BancorpSouth Inc. v. Federal Insurance Company
Filing
Filed opinion of the court by Judge Bauer. AFFIRMED. Diane P. Wood, Chief Judge; William J. Bauer, Circuit Judge and Diane S. Sykes, Circuit Judge. [6876076-1] [6876076] [17-1425]
Case: 17-1425
Document: 28
Filed: 10/12/2017
Pages: 12
In the
United States Court of Appeals
For the Seventh Circuit
No. 17‐1425
BANCORPSOUTH, INCORPORATED,
Plaintiff‐Appellant,
v.
FEDERAL INSURANCE COMPANY,
Defendant‐Appellee.
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:16‐cv‐01871‐SEB‐DML — Sarah Evans Barker, Judge.
ARGUED SEPTEMBER 7, 2017 — DECIDED OCTOBER 12, 2017
Before WOOD, Chief Judge, and BAUER and SYKES, Circuit
Judges.
BAUER, Circuit Judge. On May 18, 2010, Shane Swift filed a
class action lawsuit on behalf of himself and others similarly
situated against BancorpSouth, Incorporated (“Bancorp”) in
the Northern District of Florida based upon its assessment and
collection of excessive overdraft fees. On February 24, 2016,
Case: 17-1425
Document: 28
Filed: 10/12/2017
2
Pages: 12
No. 17‐1425
Bancorp and Swift entered into a settlement agreement
wherein Bancorp agreed to pay $24 million to the settlement
class. Bancorp had previously notified its insurer, Federal
Insurance Company (“Federal”), that it sought coverage for
defending the lawsuit, and eventually, to indemnify the
settlement costs. Federal denied all coverage, and conse‐
quently, Bancorp filed a complaint against Federal alleging
breach of contract, as well as bad faith denial of coverage.
Federal filed a motion to dismiss the complaint, citing an
exclusion of coverage in their policy with Bancorp for any
claim “based upon, arising from, or in consequence of any fees
or charges.” The district court granted Federal’s motion to
dismiss, and Bancorp appealed. We affirm.
I. BACKGROUND
Bancorp, a Mississippi corporation, is a financial institution
which provides, among other things, checking and savings
accounts to individuals. In November of 2009, Bancorp
purchased a bankers’ professional liability insurance policy
from Federal. The first paragraph of the policy, titled “Insuring
Clause,” outlined Federal’s obligation under the policy:
[Federal] shall pay, on behalf of an Insured, Loss
on account of any Claim first made against such
Insured during the Policy Period … for a
Wrongful Act committed by an Insured or any
person for whose acts the Insured is legally
liable while performing Professional Services,
including failure to perform Professional Ser‐
vices.
Case: 17-1425
No. 17‐1425
Document: 28
Filed: 10/12/2017
Pages: 12
3
Under the policy, a “Claim” is defined, inter alia, as a
“written demand for monetary damages,” or “a civil proceed‐
ing commenced by the service of a complaint or similar
pleading” brought on behalf of a customer. “Loss” is defined
as “the amount that an Insured becomes legally obligated to
pay on account of any covered Claim,” which includes both
settlement costs, as well as “Defense Costs” or attorneys’ fees.
The policy also contained a number of exclusions from
coverage, only one of which is relevant here. The relevant
exclusion stated that Federal “shall not be liable for Loss on
account of any Claim … based upon, arising from, or in
consequence of any fees or charges” (“Exclusion 3(n)”).
