Guttman v. Constr. Program Grp. (In re Railworks Corp.)

• Decision Date: 28 July 2014
• Docket Number: No. 13–1931.,13–1931.
• Citation: Guttman v. Constr. Program Grp. (In re Railworks Corp.), 760 F.3d 398 (4th Cir. 2014)
• Parties: In re RAILWORKS CORPORATION, Debtor. ZVI Guttman, Litigation Trustee, Plaintiff–Appellee, v. Construction Program Group, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

760 F.3d 398

In re RAILWORKS CORPORATION, Debtor.ZVI Guttman, Litigation Trustee, Plaintiff–Appellee,

v.Construction Program Group, Defendant–Appellant.

No. 13–1931.

United States Court of Appeals, Fourth Circuit.

Argued: March 18, 2014.

Decided: July 28, 2014.

ARGUED:Annapoorni Rohini Sankaran, Greenberg Traurig, LLP, Houston, Texas, for Appellant. Zvi Guttman, Law Offices of ZVI Guttman, PA, Baltimore, Maryland, for Appellee. ON BRIEF:Lori Simpson, Law Office of Lori Simpson, LLC, Baltimore, Maryland; Elliot H. Scherker, Greenberg Traurig, P.A., Miami, Florida, for Appellant. Richard M. Goldberg, Shapiro, Sher, Guinot & Sandler, Baltimore, Maryland, for Appellee.

Before KEENAN and FLOYD, Circuit Judges, and MAX O. COGBURN, JR., United States District Judge for the Western District of North Carolina, sitting by designation.

Reversed and remanded with instructions by published opinion. Judge FLOYD wrote the opinion, in which Judge KEENAN and Judge COGBURN joined.

FLOYD, Circuit Judge:

This appeal concerns the efforts of Zvi Guttman, the Chapter 11 Litigation Trustee for the estate of Railworks Corporation (Railworks), to avoid and recover premium payments that Railworks transferred to the Construction Program Group (CPG), which later transferred them to TIG Insurance Company (TIG). Railworks made the transfers within ninety days before Railworks filed for bankruptcy protection.

The bankruptcy court granted summary judgment in favor of CPG, thus preventing Guttman from avoiding and recovering the premium payment transfers to CPG. The district court vacated the bankruptcy court's grant of summary judgment and remanded the case to the bankruptcy court for further proceedings. CPG then noted this appeal. We have jurisdiction over the matter under 28 U.S.C. § 1291.

For the reasons that follow, we hold that the bankruptcy court's grant of CPG's summary judgment motion was proper. As such, we reverse the district court's decision and remand with instructions to reinstate the bankruptcy court's judgment.

I.

Railworks is a national provider of rail systems services. On September 20, 2001, it filed a petition for reorganization under Chapter 11 of the Bankruptcy Code. TIG provided general liability, automobile, and workers' compensation insurance to Railworks. CPG was TIG's managing general underwriter.

Before CPG became TIG's managing general underwriter, Sherwood Insurance Services (Sherwood) and TIG entered into a General Agency Agreement (Agreement), with an effective date of December 15, 1996, in which Sherwood agreed to provide to TIG its “expertise in soliciting, developing, marketing, underwriting, and issuing contracts of insurance.” The Agreement provided that Sherwood would collect, receive, and account for the premiums on the insurance policies. Because CPG at some point became Sherwood's successor in interest, the relationship that previously existed between Sherwood and TIG became one between CPG and TIG, with the Agreement continuing to define the relationship between the two parties. We set forth the relevant portions of the Agreement below.

First, section 1.2 allowed CPG, among other things, “to effect cancellation and non-renewal of Policies.”

Second, section 3.4 stated that CPG would “not act as an insurer for any insureds, and th[e] Agreement shall not be construed as an insurance policy or any contract or agreement of indemnity of insureds.”

Third, under section 5.1, CPG “shall be liable for and shall pay to [TIG] all net premiums attributable to the Policies produced hereunder, whether or not such premiums have been collected by [CPG] less Commissions, as defined in section 6.1 of th[e] Agreement.”

Fourth, according to section 5.2:

All premiums collected by [CPG] are the property of [TIG] and shall be held in trust on behalf of [TIG] in a fiduciary capacity (“Premium Trust Funds”) and shall be deposited and maintained in an account separate and segregated from [CPG's] own funds or, at [CPG's] option, the Premium Trust Funds may be maintained in a pooled account maintained by affiliates of [CPG] for the investment of fiduciary funds (the “Premium Trust Account”). The Premium Trust Account shall be maintained in an account at least equal to the premiums (unpaid to [TIG] ), and return premiums (unpaid to policyholders or insureds) received by [CPG] less return premiums due to cancellations and endorsements. After such funds have been deposited into the Premium Trust Account, [CPG] may deduct from such account the appropriate Commission. The privilege of retaining Commission shall not be construed as changing this fiduciary relationship.

