Sec. Nat'l Ins. Co. v. Jamestown Union Bancshares, Inc.

352 F. Supp. 3d 845
CourtDistrict Court, M.D. Tennessee
DecidedNovember 26, 2018
DocketNO. 2:18-cv-00025
StatusPublished
Cited by3 cases

This text of 352 F. Supp. 3d 845 (Sec. Nat'l Ins. Co. v. Jamestown Union Bancshares, Inc.) is published on Counsel Stack Legal Research, covering District Court, M.D. Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sec. Nat'l Ins. Co. v. Jamestown Union Bancshares, Inc., 352 F. Supp. 3d 845 (M.D. Tenn. 2018).

Opinion

WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE

Security National Insurance Company ("Security National") brings this diversity action under the Declaratory Judgment Act, 28 U.S.C. § 2201, seeking a declaration regarding its obligation to defend or indemnify Jamestown Union Bancshares, Inc. ("Jamestown") and Union Bank (together, "Defendants") in a tort dispute *849pending in Tennessee state court. Before the Court is Defendants' Motion to Dismiss (Doc. No. 12) on the ground that the Court should decline to exercise its discretion to adjudicate this dispute in deference to the state court forum. Defendants have responded in opposition. (Doc. No. 18.) For the following reasons, the motion will be denied.

I. Background

A. The Parties and the Insurance Policy

Security National is an insurance company incorporated in Ohio and based in Texas. (Doc. No. 1 at ¶ 1.) Jamestown and Union Bank are a Tennessee corporation and bank, respectively, with the same principal place of business in Jamestown, Tennessee. (Id. at ¶ 2.) On May 20, 2015, Security National issued Policy No. SDO111557-01 (the "Security Policy"), a Directors and Officers liability insurance policy, to Defendants. (Id. at ¶ 7.) The Security Policy ran through May 20, 2018. (Id.)

Insuring Agreement D of the Policy is subject to a $1,000,000 limit of liability and a $25,000 retention. (Id. at ¶ 8.) It states: "The Insurer will pay on behalf of the company, loss that is the result of a claim for a lending wrongful act first made during the policy period or during the Extended Reporting Period, if exercised." (Id.) "Lending Wrongful Act" (as amended by the Broad Form Lender Liability Endorsement) is defined as "any actual or alleged, misstatement, misleading statement, error or omission, or neglect or breach of duty by the company concerning an extension of credit by the company, or an actual or alleged agreement, failure or refusal by the company to extend credit. Lending wrongful act includes the servicing of loans for others under a contract or agreement." (Id. at ¶ 9.)

Insuring Agreement E is subject to a $2,000,000 limit of liability and a $25,000 retention. (Id. at ¶ 10.) It states: "The Insurer will pay on behalf of the company, loss that is a result of a claim for a company wrongful act first made during the policy period or during the Extended Reporting Period, if exercised." (Id.) "Company Wrongful Act" is defined as "any actual or alleged, misstatement, misleading statement, error or omission, or neglect or breach of duty by the company." (Id. at ¶ 11.)

As amended by the Broad Form Lender Liability Endorsement and the Delete Insider Loan Exclusion Endorsement, Exclusion C of the Security Policy states:

The Insurer shall not be liable to make any payment for loss in connection with any claim for a lending wrongful act based upon, arising out of, relating to, in consequence of, or in any way involving:
1. intentional noncompliance with a statute or regulation;
2. failure to effect or maintain any insurance or bond;
3. bankruptcy of, or suspension of payment by any bank, banking firm, broker or dealer in securities or commodities or any other financial institution;
4. any extension of credit which was, or which would have been at the time of its making, in excess of the legal lending limit of the company or any related entity which extended the credit; or
5. any lending or financial advisory service where such services are provided for a fee and are not part of the normal process of extending credit to the borrower.

(Id. at ¶ 12.)

There are other exclusions as well. Exclusion A.3 excludes coverage for "any insured *850person or the company gaining, in fact, any profit, remuneration, or financial advantage to which they were not legally entitled." (Id. at ¶ 13.) Exclusion A.7 excludes coverage for:

[A]ny fraudulent, dishonest or criminal actions of an insured person or the company. However, the insured person or the company shall be indemnified for defense expenses as to any claim alleging such fraudulent, dishonest or criminal actions, unless a judgment or final adjudication establishes such fraudulent, dishonest or criminal acts or if such acts are otherwise established in fact. In the event that the Insurer has no liability, the insured person or the company agrees to repay to the Insurer, upon demand, all monies advanced by the Insurer in connection with such claim.

(Id. at ¶ 14.) Exclusion A.8 excludes coverage for:

[T]he willful failure to comply with any law or any governmental or administrative order or regulation by the company or an insured person or with the consent of the company or an insured person. For the purposes of this exclusion, "willful" means acting with reckless disregard of such laws, orders or regulations. However, the insured person or the company shall be indemnified for defense expenses as to any claim alleging such willful failure unless a judgment or final adjudication establishes such willful failure or if such willful failure is otherwise established in fact. In the event that the Insurer has no liability, the insured person and the company agree to repay to the Insurer, upon demand, all monies advanced by the Insurer in connection with such claim.

(Id. at ¶ 15.) Finally, Exclusion A.13 excludes coverage for "the assumption of any liability to defend, indemnify or hold harmless any person or entity, other than an insured person, under any written contract or agreement unless such liability would have been imposed in the absence of such contract or agreement." (Id. at ¶ 16.)

B. The Underlying State Tort Lawsuit

In November 2017, Lester and Ruth Clark (the "Clarks") filed a lawsuit against Union Bank in Overton County Circuit Court (the "Clark Lawsuit"). (Id. at ¶ 20.) The Clark Lawsuit alleges that Union Bank failed to acquire or maintain insurance on certain real property owned by Danielle Akard ("Akard"). More specifically, the Clarks alleged that they (1) sold the property at issue to Akard and retained a first priority lien as security for seller financing they provided to Akard; (2) Union Bank provided a loan to Akard and secured it with a second priority lien on the property; and (3) Union Bank agreed to provide insurance on the property for protection of the Clarks' and its' respective interests; and (4) Union Bank failed to obtain that insurance. (Id. at ¶¶ 22-25.)

It is not necessary for the Court to delve too deeply into the relationship between the Clarks and Akard here, nor to discuss at too great length the disputed events surrounding the alleged lack of property insurance. In short, at some point, Akard defaulted on her loan to Union Bank, and the bank moved to foreclose.

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Bluebook (online)
352 F. Supp. 3d 845, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sec-natl-ins-co-v-jamestown-union-bancshares-inc-tnmd-2018.