OPINION
Opinion by
This is an appeal from the dismissal of a plea in intervention. The underlying lawsuit was initially brought by Niel Morgan against Stewart Feldman and his wife, Marla Matz, for domestication and collection of a federal judgment. In an attempt to collect Morgan’s judgment, the trial court imposed a receivership over Feld-man’s interest in another lawsuit in which Feldman was making a claim on an insurance policy. Intermarque Automotive Products, Inc. then filed a plea in intervention in the collection lawsuit, asserting an equitable interest in this receivership asset on the grounds that (1) Intermarque was the owner of the insurance policy at issue, and (2) Feldman would be unjustly enriched if he was allowed to retain the insurance proceeds. The trial court struck Intermarque’s plea in intervention and dissolved the receivership after ensuring the satisfaction of Morgan’s judgment. On appeal, Intermarque contends that the trial court abused its discretion in striking its plea in intervention. After reviewing the record, we affirm the trial court’s dismissal of Intermarque’s plea in intervention.
The record reveals that Stewart Feld-man, Niel Morgan, and Roy Bennion formed Intermarque, a Texas corporation, in 1989. Thereafter, the three men served together as the sole officers, directors, and shareholders of the corporation. In early 1992, Intermarque terminated Feldman’s employment and filed a lawsuit against him due to his alleged wrongful conduct against Intermarque (the “Intermarque-
At this time, Intermarque was the owner of a commercial general liability insurance policy issued by Commercial Union Lloyds of Texas (“Commercial Union”). 1 The policy listed Intermarque as the named insured, and Intermarque’s officers, directors, and shareholders could qualify as additional insureds by definition. Morgan, Bennion, and Feldman all requested Commercial Union to provide their defense in the Intermarque-Feldman lawsuit. Commercial Union denied Feld-man’s claim, while agreeing to provide a defense for Morgan and Bennion under a reservation of rights. In addition, Commercial Union entered into a settlement agreement with Morgan, Bennion, and In-termarque. Pursuant to the agreement, Commercial Union paid $250,000.00 in exchange for the release of most, if not all, of Morgan’s and Bennion’s rights under the policy, and some of Intermarque’s rights under the policy. Intermarque retained all its rights to indemnification, and Feld-man’s rights under the policy were unaffected.
In June 1993, the trial court entered a final judgment in the Intermarque-Feldman lawsuit. 2 The judgment contained the trial court’s finding that Feldman failed to comply with Article 2.02-l(B)(l), (2), <& (C) of the Texas Revised Civil Statutes (the Business Corporation Act). 3 This equated to a finding that Feldman did not conduct himself in good faith, did not reasonably believe his conduct was in Intermarque’s best interest, and improperly received a personal benefit from Intermarque or was otherwise liable to Intermarque for his wrongful conduct. 4 Based on this finding, Feldman was denied indemnification from Intermarque. 5
In December 1993, Feldman filed suit against Commercial Union (the “Commercial Union lawsuit”) for its failure to provide him a defense in the Intermarque-Feldman lawsuit. Feldman asserted claims against Commercial Union for reimbursement of defense costs, breach of contract, wrongful denial of coverage, and other violations of the Texas Insurance Code. The Commercial Union lawsuit remained in dispute for the next five and one-half years.
Meanwhile, in November 1998, Morgan filed the underlying lawsuit against Feld-man and his wife for the collection of a
In June 1999, Feldman obtained a settlement in the Commercial Union lawsuit for an amount that allegedly exceeded the expenses he incurred in defending the Intermarque-Feldman lawsuit. 7 The settlement proceeds automatically became subject to the receivership that had been imposed in the collection lawsuit.
On June 21, 1999, after learning of the settlement, Intermarque filed a plea in intervention in the collection lawsuit. In-termarque asserted an equitable interest in a portion of the settlement proceeds on the grounds that Intermarque was the owner of the Commercial Union insurance policy at issue and Feldman would be unjustly enriched if he was allowed to retain the proceeds. Intermarque pointed out that the trial court.in the Intermarque-Feldman lawsuit found that Feldman had committed wrongdoing against Interm-arque, and the settlement proceeds were the product of Commercial Union’s failure to provide a defense when Feldman was sued for this wrongdoing. As such, In-termarque argued that the settlement proceeds were ultimately the product of Feld-man’s own wrongdoing. Intermarque therefore claimed that a constructive trust should be imposed in its favor over the proceeds that exceeded Feldman’s actual defense costs, so as to prevent Feldman from profiting from his own wrongdoing.
