Provident Bank of Maryland v. Travelers Property Casualty Corporation, Formerly Known as Aetna Life & Casualty Company

236 F.3d 138, 43 U.C.C. Rep. Serv. 2d (West) 955, 2000 U.S. App. LEXIS 33821, 2000 WL 1878966
CourtCourt of Appeals for the Fourth Circuit
DecidedDecember 28, 2000
Docket00-1378
StatusPublished
Cited by15 cases

This text of 236 F.3d 138 (Provident Bank of Maryland v. Travelers Property Casualty Corporation, Formerly Known as Aetna Life & Casualty Company) 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
Provident Bank of Maryland v. Travelers Property Casualty Corporation, Formerly Known as Aetna Life & Casualty Company, 236 F.3d 138, 43 U.C.C. Rep. Serv. 2d (West) 955, 2000 U.S. App. LEXIS 33821, 2000 WL 1878966 (4th Cir. 2000).

Opinions

Vacated and remanded by published opinion. Judge NIEMEYER wrote the opinion, in which Judge WIDENER joined. Judge WILKINS wrote a dissenting opinion.

OPINION

NIEMEYER, Circuit Judge:

We must determine whether a “Check Stop Payment Liability” endorsement to a “Commercial General Liability” insurance policy provides the insured, a bank, with a right to a legal defense of a law-suit brought against it for its wrongful dishon- or of drafts drawn on an irrevocable letter of credit. Because we conclude that the policy imposes a duty on the insurance company to defend the insured, we vacate the district court’s judgment concluding otherwise and remand for further proceedings.

I

On May 22, 1991, Provident Bank of Maryland was served with a summons and complaint in the case of Suriel Finance, N.V. v. Provident Bank of Mainland, filed in the District of Maryland. The complaint alleged that Provident Bank wrongfully dishonored a draft drawn on a letter of credit it had issued. The suit demanded over $9 million in damages. Provident Bank forwarded the suit papers to Travelers Property Insurance Company (“Travelers”), its insurer.1 Travelers acknowledged its receipt of the papers by a letter dated July 2, 1991, and notified Provident Bank of Travelers’ appointment of counsel to defend the bank. In the letter, Travelers also stated:

As you are aware, your coverage for this suit falls under the [Check Stop Payment Liability] endorsement to your policy. The limit of insurance on this endorsement is $100,000, subject to a deductible of $2500 per claim.
The total amount of damages sought by the plaintiff is in excess of your policy limits and, therefore, any judgment ren[141]*141dered against you in excess of your policy limits will not be covered.

But a few weeks later Travelers wrote Provident Bank again and stated that it had reviewed the allegations and “other information available to us at this time” and was reserving its right to “disclaim coverage”:

There may be coverage under special Endorsement #6, for count III [wrongful dishonor claim]. If it is determined that coverage is available under this endorsement, the amount of coverage is limited to [$]100,000. This limit of insurance is stated in the Endorsement language.
We will conduct any investigational activity in conjunction with the case under a full reservation of the company’s rights. Such investigation or activity does not prejudice our right to disclaim coverage at a later date.
We will inform you of our decision on these issues when our investigation is complete. In the meantime, your rights and interests are being protected.

The initial litigation was succeeded by a second suit entitled Banca del Sempione v. Suriel Finance, N.V. and Provident Bank of Maryland, which presented the same claims relating to Provident Bank’s wrongful dishonor of a draft drawn on a letter of credit issued by it. Thereafter, in May 1992, Travelers again wrote Provident Bank about coverage, stating that Travelers had submitted the coverage question to its outside lawyers “for purposes of assisting our coverage determination.” The letter continued:

The findings of our coverage counsel were in agreement with the previous correspondence forwarded to you. We have been advised, however, that there does exist a potentiality of coverage with respect to Count III (Wrongful Dishon- or of the Letter of Credit Under the UCC) as a result of Special Endorsement VI (Check Stop Payment Liability).

The letter reassured Provident Bank that Travelers would provide a defense for the wrongful dishonor claim and requested Provident Bank to have its counsel coordinate with Travelers’ counsel to defend that claim. Travelers never withdrew its agreement to provide a defense of Count III through Provident Bank’s lawyers, but it did continue to reserve its right not to pay any part of a resulting judgment. Following a six-week bench trial during March and April of 1997, the district court entered judgment against Provident Bank in the amount of $5,264,399.

The background against which this underlying suit was litigated involved a $6.7 million loan made by Banca del Sempione to Suriel Finance, N.V., which in turn loaned the money to its client, Rock Solid Investments, Ltd. Suriel Finance required Rock Solid Investments to secure the interest on this loan with an irrevocable letter of credit issued by a bank to Suriel Finance in the amount of $750,000, which credit was to renew annually. To obtain the letter of credit, Rock Solid Investments deposited $800,000 in certificates of deposit with Provident Bank and paid the bank a $39,375 fee. Under the arrangement, the beneficiary of the letter of credit, or any assignee thereof, could present a draft to Provident Bank for an amount up to the face amount of the credit and be paid that amount by the bank. The draft had to be accompanied by a certification that Rock Solid Investments had defaulted on its obligation to pay interest on the underlying loan.

A dispute later arose among the parties whether Provident Bank’s $750,000 obligation under the letter of credit would automatically be “re-available” each year under a revolving arrangement, providing beneficiaries of the letter of credit with a total of $5.25 million upon which to draw. Provident Bank took the position that credit was limited to $750,000, and therefore, when Banca del Sempione, as assign-ee of the letter of credit, presented drafts that exceeded $750,000 by $113,250, Provi[142]*142dent Bank refused to pay the $113,250 “overdraft.”

The district court in the underlying case concluded, for complex factual reasons involving a purported side-letter amendment to the letter of credit, that Provident Bank was obligated to honor drafts on a revolving basis up to $5.25 million, and on that basis, it entered a $5.26 million judgment in favor of Banca del Sempione and against Provident Bank. We affirmed that judgment in Banca Del Sempione v. Provident Bank, 160 F.3d 992 (4th Cir.1998). In defending this lengthy litigation, which involved two separate appeals, Provident Bank incurred over $2 million in attorneys fees and costs.

Provident Bank filed this action to obtain reimbursement from Travelers for its litigation costs under a “Commercial General Liability” policy issued by Travelers to Provident Bank for the period April 1, 1990 through April 1, 1991. This policy included coverage for “wrongful dishonor” liability, or “Check Stop Payment Liability” as the endorsement was denominated. On cross-motions for summary judgment filed by the parties, the district court denied Provident Bank coverage under the policy. The court ruled that the Check Stop Payment Liability endorsement did not cover the wrongful dishonor claim because the endorsement contained an exclusion that withheld coverage for liability assumed by Provident Bank “under any agreement to be responsible for a loss,” and the court found the letter of credit to be such an agreement. The court also ruled that Travelers did not have a duty to defend the underlying litigation for wrongful dishonor because, even if the exclusion did not apply, the Check Stop Payment Liability endorsement contained no duty to defend. The court added,

[I]n the final analysis Provident’s reading of the policy as a whole is strikingly unreasonable.

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236 F.3d 138, 43 U.C.C. Rep. Serv. 2d (West) 955, 2000 U.S. App. LEXIS 33821, 2000 WL 1878966, Counsel Stack Legal Research, https://law.counselstack.com/opinion/provident-bank-of-maryland-v-travelers-property-casualty-corporation-ca4-2000.