On May 18, 2010, Shane Swift, on behalf of himself and
others similarly situated, filed a lawsuit against Bancorp in the
Northern District of Florida (“Swift Complaint”). The Swift
Complaint’s opening allegation stated: “This is a civil action
seeking monetary damages, restitution and declaratory relief
from [Bancorp] arising from its unfair and unconscionable
assessment and collection of excessive overdraft fees.” The
Swift Complaint alleged that Bancorp maximized the amount
of overdraft fees it could charge customers through a variety
of means, policies, and procedures. First, according to the Swift
Complaint, Bancorp reordered debits from highest to lowest,
instead of chronologically. Second, Bancorp failed to provide
accurate balance information, and purposefully delayed
posting transactions. Third, Bancorp failed to notify customers
of overdrafts, despite having the capability to ascertain at the
point of sale whether there were sufficient funds in a cus‐
tomer’s account. Finally, Bancorp failed to make their custom‐
Case: 17-1425
4
Document: 28
Filed: 10/12/2017
Pages: 12
No. 17‐1425
ers aware that they can opt out of Bancorp’s overdraft policy
upon request.
The Swift Complaint asserted claims for breach of contract,
unconscionability, conversion, unjust enrichment, and a
violation of the Arkansas Deceptive Trade Practice Act.
Importantly, Swift sought to represent a class of “[a]ll Bancorp‐
South customers in the United States who … incurred an
overdraft fee as a result of BancorpSouth’s practice of re‐
sequencing debit card transactions from highest to lowest.”
On February 24, 2016, Bancorp and Swift entered into a
settlement agreement. Bancorp agreed to pay $24 million to the
class plaintiffs to resolve all the claims, $8.4 million of which
was set aside for attorney’s fees, plus $500,000 in class adminis‐
trative costs.
Bancorp notified Federal of the Swift Complaint and sought
coverage for both defending the lawsuit, and indemnifying the
cost of settlement. Federal denied all coverage.
Bancorp then filed a complaint alleging two breach of
contract claims: that Federal breached its duty under the policy
to defend against the Swift Complaint and pay attorneys’ fees
(Count One); and, that Federal breached the duty to indemnify
Bancorp for the cost of settlement (Count Two). Additionally,
the complaint alleged bad faith denial of coverage by Federal
(Count Three). Federal filed a Rule 12(b)(6) motion to dismiss
for failure to state a claim on the grounds that Swift’s claims
regarding the overdraft fees were excluded from coverage
under Exclusion 3(n) since the claims were “based upon,
arising from, or were in consequence of fees or charges.”
Case: 17-1425
Document: 28
Filed: 10/12/2017
No. 17‐1425
Pages: 12
5
The district court found that Exclusion 3(n) unambiguously
excludes from coverage losses arising from fees. Accordingly,
since the claims alleged in the Swift Complaint arose from the
imposition of excessive overdraft fees, the district court ruled
that Exclusion 3(n) applied, and Federal had no duty to defend
or indemnify. Thus, the district court dismissed the two breach
of contract claims, and also dismissed the bad faith claim since
there was no longer an underlying contractual breach upon
which Bancorp could recover. Bancorp timely appealed.
II. DISCUSSION
We review de novo the district court’s order granting a
motion to dismiss under Rule 12(b)(6), accepting as true all
well‐pleaded factual allegations and drawing all reasonable
inferences in favor of the plaintiff. Alamo v. Bliss, 864 F.3d 541,
548–49 (7th Cir. 2017). To avoid dismissal, the complaint must
“state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
“A federal court sitting in diversity ‘must attempt to resolve
issues in the same manner as would the highest court of the
state that provides the applicable law.’” Netherlands Ins. Co. v.
Phusion Projects, Inc., 737 F.3d 1174, 1177 (7th Cir. 2013)
(quoting Stephan v. Rocky Mountain Chocolate Factory, Inc., 129
F.3d 414, 416–417 (7th Cir. 1997)). Here, the parties agree that
Mississippi law applies, under which “[t]he interpretation of
an insurance policy is a question of law.” Noxubee Cty. Sch.
Dist. v. United Nat’l Ins. Co., 883 So. 2d 1159, 1165 (Miss. 2004).