On June 22, 1999, Feldman paid the receiver’s fees and Morgan’s expenses as ordered by the trial court. Feldman thereafter filed a motion to strike Interm-arque’s plea in intervention based on various defenses. 8 After a hearing on the matter, the trial court struck Interm-arque’s plea in intervention, dissolved the receivership, and entered final judgment.
Intermarque now appeals the trial court’s decision and contends that the trial court abused its discretion in striking the plea in intervention.
The Texas Rules of Civil Procedure provide that “[a]ny party may intervene
Once the motion to strike has been filed, the burden then shifts to the intervenor to show a justiciable interest in the lawsuit.
Mendez v. Brewer,
Furthermore, even if a party has a justiciable interest, and thus a right to intervene in a lawsuit, the trial court will still have broad discretion in determining whether his plea in intervention should be struck.
Rogers,
Applying the law to the case at hand, we must first determine whether Intermarque had a right to intervene based on a justiciable interest in the collection lawsuit. If Intermarque had a right to intervene, we must then determine whether it was an abuse of discretion to
In its plea in intervention, Intermarque alleged that it had an interest in the settlement proceeds from the Commercial Union lawsuit based on the grounds that (1) Intermarque was the owner of the Commercial Union insurance policy at issue, 10 and (2) Feldman would be unjustly enriched if allowed to retain the insurance proceeds.
However, the owner of an insurance policy does not necessarily have an interest in the proceeds. Two bankruptcy cases
11
out of the Fifth Circuit Court of Appeals provide helpful guidelines for determining who has an interest in the proceeds of an insurance policy that is owned by the corporation and that insures both the corporation and its directors and officers.
See In re
Vitek,
Inc.,
For example, in
Louisiana World Exposition,
the court held that the corporate owner of a directors’ and officers’ insurance policy did not have an interest in the liability proceeds payable to its directors and officers.
Louisiana World Exposition, Inc.,
On the other hand, in
Vitek
the court stated that the corporate owner of commercial general liability policies owned the liability proceeds of those policies, “irrespective of whether those policies also provide liability coverage for the ... directors and officers.”
Vitek,
In the present case, the insurance proceeds 13 in question are the product of a claim for defense costs, breach of contract, wrongful failure to defend, and other Insurance Code violations. The payment of these proceeds could not have diminished the policy limits so as to increase Interm-arque’s potential exposure. Based on these facts, we conclude that Interm-arque’s ownership of the policy did not give Intermarque a justiciable interest in the settlement proceeds paid to Feldman. 14
Further, the fact that Feldman was unjustly enriched through his own wrongdoing does not by itself give Intermarque a justiciable interest in the settlement proceeds. Generally, a cause of action for unjust enrichment will only be available if the defendant unjustly profited
at the plaintiffs expense. See HECI Exploration Co. v. Neel,
We acknowledge that there are some exceptional cases where a constructive trust is imposed in favor of the plaintiff even though the defendant’s enrichment was
not
at the expense of the plaintiff.
See Kinzbach Tool Co. v. Corbett-Wallace Corp.,
The present case is not one of the aforementioned exceptional cases. A constructive trust is imposed without a showing that the defendant’s unjust enrichment was at the plaintiffs expense only where a person in a fiduciary relationship “acquires property, and the acquisition or retention of the property is in violation of his duty as fiduciary,....” Restatement of Restitution § 190 (emphasis added). See generally Restatement of Restitution Ch. 12. There is no evidence that Feldman’s acquisition or retention of the insurance proceeds was in violation of a fiduciary duty. Intermarque points out that, but for Feld-man’s wrongdoing, he would not have received the proceeds. This is true and perhaps regrettable, but it is immaterial to the issue at hand. To impose a constructive trust under this exception, it must have been a violation of Feldman’s fiduciary duty to acquire or retain the proceeds. The record reflects that Feldman acquired the proceeds through insurance coverage that Intermarque itself voluntarily provided for him. And, there is no evidence that it was a breach of Feldman’s fiduciary duty to retain the proceeds as payment for the insurance company’s failure to defend. Thus, in a strict application of this exception, it cannot be said that Feldman acquired or retained the proceeds in violation of his fiduciary duty.
Moreover, the reasoning behind this limited exception does not support expanding the exception to include the present case. As previously mentioned, a constructive trust is imposed in these exceptional cases for the purpose of preventing a conflict of interest in the mind of a fiduciary by removing any incentive for the fiduciary to breach his duty of loyalty and act in his own best interest.
See
Restatement of Restitution § 197, cmt. c. Yet, in the present case, placing a constructive trust over the insurance proceeds likely would not have removed Feldman’s incentive to
Furthermore, even if this case did fit within the exception, Intermarque could not impose a constructive trust over the insurance proceeds in question. Restitutionary remedies, such as constructive trusts, are not available to “mere volunteers.”
