On May 31, 2017, the Eighth Circuit Court of Appeals released its decision in 3M Company v. National Union Fire Insurance Company of Pittsburgh, PA. The Court affirmed the decision of the U.S. District Court for the District of Minnesota (see our October 13, 2015 post), which had applied a crime policy's ownership condition in ruling that the insured did not have coverage for the loss of investment earnings incurred when an investment entity in which it had a limited partnership interest collapsed due to the entity's principals' Ponzi scheme. The Eighth Circuit's decision provides a good illustration of the interaction between the ownership condition and statutory and common law concepts of "ownership" as they relate to partnerships.
In 1999, 3M began investing its employee benefit plan assets in WG Trading Company LP ("WG Trading"). 3M's investment was structured as a limited partnership in WG Trading. The principals of WG Trading also maintained another entity, WG Trading Investors, LP ("WG Investors"), which was a limited partner in WG Trading. WG Trading was a regulated and audited entity, whereas WG Investors was not.
Unbeknownst to 3M, the principals of WG Trading and WG Investors were running a Ponzi scheme and, over the course of several years, diverted hundreds of millions of dollars from the two entities for their personal use. The SEC and the CFTC initiated civil lawsuits against the WG entities and the principals, and obtained receivership orders. The receiver had considerable success in recovering assets. 3M was able to recover all of the net capital contributions that it had invested in WG Trading.
Nevertheless, 3M took the view that it had still suffered a loss, since at least some of its capital had been invested by WG Trading in legitimate vehicles and had produced legitimate earnings, but 3M was never paid those legitimate earnings. 3M submitted a claim to National Union under its Blanket Crime Policy, and to its excess crime insurers under their follow-form excess policies.
The Ownership Condition
National Union determined that there was no coverage under the policy because, even if the invested funds generated legitimate earnings, the earnings did not fall within the requirements of the ownership condition set out in Endorsement 8 to the policy, which provided, in relevant part, that:
|The insured property may be owned by the Insured, or held by the Insured in any capacity whether or not the Insured is legally liable, or may be property as respects which the Insured is legally liable.|
National Union took the view that, even if 3M's investment with WG Trading generated legitimate earnings that could be quantified and attributed to 3M, those earnings were not (i) owned by 3M; (ii) held by 3M in any capacity; nor (iii) property for which 3M was legally liable. 3M argued that the ownership condition did not apply or, in the alternative, that it could be applied in a manner that would bring the claim within coverage.
Before the Eighth Circuit, 3M's first argument was that the ownership condition did not even apply, as the relevant insuring agreement encompassed "Money, Securities or other property". 3M asserted that the ownership condition did not apply to coverage for theft of "other" property, because the ownership condition only applied to "insured" property, and the insuring agreement did not specify whose "other" property was covered.
The Eighth Circuit, like the District Court before it, made short work of this argument:
|Although the Employee Dishonesty provision does not expressly state whose other property is covered, it is entirely unreasonable to interpret the provision as extending coverage under the Policy to other property that is not insured property. Interpreting the Employee Dishonesty provision as extending to coverage to other property that is not insured property runs afoul of Endorsement 8, which details the property and interests that are covered under the Policy. Thus, when viewed within its context and with common sense, the only reasonable construction of the Employee Dishonesty provision limits coverage under the provision to insured property. Thus, we determine that the ownership requirement of Endorsement 8, which defines insured property, applies to the Employee Dishonesty provision.|
3M's second argument was that, if the ownership condition applied, 3M "owned" the lost earnings because it had a right to possess the earnings and the Court should interpret the condition broadly. The Eighth Circuit rejected this contention as well, essentially adopting the reasoning of the District Court:
|However, up until the point at which the earnings were distributed to the partners, the stolen earnings were property of WG Trading — not property of 3M. It is fundamental that property acquired with partnership funds is partnership property, and individual partners do not own partnership assets until the winding up of the partnership.|
3M's final argument was that it met the ownership condition because it had ERISA fiduciary duties relating to the earnings, which rendered 3M "legally liable" for the earnings within the meaning of Endorsement 8. While the District Court did not address the substance of this argument at first instance, the Eighth Circuit considered the argument on the merits and rejected it, holding that:
|... the ERISA regulation does not alter general commercial property rights, but merely defines the nature and scope of the fiduciary duties owed to plan participants. Thus, this does not affect the ownership nature of WG Trading's partnership assets. [emphasis added; citations omitted]|
As a result, 3M could not bring the lost earnings within the ambit of the ownership condition, and no coverage was available.
The Eighth Circuit's decision in 3M provides two key findings of assistance to fidelity insurers. First, it rejects the contention that the ownership condition acts as anything other than a pre-condition for recovery under a fidelity policy. Insureds (or their counsel) occasionally contend that there is a dichotomy between an insuring agreement and the ownership condition. The ownership condition, like other conditions in a crime policy, is intended to clarify the coverage provided under insuring agreements. Here, the Court recognized that the ownership condition was to be construed in harmony with, and supportive of, the relevant insuring agreement, and explained why the insured's attempt to distinguish between "other property" and "insured property" was without merit. A loss must fall within an insuring agreement, and must also meet the ownership condition, in order to trigger coverage.
Second, the Eighth Circuit affirmed the District Court's analysis of the limited partnership agreements in issue (and its application of state law) in concluding that what 3M actually "owned" was not any of WG Trading's assets, but rather a limited partnership interest in WG Trading itself, with only the possibility of future receipt of earnings upon distribution.
The same general principles of partnership law apply in Canadian common law jurisdictions such as Ontario. For example, subsection 21(1) of the Ontario Partnerships Act makes it clear that partnership property is legally distinct from property owned by the partners themselves. Thus, it is arguable that a similar result should follow, were such a claim to be litigated north of the border.
[Editors' Note: Our guest co-author, John Tomaine, is the owner of John J. Tomaine LLC, a fidelity insurance and civil mediation consultancy in New Jersey. After over thirty-one years with the Chubb Group of Insurance Companies, he retired as a Vice President in 2009. He is an attorney admitted in Connecticut and New Jersey, and holds a Master's Degree in Diplomacy and International Relations. He is available to serve as an expert witness in fidelity claim litigation and to consult on fidelity claim and underwriting matters.]
3M Company v. National Union Fire Insurance Company of Pittsburgh, PA., 2017 WL 2347105 (8th Cir.)
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