Bancorp argues that the district court improperly dismissed
Count One by exclusively focusing on the allegations in the
Case: 17-1425
6
Document: 28
Filed: 10/12/2017
Pages: 12
No. 17‐1425
Swift Complaint regarding the overdraft fees. According to
Bancorp, the district court overlooked other allegations
concerning Bancorp’s general policies and procedures which
are the primary sources of harm alleged in the Swift Com‐
plaint.
Under Mississippi law, the determination of whether an
insurance company has a duty to defend depends upon the
comparison of the language contained in the policy with the
allegations contained in the complaint in the underlying action.
Minnesota Life Ins. Co. v. Columbia Cas. Co., 164 So. 3d 954, 970
(Miss. 2014). Thus, we must compare the policy language, in
particular Exclusion 3(n), which excludes from coverage any
claim “based upon, arising from, or in consequence of any
fees or charges,” with the allegations contained in the Swift
Complaint.
To support its argument that the injuries asserted in the
Swift Complaint were primarily caused by Bancorp’s general
policies and practices, Bancorp points to a variety of para‐
graphs in the Swift Complaint that, on their face, have no
mention of overdraft fees. For example, paragraph 35 alleges:
BancorpSouth misleads its customers regarding
its reordering practices, as the Bank does not
state unequivocally in its contract that it will
reorder debits from highest to lowest. Thus, the
Deposit Agreement is deceptive and/or unfair
because it is, in fact, the Bank’s practice to al‐
ways reorder debits from highest to lowest.
However, these individual allegations cannot be read in a
vacuum, and instead, must be read in the context of the entire
Case: 17-1425
No. 17‐1425
Document: 28
Filed: 10/12/2017
Pages: 12
7
complaint. Immediately preceding the above allegation, the
Swift Complaint ties the deceptive Deposit Agreement and
reordering practice directly to Bancorp’s maximization of
overdraft fees: “In an effort to maximize overdraft revenue,
BancorpSouth manipulates debits from highest to lowest
during given periods of time. BancorpSouth reorders transac‐
tions for no reason other than to increase the number of
exorbitant overdraft fees it can charge … .”
Read in its entirety, the only harm alleged by the Swift
Complaint is Bancorp’s maximization of excessive overdraft
fees on its customers. The very first paragraph of the Swift
Complaint specifically states that the crux of the lawsuit
centers on Bancorp’s “unfair and unconscionable assessment
and collection of excessive overdraft fees.” Moreover, the
complaint defines the class of plaintiffs as customers who
“incurred an overdraft fee.” Finally, every claim for relief
asserted is specifically premised on the imposition of overdraft
fees. To be sure, language focusing on “overdraft policies and
procedures” appears in a number of places, but it is always
connected with the wrongful collection or imposition of
overdraft fees.
Accepting Bancorp’s argument that the primary harm
alleged is Bancorp’s general policies and procedures would
require us to uncouple allegations, read them in isolation, and
disregard their context. When the Swift Complaint details a
particular Bancorp policy or practice, such as failing to provide
customers with accurate balance information, it still directly
relates to the underlying harm—the assessment and collection
of excessive overdraft fees. In other words, there is no policy or
practice alleged that exists independent of the overdraft fee
Case: 17-1425
8
Document: 28
Filed: 10/12/2017
Pages: 12
No. 17‐1425
scheme. As the district court rightly concluded, the gravamen
of the Swift Complaint is the imposition of overdraft fees, and
the allegations in the complaint detail particular policies and
practices that assisted in maximizing the assessment and
collection of overdraft fees.