See
Douglas Laycock, Modern AmeRican Remedies 525 (2d ed.1994). It has long been the rule that one cannot voluntarily provide goods and services which one has no duty to provide, and then demand payment as restitution.
See, e.g.,
64 Tex. Jur. 3d
Restitution
§ 44 (1989). Likewise, courts will generally not impose a constructive trust over property in favor of a beneficiary where the fiduciary acquired the property with the consent of his beneficiary and the transaction was fair and reasonable.
18
Restatement of Restitution § 191;
see also Burrow v. Arce,
Therefore, we conclude that Interm-arque’s plea in intervention was not sufficient to allege a justiciable interest in the insurance proceeds in question, because Intermarque had no right to impose a constructive trust over the proceeds. Intermarque did not have the right to intervene in the collection lawsuit, and as such, the trial court had sufficient cause to strike Intermarque’s plea in intervention on Feldman’s request. Accordingly, we affirm the trial court’s dismissal of Intermarque’s plea in intervention.
Notes
. Intermarque was also the owner of a commercial umbrella policy. Only the commercial general liability policy is at issue in this suit.
. As between Feldman and Intermarque only, Feldman obtained a net judgment of $250,-000.00. Feldman obtained a $300,000.00 judgment against Intermarque for payment of services rendered, and Intermarque obtained a $50,000.00 judgment against Feldman for attorney’s fees.
. In a motion to modify our opinion, Feldman contends that these findings were deleted by order of the bankruptcy court. However, Feldman does not direct us to any such bankruptcy court order in the record. Tex.R.App. P. 34.5(c) authorizes appellate courts to supplement the record; however, it does not allow the creation of a new trial court record.
See Graham v. Pazos De La Torre,
. See Tex.Rev.Civ. Stat. Ann. art. 2.02-l(B),(C) (Vernon Supp.2000).
. This finding was made in determining whether Feldman was eligible for indemnification from Intermarque under the Texas Business Corporation Act. When such a finding is made, a corporation generally has no power to indemnify a director or officer. See Tex.Rev.Civ. Stat. Ann. art. 2.02-l(B)(l),(2), & (C). However, a corporation may maintain insurance that indemnifies a director or officer even though the corporation itself has no power to indemnify him. See Tex.Rev.Civ. Stat. Ann. art. 2.02-1 (R) (Vernon Supp.2000).
. At some point, Feldman's former attorneys intervened in the collection lawsuit It is unclear from the record whether the attorneys intervened as judgment creditors of Feldman or merely as parties with a justicia-ble interest in the res of the receivership.
. The settlement agreement is not in the record. However, in its plea in intervention Intermarque alleged that the settlement amount exceeded Feldman’s expenses, and Feldman did not deny this allegation. In determining whether an intervention is appropriate, it is proper for the trial court to rely on the
allegations
of fact in the plea in intervention in conjunction with the
allegations
of fact in the motion to strike.
Metromedia Long Distance, Inc. v. Hughes,
.The defenses asserted in the motion to strike include the following: (1) Intermarque could not have brought this receivership proceeding in its own name because it is not a judgment creditor of Feldman and his wife; (2) Interm-arque has no standing to intervene because it does not own the insurance policy in question; (3) Intermarque is not entitled to relief under the Texas Business Corporation Act; (4) Intermarque is judicially estopped because it failed to list the insurance policy as an asset of its bankruptcy estate; and (5) Interm-arque’s claim is barred by the statute of limitations.
. Although Intermarque acknowledges that the
Guaranty
abuse of discretion standard discussed herein applies to the traditional plaintiff-defendant case, it argues that this standard does not apply to the situation where a plea in intervention asserts a claim against the res of a receivership. Intermarque contends that a litigant
must
file a plea in intervention to assert an interest in the res of a receivership so as to preserve his interest against a purchaser at a receiver’s sale. Intermarque cites persuasive authority in making this argument. See,
e.g., Houston & T.C.R. Co. v. Crawford,
.Feldman contends that Intermarque is not the owner of the policy because Commercial Union bought back the policy pursuant to the settlement agreement. However, the settlement agreement merely purports to release certain claims; it does not purport to assign
ownership
of the policy. Nowhere in the settlement agreement do the parties mention assignment of ownership. Contractual language should be given its plain grammatical meaning unless it definitely appears that the intention of the parties would thereby be defeated.
