Everhart v. Drake Management, Inc., 78-1428

• Decision Date: 08 October 1980
• Docket Number: No. 78-1428,78-1428
• Citation: 627 F.2d 686
• Parties: Lee A. EVERHART et al., Plaintiffs, v. DRAKE MANAGEMENT, INC. et al., Defendants. UNION COMMERCE, Defendant-Third Party Plaintiff-Appellant, v. FIREMAN'S FUND INSURANCE CO. et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 686

627 F.2d 686

Lee A. EVERHART et al., Plaintiffs, v. DRAKE MANAGEMENT, INC. et al., Defendants.

UNION COMMERCE, Defendant-Third Party Plaintiff-Appellant, v. FIREMAN'S FUND INSURANCE CO. et al., Defendants-Appellees.

No. 78-1428.

United States Court of Appeals, Fifth Circuit.

Oct. 8, 1980.

Wilfred C. Varn, Thomas M. Ervin, Jr., Tallahassee, Fla., for plaintiff.

Fowler, White, Gillen, Boggs, Villareal & Banker, W. Donald Cox, Tampa, Fla., for Fireman's Fund Ins.

John K. Folsom, Tallahassee, Fla., for Albert H. Stephens, Rhodes, and Frederick Bryant.

Hall & Booth, J. Lewis Hall, Tallahassee, Fla., for Travelers Indemnity Co. Stephens, Rhodes & Bryant.

Appeal from the United States District Court for the Northern District of Florida.

Before TUTTLE, BROWN and TATE, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

Union Commerce Bank (Bank), appeals trial court's grant of summary judgment ¹ in favor of insurer, Fireman's Fund Insurance Co. (Insurer), in direct action to recover under terms of blanket bond fidelity insurance contract issued to insured, Commonwealth Corporation (Commonwealth). Bank argues the blanket bond fidelity contract extends coverage to third-party beneficiaries, Florida law strongly favors upholding rights of third-party beneficiaries to insurance contracts, and it is for purposes of the contract a third-party beneficiary. Concluding the fidelity bond does not extend coverage to Bank, we affirm.

Fireman's Fund Covers Commonwealth With Blanket

In late 1972 and early 1973, Commonwealth, who was engaged in the business of placing, funding, and servicing construction and general mortgage loans arranged two loans in the amounts of $800,000 and $975,000 for construction of a building project, Part Twenty West. ² The loans were secured by mortgage notes properly recorded in Leon County, Florida. ³ Joint borrowers were Drake Management, Inc. (Drake) and Commonwealth Capital Corporation (Capital). ⁴ Funding was initially provided by Bank on May 8, 1973, with the understanding the mortgage notes would be reassigned when permanent investors were found. Commonwealth consequently continued to service the loans. ⁵

By the spring of 1974, Commonwealth secured U. S. Life Insurance Company of Texas, North American Life Insurance Company of Chicago, and Old Line Life Insurance Company of America (Life Companies) to act as permanent investors. Closing of this permanent loan was piloted by Commonwealth, and the Life Companies' attorney, Albert H. Stephens of the law firm of Stephens, Rhodes, Bryant, and Durrance. ⁶ Upon closing, bank forwarded to Stephens the loan packages and executed mortgage reassignments in favor of Commonwealth. Bank also directed Stephens, by letter dated April 19, 1974, they "be held in escrow until Union Commerce Bank received payment in full."

Either unaware of, or momentarily ignoring, this letter, Stephens completed closing of the permanent loan transaction on April 22, 1974, receiving $1,800,000 from the Life Companies. Stephens then issued trust account checks for these funds made payable only to Commonwealth which he delivered to Commonwealth. Commonwealth failed to forward these proceeds to Bank, however, depositing them in a general company account which was at that time in a state of over $5,000,000 book balance overdraft. As a result of this deficit, the funds were ultimately used to pay other corporate obligations of Commonwealth. On June 24, 1974, Commonwealth filed for reorganization under Chapter X of the Bankruptcy Act. Lee A. Everhart (Trustee) was appointed trustee in bankruptcy.

On August 9, 1974, Trustee filed in the District Court actions for interpleader and declaratory judgment against Bank and the Life Companies to ascertain whether payment by Capital as co-mortgagor should be made to the permanent lenders or to the construction lender. Also joined as a defendant were Drake Management and Fred Drake, Jr. for unwillingness to make payments on the project. In response, Bank joined Stephens, his law partners, and their professional errors and omissions insurer, Traveler's Indemnity Company, on December 30, 1974. On May 9, 1975, Insurer, which had issued a blanket fidelity bond in favor of Commonwealth and Capital, was joined. Concurrently, Bank counterclaimed against Commonwealth and cross-claimed against all other defendants for the amount owed under the two construction mortgages.

Throughout the duration of 1975, these parties answered Bank's counterclaim and cross-claims, ultimately moving for summary judgment. After oral argument and upon submission of memoranda by the parties, the District Court granted the various motions for summary judgment and entered final judgment on January 4, 1978. Bank appealed, alleging the District Court erred in granting summary judgment in favor of Stephens, Travelers, and Insurer. ⁷ Subsequent to oral argument, however, Stephens, Travelers, and Bank settled, leaving this Court to determine only whether the Court properly granted summary judgment in favor of Insurer.

