Category Archives: Ownership

3M: Eighth Circuit applies Crime Policy’s Ownership Condition in finding No Coverage for Loss of Undistributed Limited Partnership Earnings in Investment Fraud

By David S. Wilson, John Tomaine and Chris McKibbin

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.

The Facts

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.

Conclusion

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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3M: U.S. District Court applies Ownership Provision in finding No Coverage for Loss of Undistributed Limited Partnership Earnings in Investment Fraud

By David S. Wilson, John Tomaine and Chris McKibbin

[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. He will be a speaker at the FSLC’s Fall 2015 meeting in Washington D.C.]

In 3M Company v. National Union Fire Insurance Company of Pittsburgh, PA, the U.S. District Court for the District of Minnesota considered and applied a crime policy’s Ownership Provision in concluding that the insured did not have coverage for the loss of investment earnings suffered when an investment entity in which it had a limited partnership interest collapsed due to its principals’ Ponzi scheme. The decision provides an example of the interaction between the Ownership Provision and statutory and common law concepts of “ownership” as they relate to partnerships.

The Facts

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.

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. In 2009, 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; in fact, 3M was able to recover 100 per cent of its net capital contributions to WG Trading.

Nevertheless, 3M took the view that it had still suffered a loss, because 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.

The Ownership Provision

3M submitted a claim to National Union under its Blanket Crime Policy, and to its excess crime insurers under their follow-form excess policies. National Union determined that there was no coverage under the Crime Policy because, even if the invested funds generated legitimate earnings, the earnings did not fall within the condition of the Ownership Provision set out in Endorsement 8 to the policy, which provided 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 neither owned by 3M nor held by 3M in any capacity, nor were they property for which 3M was legally liable. 3M argued that the Ownership Provision did not apply or, in the alternative, that it could be applied in a manner that would bring the claim within coverage.

3M initially contended that the Ownership Provision did not even apply to the claim, because it applied only to “insured property”, whereas the Employee Dishonesty insuring agreement encompassed “direct losses of Money, Securities or other property caused by Theft or forgery”. Similarly, Theft was defined as “the unlawful taking of Money, Securities or other property”. 3M contended that, because the Employee Dishonesty insuring agreement and the definition of Theft used the term “other property” rather than “insured property”, the Ownership Provision had no application in the circumstances.

The Court quickly dismissed this argument, holding that:

Clearly, then, Endorsement 8 is not intended to define “insured property,” as 3M’s argument implies. Instead, Endorsement 8 simply uses the term “insured property” to limit the coverage afforded under the “Employee Dishonesty” insuring agreement. And giving that phrase its plain and ordinary meaning, … the phrase “insured property” can only be understood as a shorthand way of saying “property whose loss is insured under this Policy”—that is, property that is insured under at least one of the insuring agreements in the Policy, such as the “Employee Dishonesty” insuring agreement.

Indeed, because “insured property” is not a defined term, the Court is at a loss to know what else it could mean. If it does not refer to property whose loss is insured under one or more of the various insuring agreements, then the Policy itself becomes nonsensical.

Did 3M “Own” the Earnings?

The more conceptually interesting ruling in the Court’s decision concerned whether 3M’s earnings came within the Ownership Provision. National Union contended that they did not, as 3M only owned a limited-partnership interest in WG Trading itself, rather than any of WG Trading’s assets. The Court accepted National Union’s position, holding that:

… what 3M owned was a limited-partnership interest in WG Trading. Up until the point at which earnings were distributed to the partners, the earnings of WG Trading were owned by WG Trading, and not by 3M or any of the other limited partners.

As noted, 3M’s investment was structured as a limited-partnership interest in WG Trading. WG Trading’s partnership agreements are governed by Delaware law [which] is crystal clear that a limited partner such as 3M has “no interest in specific limited partnership property.” The partner’s right to receive distributions of the partnership’s assets does not change this fact.

Consequently, the lost earnings were not “owned” by 3M within the meaning of the crime policy, and the insurers had no obligation to indemnify 3M.

“Legally Liable”

In a footnote, the Court noted that 3M had argued for the first time in its reply brief that it had fiduciary duties in respect of the lost earnings and, therefore, the earnings fell within the “property as respects which the Insured is legally liable” part of the Ownership Provision. The Court, relying on established authority, stated that it would not consider this argument, as it had been raised for the first time in 3M’s reply brief.

Conclusion

3M provides two key findings of assistance to fidelity insurers. First, it rejects the contention that the Ownership Provision acts as anything other than a pre-condition for recovery under the policy. In our view, 3M’s argument on this point was without merit, insofar as it attempted to draw an artificial distinction between the term “insured property” as used in the Provision, and the term “other property” as used in the relevant insuring agreement and the definition of Theft. A loss must fall within an insuring agreement and must also meet the Ownership Provision.

Second, and more importantly, the Court carefully analyzed the limited partnership agreements, and applied 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. Subsection 7(2) of the Ontario Limited Partnerships Act states that a limited partner’s interest in the limited partnership is distinct personal property, while 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 the same result should follow, were such a claim to be litigated north of the border.

3M Company v. National Union Fire Insurance Company of Pittsburgh, PA., 2015 WL 5687879 (D. Minn.)

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