Reilly v. Rangers Management, Inc.,
. Although this case does not involve a bankruptcy, the reasoning used in bankruptcy cases is applicable to this case because the bankruptcy estate “stands in the shoes” of the debtor, and the estate’s rights are determined under state law.
Sender v. Simon,
. Texas and other states require a corporation to indemnify its directors and officers in certain circumstances. See Tex.Rev.Civ. Stat. Ann. art. 2.02-1 (Vernon Supp.2000).
. Feldman argues that his alleged profit was not in the nature of insurance "proceeds,” because the profit arose from an "extra-contractual claim” that was over and above a claim for breach of contract. However, the analysis we use for determining Interm-arque’s interest in Feldman’s profit applies regardless of what name is given to the money. The issue is whether payment of the money to Feldman increased Intermarque’s exposure.
. In its supplemental brief, Intermarque uses these two Fifth Circuit cases to get the opposite result. Specifically, Intermarque contends that it owns the proceeds of the policy because, as in Vitek, the policy involved in this case is a commercial general liability policy providing liability coverage to both the corporation and its directors and officers. We would agree with Intermarque had this case arisen in bankruptcy court before the proceeds had been paid to the director/officer, as was the situation in Vitek.
Under the terms of the standard commercial general liability policy, the duty to defend terminates once the liability coverage limits are exhausted. Therefore, once the maximum amount of liability proceeds has been paid, the insureds have no right to proceeds for defense costs. However, this rule does not work in reverse-the payment of proceeds for defense costs does not affect the insured's right to liability proceeds.
This distinction is crucial because, in bankruptcy cases, claims for defense costs are pending simultaneously with claims for liability coverage. Thus, because the payment of liability proceeds could immediately terminate any right to proceeds for defense costs, the right to defense proceeds cannot be severed from the right to liability proceeds. For this reason, in bankruptcy cases the corporate policy owner is the owner of all the proceeds.
In the present case, however, the defense-related proceeds have already been paid, so the ownership of these proceeds is not intertwined with the ownership of the liability proceeds. The payment of defense-related proceeds cannot deplete the available liability proceeds. Therefore, once defense proceeds are paid to a director, the corporate owner will generally have no interest in those proceeds.
.Although Intermarque may have been able to make some of the same type of claims against Commercial Union that Feldman made, Intermarque’s claims would be based on its own damages and would not be affected by the settlement of Feldman's personal claims.
. Intermarque argues that discovery of the settlement agreement is needed to determine whether Commercial Union settled Feldman’s claims at the expense of Intermarque. However, as the named insured, Intermarque did not need discovery to determine if its rights and interests under the insurance policy had been compromised.
. Intermarque contends that based on
Burrow v. Arce,
the present case fits within the aforementioned exception, and therefore, a constructive trust can be imposed without a showing that Feldman's enrichment was at Intermarque’s expense. In
Burrow,
the Texas Supreme Court addressed the issue of whether an attorney can be required to forfeit his fee for breach of a fiduciary duty when his client suffered no actual damages due to the breach.
Burrow v. Arce,
The supreme court’s reasoning in Burrow does not provide any additional support for applying the exception to the present case. Admittedly, the exception applies to fiduciary relationships, and Intermarque and Feldman were in a fiduciary relationship. However, as previously mentioned, Feldman did not take the alleged profit in violation of his fiduciary duty to Intermarque. Moreover, imposing a constructive trust over the alleged profit in the present case would not have removed any incentive for Feldman to breach his fiduciary duty. As such, we find no basis for imposing a constructive trust based on Burrow.
. Consent may not preclude the enforcement of a constructive trust if (1) the beneficiary was under an incapacity when he gave his consent, or (2) the beneficiary did not know his rights or the material facts which the fiduciary did know, and the fiduciary did not reasonably believe that the beneficiary knew his rights or the material facts, and the beneficiary had not manifested that he did not care to know them, or (3) the beneficiary’s consent was induced by improper conduct of the fiduciary, or (4) the transaction was not fair and reasonable. Restatement of Restitution § 191(2) (1937).
. The Business Corporation Act states that a corporation, such as Intermarque, has no power and thus no duty to indemnify an officer or director for defense costs, where the officer or director breached a fiduciary duty, as Feldman did. See Tex.Rev.Civ. Stat. Ann. art. 2.02-1 (B)(1),(2), & (C). Yet, the Act further provides that, although there is no duty to do so, a corporation is entitled to furnish insurance that indemnifies its officers and directors in such situations where the corporation would be prohibited from indemnifying them directly. See Tex.Rev.Civ. Stat. Ann. art. 2.02-1 (R). Providing insurance in such situations is supported by public policy, and thus we conclude that it is fair and reasonable for a corporation to do so.