The parties directed us to two unpublished opinions from
our sister circuits which reached opposite conclusions when
confronted with a similar set of facts, although neither of them
dealt squarely with Mississippi law. A case from the Fifth
Circuit, relied on by Bancorp, analyzed whether an insurer was
obligated to provide coverage based on a similar complaint
alleging an “unfair and unconscionable assessment of exces‐
sive overdraft fees[,]” and a nearly identical exclusion of claims
“based upon, arising out of or attributable to any dispute
involving fees or charges … .” First Cmty. Bancshares v. St. Paul
Mercury Ins. Co., 593 F. Appʹx 286, 288 (5th Cir. 2014) (applying
Texas law). Crucial to the Fifth Circuit’s holding that the
insurance company owed a duty to defend was its finding that
the primary harm was not the assessment and collection of
fees, but rather “that customers could not ascertain their
account balances and could not accurately plan spending,
withdrawals, and deposits.” Id. at 290. Yet, as the district court
here concluded, the overdraft fees in the Swift Complaint were
not an additional harm among many. The excessive overdraft
fees were the central and only harm.
More persuasive is the case from the Third Circuit, relied
on by Federal, which reached an opposite conclusion involving
a policy exclusion for “fees, commissions or charges for
Professional Services paid or payable to an Insured.” PNC Fin.
Servs. Grp., Inc. v. Houston Cas. Co., 647 F. Appʹx 112, 120 (3d
Case: 17-1425
No. 17‐1425
Document: 28
Filed: 10/12/2017
Pages: 12
9
Cir. 2016) (applying Pennsylvania law). In finding no duty to
indemnify, the Third Circuit concluded that the essence of the
claims resulted from the bank’s policy of charging overdraft
fees. Id. at 121. The court specifically noted that the class was
defined as those who incurred an overdraft fee, and that the
settlement payments were based on the number of overdraft
fees incurred. Id.
The essence of the Swift Complaint is clearly Bancorp’s
maximization of overdraft fees. Since there is no other way to
construe the Swift Complaint, Federal had no duty to defend
the overdraft fees claims because they are excluded from
coverage. The district court correctly dismissed Count One.
It is worth noting that an insurance company’s decision in
a banker’s liability policy to exclude losses “based upon,
arising from, or in consequence of fees” serves a necessary
purpose of avoiding a “moral hazard.” See, e.g., A.M.I. Dia‐
monds Co. v. Hanover Ins. Co., 397 F.3d 528, 530 (7th Cir. 2005)
(“Moral hazard refers to the effect of insurance in causing the
insured to relax the care he takes to safeguard his property
because the loss will be borne in whole or part by the insurance
company.”). If the policy contained no such exclusion, Bancorp
could freely create other customer fee schemes knowing that
they would be readily reimbursed by Federal. In other words,
the amount of coverage would be completely in the hands of
the insured, Bancorp, which would be in a position to profit
from its bad acts.
Bancorp also argues that the district court erred in finding
Exclusion 3(n) unambiguous. Bancorp contends that the
district court’s broad interpretation of Exclusion 3(n) would
Case: 17-1425
10
Document: 28
Filed: 10/12/2017
Pages: 12
No. 17‐1425
render coverage for “Defense Costs,” defined in the policy to
include attorneys’ fees, illusory.
Under Mississippi law, “insurance policies are contracts,
and as such, they are to be enforced according to their provi‐
sions.” Noxubee Cty., 883 So. 2d at 1166. “[W]hen the words of
an insurance policy are plain and unambiguous, the court will
afford them their plain, ordinary meaning and will apply them
as written.” Id. at 1165. Ambiguous or unclear language will be
resolved in favor of the insured. Id. “Mere disagreement as to
the meaning of a policy provision does not render the policy
ambiguous.” S. Healthcare Servs., Inc. v. Lloydʹs of London, 110
So. 3d 735, 744 (Miss. 2013). Rather, “[a]mbiguities exist when
a policy can be logically interpreted in two or more ways.”
United States Fid. & Guar. Co. of Mississippi v. Martin, 998
So. 2d 956, 963 (Miss. 2008). “[P]rovisions that limit or exclude
coverage are to be construed liberally in favor of the insured.”