[TIG] authorizes [CPG] to retain premiums in an interest-bearing trust account in a non-affiliated bank approved by [TIG] in writing which meets the “Premium Trust Account Guidelines,” ... with interest payable to [CPG] until such amounts are due to [TIG] as set forth [in another section of the Agreement], and to deduct Commissions from the premiums so collected.

[CPG] shall be responsible for full compliance with all applicable laws, regulations, rules, and requirements regarding the Premium Trust Funds.

And finally, section 6.1 provided that TIG would pay to CPG “a Commission on gross premiums for all Policies written and received pursuant to the Commission Schedule.”

Guttman filed a complaint seeking to avoid and recover the premium payment transfers that Railworks made to CPG during the ninety days preceding Railworks' filing of its Chapter 11 bankruptcy petition. The parties later filed cross-motions for summary judgment. Having considered the parties' motions, the bankruptcy court denied Guttman's motion for summary judgment and granted CPG's motion. This had the effect of not allowing Guttman to avoid and recover the premium payments that Railworks transferred to CPG during the ninety days before Railworks' filing for bankruptcy. On appeal, the district court vacated and remanded the bankruptcy court's judgment. CPG then filed this timely appeal.

II.

There are two bankruptcy statutes at play in this appeal: the preference avoidance statute, 11 U.S.C. § 547, and the recovery statute, id. § 550.

A.

Section 547 defines certain transfers that were made out of the debtor's estate before the filing of the bankruptcy petition as “preferences” and allows the trustee to avoid them. Vogel v. Russell Transfer, Inc., 852 F.2d 797, 798 (4th Cir.1988). As explained by the House Committee on the Judiciary regarding the Bankruptcy Reform Act of 1978, and relied upon by the Supreme Court in Union Bank v. Wolas,

A preference is a transfer that enables a creditor to receive payment of a greater percentage of his claim against the debtor than he would have received if the transfer had not been made and he had participated in the distribution of the assets of the bankrupt estate. The purpose of the preference section is two-fold. First, by permitting the trustee to avoid prebankruptcy transfers that occur within a short period before bankruptcy, creditors are discouraged from racing to the courthouse to dismember the debtor during his slide into bankruptcy. The protection thus afforded the debtor often enables him to work his way out of a difficult financial situation through cooperation with all of his creditors. Second, and more important, the preference provisions facilitate the prime bankruptcy policy of equality of distribution among creditors of the debtor. Any creditor that received a greater payment than others of his class is required to disgorge so that all may share equally. The operation of the preference section to deter “the race of diligence” of creditors to dismember the debtor before bankruptcy furthers the second goal of the preference section—that of equality of distribution.

502 U.S. 151, 160–61, 112 S.Ct. 527, 116 L.Ed.2d 514 (1991) (quoting H.R.Rep. No. 95–595, 177–78 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6137–38).

Under § 547(b),

there are six elements that must be proved in order for a transfer to be set aside as preferential. The transfer must have been: (1) of an interest of the debtor in property; (2) to or for the benefit of a creditor; (3) for or on account of an antecedent debt owed by the debtor before the transfer was made; (4) made while the debtor was insolvent; (5) made on or within ninety days of the filing of the bankruptcy petition; and (6) it must enable the creditor to receive a greater percentage of its claim than it would under the normal distributive provisions in a liquidation case under the Bankruptcy Code.

Morrison v. Champion Credit Corp. (In re Barefoot ), 952 F.2d 795, 798 (4th Cir.1991).

B.

As set forth in § 550(a)(1):

to the extent that a transfer is avoided under section 547 ... of this title, the trustee may recover, for the benefit of the estate, the property transferred, or, if the court so orders, the value of such property, from—

(1) the initial transferee of such transfer or the entity for whose benefit such transfer was made.

11 U.S.C. § 550(a)(1).

“The Bankruptcy Code does not define the term ‘initial transferee.’ This Court applies the ‘dominion and control’ test to determine whether an entity qualifies as the ‘initial transferee.’ ” Grayson Consulting, Inc. v. Wachovia Sec., LLC (In re Derivium Capital LLC ), 716 F.3d 355, 362 (4th Cir.2013) (quoting Bowers v. Atlanta Motor Speedway, Inc. (In re Se. Hotel Props. Ltd. P'ship ), 99 F.3d 151, 155–56 (4th Cir.1996)). Under this test, “an initial transferee must (1) have legal dominion and control over the property—e.g., the right to use the property for its own purpose— and (2) exercise this legal dominion and control.” Id. “[A] party cannot be an initial transferee if he is a ‘mere conduit’ for the party who had a direct business relationship with the debtor.” In re Se. Hotel Props. Ltd. P'ship, 99 F.3d at 155.

“[T]he entity for whose benefit the transfer was made cannot be a subsequent transferee of the property, but rather ‘is a guarantor or...