and performance during his tenure.” NMS Servs., Inc. v. The Hartford Fire Ins. Co., Civil Action 01-667-A (E.D.Va. Dec. 7, 2001). The district court found that because Powell was entrusted with NMS’s property while still employed at NMS, NMS was precluded from coverage by the dishonesty exclusion of the Special Property Form. If the district court’s reasoning was correct, then any dishonest or criminal act committed by an employee (or former employee) that damaged property would preclude coverage if that employee had also been entrusted with the property. Such an interpretation would render the exception meaningless. Most employees, to some extent, are entrusted with property, but not all persons entrusted with property are employees. Therefore, where the entrusted person is also an employee, both the dishonesty exclusion clause prohibiting coverage for “dishonest or criminal acts by [514]*514an employee” and the exception to the exclusion apply.

It is undisputed that Powell installed the software which allowed him to destroy NMS’s data while he was still an employee of NMS. Powell’s actions on July 21, 2000, were the final step in carrying out his plan. Without the installation of the software, Powell could not have destroyed the data. The substantial portion of Powell’s actions took place while he was still an NMS employee, making Powell, for purposes of the dishonesty exclusion of the Special Property Form, an employee who committed a dishonest or criminal act. However, NMS’s property was not only damaged, but was completely destroyed by an employee, Powell, which triggers the exception to the dishonesty exclusion of the Special Property Form. Under the exception, acts of destruction by employees do not preclude coverage. Form, ¶ B(2)(e). Therefore, we find that the dishonesty exclusion of the Special Property Form does not preclude NMS’s coverage under the Special Property Form.

B.

The dishonesty exclusion of the Endorsement mirrors the dishonesty exclusion of the Special Property Form, however, it does not include the exception language found in the Special Property Form. Without that language, whether Powell committed a dishonest or criminal act as an NMS employee or as someone to whom NMS entrusted its property, the dishonesty exclusion precludes coverage under the Endorsement. Therefore, we affirm the district court’s finding that NMS has no coverage under the Endorsement.

IV.

Having found that the dishonesty exclusion does not preclude NMS’s coverage under the Special Property Form, we now examine the relevant provisions of the Special Property Form to determine the scope of NMS’s insurance coverage.

First, NMS has coverage under the Business Income Additional Coverage (“Business Income”) provision. Under that provision, Hartford “will pay for the actual loss of Business Income you sustain due to the necessary suspension of your ‘operations’ during the ‘period of restoration.’ The suspension must be caused by direct physical loss of or damage to property at the described premises....

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62 F. App'x 511, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nms-services-inc-v-hartford-ca4-2003.