BancInsure, Inc. v. Federal Deposit Insurance
796 F.3d 1226
| 10th Cir. | 2015Background
- BancInsure issued a D&O policy (May 11, 2007–May 11, 2010) to Columbian Bank and parent CFC with $5,000,000 aggregate limit and an insuring clause covering Loss the Insured Persons are legally obligated to pay.
- The policy contained an insured‑vs‑insured exclusion that expressly excluded claims by “any ... receiver of the Company,” but the regulatory exclusion (which had barred agency/receiver claims) was deleted by a regulatory endorsement that imposed a $5,000,000 sublimit for claims by regulatory or deposit‑insurance organizations and stated it did not alter other policy terms.
- Kansas appointed the FDIC as receiver for Columbian on August 22, 2008; the FDIC‑R later sued former directors for negligence and fiduciary breaches in its capacity as receiver.
- BancInsure, the director‑defendants, and FDIC‑R settled for a $5,000,000 judgment; BancInsure sued for a declaratory judgment that the FDIC‑R’s claims are excluded and denied coverage; parties cross‑moved for summary judgment.
- District court granted BancInsure summary judgment, holding the insured‑vs‑insured exclusion unambiguously bars FDIC‑R claims and that judicial estoppel did not prevent BancInsure from denying coverage; the Tenth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the insured‑vs‑insured exclusion bars FDIC‑R claims | FDIC: exclusion ambiguous when read with (a) shareholder‑derivative exception, (b) regulatory endorsement deleting regulatory exclusion, and (c) BancInsure’s prior statements — thus construed for insured | BancInsure: exclusion plainly and unambiguously excludes claims by a receiver; endorsement does not override other exclusions; prior statements irrelevant absent ambiguity | Court: Held exclusion unambiguous; bars FDIC‑R claims against directors; extrinsic statements inadmissible because no ambiguity |
| Effect of regulatory endorsement that deleted regulatory exclusion and set a sublimit | FDIC/directors: deletion and sublimit evidence intent to provide coverage for FDIC claims and creates ambiguity | BancInsure: endorsement merely permits potential coverage but explicitly does not vary other terms; sublimit does not create coverage when another exclusion applies | Court: Endorsement does not render insured‑vs‑insured ambiguous and does not override explicit receiver exclusion |
| Whether shareholder derivative exception saves FDIC‑R claims | FDIC: FDIC‑R steps into rights of shareholders and thus is like derivative plaintiff; exception implies coverage for derivative‑like claims | BancInsure: exception cannot override explicit language excluding receivers; the policy explicitly names receivers | Court: Rejected argument — presence of derivative exception does not create ambiguity where receiver exclusion is clear |
| Whether BancInsure is judicially estopped from denying coverage due to prior litigation responses | FDIC/directors: BancInsure previously indicated regulatory‑agency/receiver claims would be covered; should be estopped from later denying coverage | BancInsure: prior statements were hypothetical; coverage is a legal question; judicial estoppel applies only to prior factual positions | Court: Judicial estoppel inapplicable because coverage is a legal question and Tenth Circuit limits estoppel to factual positions; district court did not abuse discretion |
Key Cases Cited
- Yousuf v. Cohlmia, 741 F.3d 31 (10th Cir. 2014) (standard of review for summary judgment)
- AMCO Ins. Co. v. Beck, 929 P.2d 162 (Kan. 1996) (contract interpretation and intent of parties governs policy construction)
- Liggatt v. Employers Mut. Cas. Co., 46 P.3d 1120 (Kan. 2002) (primary rule is to ascertain parties’ intent; interpret policy as whole)
- O’Bryan v. Columbia Ins. Grp., 56 P.3d 789 (Kan. 2002) (ambiguous policy terms construed for insured)
- New Hampshire v. Maine, 532 U.S. 742 (2001) (judicial estoppel factors and policy against litigants changing positions)