State ex rel. Doak v. Pride National Insurance Co.

2016 OK CIV APP 75, 386 P.3d 1058, 2016 Okla. Civ. App. LEXIS 43
CourtCourt of Civil Appeals of Oklahoma
DecidedFebruary 12, 2016
DocketCase Number: 113454
StatusPublished

This text of 2016 OK CIV APP 75 (State ex rel. Doak v. Pride National Insurance Co.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Doak v. Pride National Insurance Co., 2016 OK CIV APP 75, 386 P.3d 1058, 2016 Okla. Civ. App. LEXIS 43 (Okla. Ct. App. 2016).

Opinion

BRIAN JACK GOREE, JUDGE:

¶ 1 This appeal arises from the receivership of an insolvent insurance company, Defendant Pride National Insurance Company (Pride). Appellant, Fifth Third Bank (Bank), seeks review of the trial court’s order ordering Bank to turn over to the State of Oklahoma, ex rel. John D. Doak, Insurance Commissioner (Receiver), cash collateral securing Bank’s letter of credit. We hold that under the Insurance Code, Bank was a secured creditor who was entitled to discharge its claim by resort to the security. We reverse the trial court’s order and remand this matter with instructions to grant Bank’s motion for relief from the stay of litigation to allow it to satisfy its secured claim from the cash collateral.

¶ 2 The underlying facts are not in dispute. Pride entered into a quota share reinsurance agreement with CorePointe Insurance Company (CorePointe) in which Pride reinsured 25% of CorePointe’s risk on certain business and received 25% of'the collected net premiums. In return, Pride was responsible for paying CorePointe 25% of the net liability of the subject business.

¶ 3 Pride secured its obligations under the agreement by delivering to CorePointe an irrevocable standby letter of credit issued by Bank in the amount of $250,000. The letter of credit, issued on October 15, 2012, had an expiration date of September 14, 2013, but provided that it would be automatically extended for one year at a time unless Bank notified CorePointe at least 60 days prior to the -expiration date that it would not be extended. Pride pledged a first priority security interest in its savings account, at Bank as collateral for the letter of credit.

¶ 4 Receiver filed his application and obtained an order placing Pride into receivership on March 8, 2013. The order vested Receiver with all of Pride’s property, authorized him to conduct its business, and directed him to rehabilitate Pride. It appointed Donna Wilson as Assistant Receiver. Among other things, the order directed all banks to deliver Pride’s assets to Receiver. It enjoined all persons from transferring or concealing Pride’s assets, and from prosecuting litigation, including making levy against assets.

¶ 5 On Receiver’s application, the trial court entered a liquidation order on July 10, 2013. The order again included general language directing banks to deliver Pride’s assets to Receiver, but it made a specific finding that Assistant Receiver had taken custody of remaining assets.. It cancelled all [1060]*1060direct insurance policies in 31 days, and set a deadline of 180 days for the filing of claims.

¶ 6 On the same day, Assistant Receiver sent an email to Bank’s president, attaching the liquidation order and directing Bank to close certain accounts and wire the funds to a specified account. However, the email also stated, “As Account [Number] ... is collateral for the Letter of Credit, I am not requesting it to be closed at this time.”

¶ 7 The deadline for notice of non-renewal of the letter of credit passed a few days later, on July 16, 2013. In the absence of any action, the letter of credit renewed on September 14, 2013 for one more year by its own terms. On September 17, 2013, Assistant Receiver directed Bank by email, “do not renew Letter of Credit [Number] and .wire the funds held on deposit against the LOC to [specified account].” A few days later, Bank advised Assistant Receiver by email that in order to close the letter of credit, they would need the original letter of credit plus a directive from the beneficiary.

¶ 8 The claims filing deadline, after extensions, passed on April 7, 2014. On-July 10, 2014, CorePointe drew on the letter of credit in the full amount of $250,000. Bank notified Assistant Receiver of the draw. .Bank paid the draw to CorePointe on July 17, 2014, the same day that Receiver’s attorney directed Bank not to pay the draw.

