Annett Holdings Inc. v. Kum & Go

• Citation: 801 N.W.2d 499
• Decision Date: 23 August 2011
• Docket Number: No. 09–0905.,09–0905.
• Parties: ANNETT HOLDINGS, INC., Appellant,v.KUM & GO, L.C., Appellee.
• Court: United States State Supreme Court of Iowa

801 N.W.2d 499

ANNETT HOLDINGS, INC., Appellant,
v.
KUM & GO, L.C., Appellee.

No. 09–0905.

Supreme Court of Iowa.

July 8, 2011.Rehearing Denied Aug. 23, 2011.

[801 N.W.2d 500]

Bruce E. Johnson and James M. Ballard of Cutler Law Firm, P.C., West Des Moines, for appellant.Michael A. Dee and Haley R. Van Loon of Brown, Winick, Graves, Gross, Baskerville & Schoenebaum, P.L.C., Des Moines, for appellee.MANSFIELD, Justice.

A dishonest employee of a trucking company put money in his pocket while claiming to be buying fuel for his fellow employees. This fraud was perpetrated at a truck stop, where the employee used his company credit card to obtain cash while reporting purchases of fuel. The truck stop paid out the cash, accepting the employee's bogus explanation that the money was for other employees' fuel purchases, and was reimbursed pursuant to its contract with the card issuer. The card issuer in turn was reimbursed under a separate contract with the trucking company's parent. After the fraud had been ongoing for several years, it was discovered, and the employee was arrested and convicted of theft.

The trucking company's parent now seeks to reverse the contractual flow of dollars by suing the truck stop both for negligence and as an alleged third-party beneficiary of the contract between the card issuer and the truck stop. We agree with the district court that the economic loss rule bars the negligence claim and that the trucking company's parent was not a third-party beneficiary of the contract between the card issuer and the truck stop. Accordingly, we affirm the summary judgment granted to the truck stop below.

I. Background Facts and Proceedings.

Annett Holdings, Inc. is an Iowa holding company. One of its subsidiaries is TMC

[801 N.W.2d 501]

Transportation, a trucking company that employed Michael Vititoe as a shag driver at the Clow Valve plant in Oskaloosa. Vititoe's duties as a shag driver consisted of moving empty and loaded semi-tractor trailers within the yard of the Clow Valve plant, facilitating the loading and unloading of trailers, and facilitating the transportation of Clow Valve products by other TMC drivers to outside destinations. TMC provided Vititoe a truck along with a Comdata credit card to purchase fuel for the truck.

Annett and Comdata had a written agreement. Under the agreement, Comdata provided cards that could be used by authorized Annett employees to purchase fuel and obtain cash advances at any Comdata authorized service center locations. Annett agreed to accept full responsibility for all purchases made with those cards and also to be “fully responsible for the unauthorized or fraudulent use thereof until such time as Comdata has received such notification from [Annett] provided that each fraud or misuse is not attributed to Comdata.” Annett also agreed to “hold Comdata harmless from any and all liability resulting from the acts of any employees or agents of [Annett] which acts shall include but are not limited to negligent acts of such persons.” A separate schedule, signed by both parties, clarified that the Annett/Comdata agreement extended to Annett's TMC subsidiary.

Comdata in turn had a written contract with Kum & Go, L.C. that enabled a particular Kum & Go store in Oskaloosa to handle Comdata transactions. The agreement provided that this Kum & Go service center would lease a Comdata terminal for $80 per month, which would then be utilized for Comdata card transactions. Comdata would reimburse Kum & Go for those transactions after deducting certain fees. The agreement contained detailed procedures that Kum & Go promised to follow in processing Comdata transactions. The Comdata/Kum & Go agreement was governed by Tennessee law.

From November 2002 to April 2006, while Vititoe was employed by TMC, he went to the Kum & Go in Oskaloosa on an almost daily basis. Store personnel allowed Vititoe to operate the Comdata terminal himself. Vititoe managed to steal money by entering fuel purchases on the Comdata machine and submitting cash advance slips printed out by the machine to the store clerks—who then paid Vititoe in cash. Kum & Go personnel wondered why Vititoe was getting cash back while reporting fuel purchases. He claimed he was doing so because he was a “regional supervisor” and needed cash to pay for other employees' fuel purchases because the other employees did not have cards of their own.

Vititoe's Comdata transactions were reported, reviewed, and validated daily by TMC's fuel manager. For reasons that are not clear, the pre-March 2006 fuel manager never noticed (or at least never did anything about) Vititoe's suspicious activity. In March 2006, a new fuel manager took over. Almost immediately, he noticed Vititoe's pattern of “buying” fuel every day, even on weekends when he was supposedly not working and despite the fact Vititoe was only a local shag driver.