Noxubee Cty., 883 So. 2d at 1165. However, because insurance
policies are contracts, “insurance companies must be able to
rely on their statements of coverage, exclusions, disclaimers,
definitions, and other provisions, in order to receive the benefit
of their bargain and to ensure that rates have been properly
calculated.” Id. at 1166.
As a threshold matter, there is nothing ambiguous about
exactly what is excluded from coverage under Exclusion 3(n).
The exclusion itself is plain and ordinary—the policy does not
cover claims “based upon, arising from, or in consequence of
any fees or charges.” The district court correctly rejected
Bancorp’s argument in the district court about whether this
meant fees payable to or by Bancorp. The exclusion encom‐
Case: 17-1425
No. 17‐1425
Document: 28
Filed: 10/12/2017
Pages: 12
11
passes “any fees,” which would reasonably include either type.
A broad exclusion of coverage does not equate to ambiguity.
As to whether the district court’s interpretation of Exclu‐
sion 3(n) conflicts with the definition of “Defense Costs,”
Bancorp seems to have misunderstood the policy in an effort
to create ambiguity and find a route to coverage. The policy’s
definition of “Defense Costs” includes “fees,” i.e., attorneys’
fees. Since Exclusion 3(n) bars coverage for “Loss,” which
includes “Defense Costs” (a term that includes attorneys’ fees)
Bancorp argues that Exclusion 3(n) would bar coverage for any
claim seeking reimbursement of attorneys’ fees. This argument
is without merit. Exclusion 3(n) only excludes coverage of
“Defense Costs,” including attorneys’ fees, incurred on account
of claims against Bancorp that are based upon, arise from, or
are in consequence of fees or charges. The exclusion has no
effect on Bancorp’s recovery of any attorneys’ fees on account
of claims that are based on something other than fees or
charges, such as a claim based on the quality of service
provided by Bancorp. We conclude that Exclusion 3(n) is
unambiguous.
Finally, Bancorp argues that the district court erred in
dismissing Count Two, the duty to indemnify, without
drawing reasonable inferences in favor of Bancorp. Under
Mississippi law, the duty to defend is broader than the duty to
indemnify. W.R. Berkley Corp. v. Reaʹs Country Lane Const., Inc.,
140 So. 3d 437, 442 (Miss. Ct. App. 2013) (citing Titan Indem. Co.
v. Pope, 876 So. 2d 1096, 1101 (Miss. Ct. App. 2004)). Whereas
a duty to defend arises whenever an insured faces potential
liability under the insurance contract, the duty to indemnify
kicks in only when the insured is found liable for something
Case: 17-1425
Document: 28
Filed: 10/12/2017
12
Pages: 12
No. 17‐1425
that the policy actually covers. Bancorp’s argument assumes
Federal had a duty to defend the Swift Complaint in the first
place. Because we conclude that defending the Swift Com‐
plaint was excluded from coverage, Federal does not owe a
duty to indemnify the cost of settling that lawsuit and Count
Two was correctly dismissed. See Evanston Ins. Co. v. Neshoba
Cty. Fair Ass’n, 442 F. Supp. 2d 344, 346 n.1 (S.D. Miss. 2006)
(stating that “if there is no duty to defend, there can be no duty
to indemnify”); see also Health Care Indus. Liab. Ins. Program v.
Momence Meadows Nursing Ctr., Inc., 566 F.3d 689, 693 (7th Cir.
2009) (“Where, as here, the duty to defend is broader than the
duty to indemnify, a finding of no duty to defend necessarily
precludes a finding of a duty to indemnify.”).
Because we conclude that the district court correctly
dismissed Counts One and Two, Count Three alleging bad
faith denial of coverage was also correctly dismissed since
there were no longer underlying claims. Stubbs v. Miss. Farm
Bureau Cas. Ins. Co., 825 So. 2d 8, 13 (Miss. 2002) (“An insured
seeking to recover on a claim of bad faith must first establish
the existence of coverage on the underlying claim.”).
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
order dismissing Bancorp’s complaint.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?