¶ 9 Bank then moved for relief from the stay of litigation and the liquidation order to allow it to offset the- cash collateral against the amount due from Pride under the pledge agreement. Receiver objected to Bank’s motion and countermoved for an order compelling return of Pride’s deposit of $250,000. Receiver asserted that neither CorePointe nor Bank were creditors of Pride on the date of the liquidation order, and them rights were fixed at that time. Receiver argued that Bank had violated the trial court’s order to turn over Pride’s property to Receiver,- and was not entitled, to recover for a claim arising after the liquidation date. Receiver contended that Bank was not a secured creditor of Pride because it had no claim at all against Pride on the date of the liquidation order, and the order itself prevented Bank from becoming a secured creditor.

¶ 10 After a hearing, the trial court denied Bank’s motion and granted Receiver’s motion, ordering Bank to return to Receiver the $250,000 held in Pride’s account. Bank appeals from this order. Its contentions are that the trial court abused its discretion in denying its motion because (1) it is a peidfect-ed, secured creditor under the provisions of the Oklahoma Insurance Code relating to the liquidation of insurers, and (2) its payment of the letter of credit did not violate the trial court’s liquidation order.

¶ 11 The order on appeal refuses to discharge, vacate, or modify an injunction. 12 O.S. Supp. 2013 993(A)(2). In reviewing a trial court’s order granting or denying in-junctive relief, we will examine and weigh the evidence, but we will not disturb the trial court’s judgment unless the trial court has abused its discretion or the decision is clearly against the weight of the evidence. Sharp v. 251st Street Landfill, Inc., 1996 OK 109, ¶ 4, 925 P.2d 546, 549 (overruled on other grounds by DuLaney v. Oklahoma State Dept. of Health, 1993 OK 113, ¶ 1, 868 P.2d 676).

¶ 12 Oklahoma’s Insurance Code, 36 O.S. 2011 1914(A), grants authority to the Insurance Commissioner, as the court-appointed receiver, to take possession of and administer the assets of an insolvent insurer. The receiver’s authority includes conducting the insurer’s business. 1914(E). As receiver, the Insurance Commissioner is vested by operation of law with the title to all of the insurer’s property, contracts, and rights of action, effective on the date of the court’s rehabilitation or liquidation order. 1914(B). A receiver holds the property and funds coming into the receiver’s hands by the same right and title as the person or entity for whose property the receiver has been appointed, subject to the liens, priorities, and equities existing at the time of the court’s order. Flynn v. Lowrance, 1924 OK 1130, ¶ 4, 110 Okla. 150, 236 P. 594, 597. The rights of the insurer and its creditors are fixed as of the date the liquidation order is filed. 1925.

[1061]*1061¶ 13 The Insurance Code requires that a creditor file a proof of claim in order to share in the distribution of the insurer’s- assets. 1918(A) and 1930. A secured creditor of an insurer in receivership may either (1) surrender the security and file a claim as a general creditor, or (2) discharge the claim by resort to the security. 36 O.S. 2011 1919(D). The claim of a secured claimant is allowable only in the amount of the deficiency between the value of the claim and the value of the security as of the date of the liquidation order, unless the claimant surrenders the security and proceeds as an unsecured creditor. 1929(D).

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Related

DuLaney v. Oklahoma State Department of Health
1993 OK 113 (Supreme Court of Oklahoma, 1993)
Sharp v. 251st Street Landfill, Inc.
1996 OK 109 (Supreme Court of Oklahoma, 1996)
First State Bank v. Diamond Plastics Corp.
1995 OK 21 (Supreme Court of Oklahoma, 1995)
Flynn v. Lowrance
1924 OK 1130 (Supreme Court of Oklahoma, 1924)
Cardin v. Farmers Nat. Bank
1928 OK 562 (Supreme Court of Oklahoma, 1928)
In re Pajian
785 F.3d 1161 (Seventh Circuit, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
2016 OK CIV APP 75, 386 P.3d 1058, 2016 Okla. Civ. App. LEXIS 43, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-doak-v-pride-national-insurance-co-oklacivapp-2016.