Before concluding Insurer was entitled to this judgment as a matter of law, the District Court analyzed Bank's contentions for recovery in light of the following policy language:

(Fireman's Fund) . . . agrees with (Commonwealth) . . . with respect to loss sustained by (Commonwealth) . . . to indemnify and hold harmless (Commonwealth) for:

(a) Loss through any dishonest or fraudulent act of any of the Employees, committed anywhere and whether committed alone or in collusion with others, including loss, through any such act of any of the Employees of Property held by the Insured for any purpose or in any capacity and whether so held gratuitously or not and whether or not the insured is liable therefor.

Section 4. This bond is for the use and benefit only of the insured named in the Declarations and the Underwriter shall not be liable hereunder for loss sustained by anyone other than the insured unless the insured, in its sole discretion and at its option, shall include such loss in the Insured's proof of loss. (Emphasis supplied.) . . . ⁸

Based on these provisions, the Court found Bank's request for recovery "was not contemplated by the contracting parties and finds no support in law or public policy" and determined "Bank lacks standing . . . as a condition precedent to recovery by Bank has not been alleged. . . . "

Can Bank Get Under The Recovery Blanket?

Bank now argues the Court erred because (i) Commonwealth's employees committed fraudulent acts, (ii) the blanket fidelity bond issued by Insurer extended coverage to third-party beneficiaries, and (iii) as a third-party beneficiary it is entitled to recover under the policy. To support its contentions, Bank cites Shingleton v. Bussey, 223 So.2d 713 (Fla.1969), which extended coverage to plaintiff as a third-party beneficiary in a direct action under a motor vehicle liability policy issued by defendant insurer. Id. at 717. Citing Florida's strong public policy in favor of upholding rights of third-party beneficiaries to liability insurance contracts ⁹, Bank urges this Court to apply these considerations to blanket bond fidelity insurance policies. Along the way, it contractually distinguishes American Empire Insurance Co. v. Fidelity and Deposit Co., 408 F.2d 72 (5th Cir. 1969).

In contrast, Insurer contends the District Court was correct in granting summary judgment against Bank because (i) Bank lacks standing to bring this action since it is not a named insured on the blanket bond, and (ii) no loss covered under the insuring agreements of the policy has occurred. More specifically, Insurer emphasizes to support its contentions Bank can cite only cases which hold a third party may sue for liability coverage rather than for loss suffered by the named insured. It further claims Commonwealth used the funds to pay legitimate corporate obligations and Bank had no right to payment before any other creditor.

Bank Can't Be Tucked Under The Blanket

When deciding whether to grant a motion for summary judgment, District Court must view the evidence in a light most favorable to the party resisting the motion. Northwest Power Products, Inc. v. Omark Industries, 576 F.2d 83, 85 (5th Cir. 1978); BAW Manufacturing Co. v. Slaks Fifth Avenue Ltd., 547 F.2d 928, 930 (5th Cir. 1977). Thus, the moving party is burdened with establishing the absence of a genuine issue as to material facts. Kennett-Murray Corp. v. Bone, 622 F.2d 887, 892 (5th Cir. 1980); Boazman v. Economics Laboratory, Inc., 537 F.2d 210, 213 (5th Cir. 1976). Summary judgment may be granted only when the moving party has established his right to judgment with such clarity that the nonmoving party cannot recover (or establish the defense) under any discernible circumstance.

Like any contract, insurance policies are construed as a whole. Burton v. State Farm Fire and Casualty Co., 533 F.2d 177, 179, rehearing denied 540 F.2d 1084 (5th Cir. 1976); Moore v. John Hancock Mutual Life Insurance Co., 436 F.2d 823, 828 (5th Cir. 1971); Ellenwood v. Southern United Life Ins. Co., 373 So.2d 392, 395 (Fla.App.1979). The principal consideration is the parties' intention as revealed by the policy's language. Gulf Oil Corp. v. Mobile Drilling Barge, 441 F.Supp. 1, 11, aff'd 565 F.2d 958, 959 (5th Cir. 1975); General Accident Fire & Life Assurance Corp. v. Liberty Mutual Insurance Co., 260 So.2d 249, 263 (Fla. App. 1972). Nevertheless, if the language of a policy is plain and unambiguous, the words will be given their commonly accepted meaning. Garcia v. Queen, Ltd., 487 F.2d 625, 630 (5th Cir. 1973); U. S. Liability Insurance Co. v. Bove, 347 So.2d 678, 680 (Fla. App. 1977). We may not rewrite the contract. American Empire Insurance Co. v. Fidelity and Deposit Co., 408 F.2d 72, 77 (5th Cir. 1969); Blue Cross v. Dysart, 340 So.2d 970, 974 (Fla. App. 1976). The coverage of a fidelity bond cannot be extended by implication, or enlarged by construction beyond...