Progressive Casualty Insurance v. Belmont Bancorp

199 F.R.D. 219, 2001 WL 92338
CourtDistrict Court, S.D. Ohio
DecidedFebruary 2, 2001
DocketNo. 99CV1352
StatusPublished
Cited by3 cases

This text of 199 F.R.D. 219 (Progressive Casualty Insurance v. Belmont Bancorp) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Progressive Casualty Insurance v. Belmont Bancorp, 199 F.R.D. 219, 2001 WL 92338 (S.D. Ohio 2001).

Opinion

OPINION AND ORDER

MARBLEY, District Judge.

I. INTRODUCTION

This matter is before the Court on Motion of Defendants, Belmont Bancorp and Belmont National Bank, to Dismiss Crossclaim of Defendant William Wallace, and on Defendant James J. Fleagane’s Motion to Dismiss.1 The Motions were filed on March 9, 2000 and April 10, 2000, respectively. For the following reasons, both motions are DENIED.

II. PROCEDURAL HISTORY

On December 16, 1999, the Plaintiff, Progressive Casualty Insurance Company (“Progressive”), filed an action averring claims in interpleader and in the nature of interpleader against Belmont Bancorp, three operating subsidiaries of Belmont, twenty-one current and/or former officers and/or directors of Belmont and the plaintiffs' in five lawsuits pending in state courts in West Virginia and Ohio. The basis of this Court’s jurisdiction is 28 U.S.C. § 1335.2

As of November 2, 2000, there were five related pending cases arising out of an allegedly elaborate fraud perpetrated by William Wallace, a former officer and/or director of Belmont National Bank and Belmont Ban-corp, and Schwartz Homes, a former customer of Belmont National Bank. The related lawsuits are: Greentree Financial Servicing Corp. v. Schwartz Homes, Inc., No. 99CV040170 (C.P. Tuscarawas County, Ohio filed Oct. 29, 1999); Fleagane v. Belmont Bancorp, No. 99C476R1 (Cir. Ct. of Ohio County, W. Va. filed Oct. 21, 1999); Beall Homes, Inc. v. Belmont National Bank, No. 99CV419 (C.P. of Belmont County, Ohio filed Nov. 29, 1999); Heinlein v. Waggoner, No. 99CV029 (C.P. of Belmont County, Ohio); Belmont National Bank v. Wallace, No. 5:00CV75 (N.D.W.Va.). The Plaintiff in this action, Progressive, is not party to any of the pending litigation.

On February 9, 2000, Defendant William Wallace filed his Answer and Counterclaim and Cross-Claim against Defendant Belmont Bancorp and Defendant Belmont National Bank. Mr. Wallace brought Cross and Counterclaims for Declaratory Relief pursuant to [222]*22228 U.S.C. § 2201. In his Counterclaim, Mr. Wallace asserted that he was a defendant in the four pending state court proceedings and sought a declaration that he had a right to a defense and to indemnification in the legal proceedings as an officer and/or director of Belmont Bancorp and Belmont National Bank. In his Cross-claim, he sought the same.

Defendant Fleagane is a shareholder who sued Belmont Bancorp in October of 1999, claiming losses from the loans made to Schwartz Homes. Mr. Fleagane brought suit in his individual capacity and also sought to represent the remaining Bancorp shareholders.

III. FACTS

Progressive issued a Directors and Officers Liability Insurance Policy (“D & 0 Policy”) to Belmont Bancorp for the period of July 18, 1997 to July 18, 2000. The aggregate limit of liability for each policy year during the policy period is $3,000,000. According to the terms of the exceptions listed in the D & O Policy, Progressive is not liable for a loss attributable to the “DIRECTORS and OFFICERS gaining in fact any profit or advantage to which they were not legally entitled; ... or brought about or contributed to in fact by the actual fraudulent, dishonest, criminal or unlawful acts of the DIRECTORS or OFFICERS....”

The D & O Policy includes an Entity E & O Liability Endorsement (“E & O Endorsement”). The E & O Endorsement has an aggregate limit of liability of $3,000,000 for each policy year. The E & O Endorsement contains an exemption clause similar to that of the D & O Policy. Under the E & O Endorsement, a loss is defined as:

[A]ny amount which the COMPANY is legally obligated to pay on account of any CLAIM for WRONGFUL ACTS and shall include judgments, settlements and COST OF DEFENSE.

LOSS shall not include:

1. criminal or civil fines or penalties imposed by law;
2. punitive or exemplary damages;
3. the amount of any multiplied damage award which is in excess of the damage award which was so multiplied;
4. taxes
5. the cost to comply with any injunctive or non-monetary relief or any agreement to provide such relief;
6. any unrepaid or outstanding credit extended to any customer;
7. any dividends or other distributions of corporate profits of the COMPANY to any shareholders of the COMPANY; and
8. matters which may be deemed uninsurable under the law pursuant to which this Policy shall be construed.

Progressive also issued a Financial Institute Bond (“Bond”) to Belmont National Bank, Belmont Bancorp, Belmont Financial Network and Belmont Investment and Financial Services. The Bond does not provide coverage for any loss caused by an employee once the employee is known to be dishonest or fraudulent as to any matter. The Bond provides:

This bond terminates as to any Employee ... (a) as soon as any Insured, or any director or officer not in collusion with such person, learns of any dishonest or fraudulent act committed by such person at any time, whether in the employment of the Insured or otherwise, whether or not of the type covered under Insuring Agreement (A), against the Insured or any other person or entity....

On September 15, 1999, Belmont Bancorp and Belmont National Bank submitted a Proof of Loss to Progressive alleging losses in excess of $22,000,000. The loss allegedly resulted from fraudulent or dishonest acts committed by Mr. Wallace in connection with the loans made by Belmont National Bank to Schwartz Homes and customers of Schwartz Homes. Defendant Wallace was an officer and/or director of Defendant Belmont National Bank and Belmont Bancorp.

This matter is now before the Court on the Motion of Defendants, Belmont Bancorp and Belmont National Bank, to Dismiss Cross-claim of Defendant William Wallace [18-1], and on Defendant James J. Fleagane’s Motion to Dismiss [33-1].

[223]*223IV. ANALYSIS

A. Motion to Dismiss Cross-Claim

Two Defendants, Belmont National Bank and Belmont Bancorp (“Belmont Defendants”), filed a Motion to Dismiss the Cross-claim of Defendant William Wallace on March 9, 2000. In the alternative, the Belmont Defendants request, in their Motion to Dismiss, that this Court decline to exercise discretionary jurisdiction over Defendant Wallace’s Cross-claim.

1. Rule 13(g): Cross-Claim

First, Defendant Belmont moves to dismiss Defendant Wallace’s Cross-claim, brought pursuant to Federal Rule of Civil Procedure 13(g), which provides:

(g) Cross-Claim Against Co-Party.

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Bluebook (online)
199 F.R.D. 219, 2001 WL 92338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/progressive-casualty-insurance-v-belmont-bancorp-ohsd-2001.