On April 10, 2006, a TMC employee followed Vititoe and observed him using the Comdata card, but not putting any gas in his truck. The police were contacted, and they interviewed Vititoe, who admitted he had stolen money from his employer by misusing the gas card. Vititoe was arrested and charged with first-degree theft. He was subsequently convicted of theft, sentenced to one month incarceration, and ordered to pay restitution of $298,524.79.

[801 N.W.2d 502]

Annett filed a petition against Kum & Go alleging, among other theories, negligence and breach of contract for the monetary losses it suffered through Vititoe's theft. Annett's negligence theory asserted that Kum & Go was negligent in providing cash to Vititoe and that Vititoe did not have actual or apparent authority to receive cash back on Comdata transactions. In its breach of contract claim, Annett alleged it was an intended third-party beneficiary of the contract between Kum & Go and Comdata, and Kum & Go had breached the terms of the contract by failing to comply with its procedures.

Kum & Go moved for summary judgment. Kum & Go argued it could not be liable in negligence due to the “economic loss rule” and because it owed no duty to Annett. Kum & Go also denied Annett was a third-party beneficiary of its contract with Comdata.

The district court granted summary judgment to Kum & Go. It found the negligence claim barred by the economic loss rule. It rejected the breach of contract claim on the ground that Annett was not an intended beneficiary of the Comdata/Kum & Go contract. Annett appeals.

II. Standard of Review.

The district court disposed of the case on summary judgment. We review rulings on summary judgment motions for errors at law. Ranes v. Adams Labs., Inc., 778 N.W.2d 677, 685 (Iowa 2010). “We examine the record to determine whether a material fact is in dispute and, if not, whether the district court properly applied the law.” Id.

III. Analysis.

A. Economic Loss Rule. In this case, Annett seeks to recover an economic loss. No one was injured; no property was damaged or destroyed. Rather, Vititoe made unauthorized withdrawals of cash that were charged to Comdata and ultimately to Annett. Annett now claims that Kum & Go was negligent in failing to prevent this unauthorized activity, which resulted, indirectly, in economic losses to Annett.

Notably, Annett had entered into a contract with the card provider, Comdata, which in turn had entered into a contract with Kum & Go. In the contract with Comdata, Annett assumed responsibility for unauthorized or fraudulent use of Comdata cards by its own employees. Annett does not dispute that this contract bars it from recovering against Comdata, but seeks now to recover in tort from the remote party with which Comdata contracted—Kum & Go.

We are unaware of a parallel to this claim in our reported case law, but other appellate courts have recently addressed and rejected similar claims. In Cumis Insurance Society, Inc. v. BJ's Wholesale Club, Inc., 455 Mass. 458, 918 N.E.2d 36 (2009), the Massachusetts Supreme Judicial Court considered claims brought by credit unions and their insurer against a retailer (BJ's) that had improperly stored credit card data in a manner that allowed thieves to access the data, resulting in fraudulent use of the credit cards. The credit unions and their insurer had to absorb the losses from the fraudulent use, so they sued BJ's, alleging that its negligence and its failure to follow the express terms of its own agreement with its merchant bank had enabled this criminal activity. Cumis, 918 N.E.2d at 39–40. The court found the economic loss rule barred the negligence claims, rejecting the plaintiffs' attempt to overcome that rule by arguing that tangible personal property damage (in addition to economic loss) was involved because the compromised credit cards had to be replaced and reissued. Id. at 46–47;

[801 N.W.2d 503]

accord Sovereign Bank v. BJ's Wholesale Club, Inc., 533 F.3d 162, 176–77, 179–80 (3d Cir.2008) (reaching the same result in a case filed against BJ's under Pennsylvania law); see also Azur v. Chase Bank, USA, Nat'l Ass'n, 601 F.3d 212, 213–14 (3d Cir.2010) (holding that Pennsylvania law barred a credit card account holder from suing a bank for negligently allowing the holder's personal assistant to misappropriate over $1 million through fraudulent transactions); In re TJX Cos. Retail Sec. Breach Litig., 564 F.3d 489, 498–99 (1st Cir.2009) (applying Massachusetts law); Huggins v. Citibank, N.A., 355 S.C. 329, 585 S.E.2d 275, 276–77 (2003) (holding an individual could not bring a negligence claim against credit card issuer for negligently issuing a card to a person who had stolen the individual's identity).¹

As a general proposition, the economic loss rule bars recovery in negligence when the plaintiff has suffered only economic loss. Neb. Innkeepers, Inc. v. Pittsburgh–Des Moines Corp., 345 N.W.2d 124, 126 (Iowa 1984). In Nebraska Innkeepers, we acknowledged “[t]he well-established general rule is that a plaintiff who has suffered only economic loss due to...