Accident Insurance Company Inc v. US Bank National Association et al

Filing 65

ORDER AND OPINION denying 11 Motion to Dismiss for Failure to State a Claim. Signed by Honorable J Michelle Childs on 9/28/2017.(asni, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Accident Insurance Company, Inc., a
South Carolina Corporation,

)
)
)
Plaintiff,
)
)
v.
)
)
U.S. Bank National Association and U.S. )
Bank Trust N.A.,
)
)
Defendants.
)
____________________________________)

Civil Action No.: 3:16-cv-2621-JMC

ORDER AND OPINION

Plaintiff Accident Insurance Company, Inc. (“Plaintiff”) filed this action against Defendant
U.S. Bank National Association (“Defendant”) for: (1) breach of contract, (2) breach of fiduciary
duty, (3) negligence/gross negligence, and (4) negligent misrepresentation.
This matter is before the court on Defendant’s Motion to Dismiss for Failure to State a
Claim (“Motion to Dismiss”) pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 11.)
Plaintiff opposes Defendant’s Motion, asserting it should be denied. For the following reasons,
the court DENIES Defendant’s Motion to Dismiss (ECF No. 11).
I.

JURISDICTION

The court has jurisdiction over this action pursuant to 28 U.S.C. § 1332. Plaintiff is
organized and incorporated in the State of South Carolina, with its principal place of business in
Lexington County, South Carolina. (ECF No. 1 at 1.) Defendant is a wholly owned subsidiary of
U.S. Bancorp, and is a national chartered bank with its principal place of business and headquarters
in the State of Minnesota. (Id.) U.S. Bank Trust (“USBT”) 1 is a wholly owned subsidiary of U.S.

1

On September 25, 2017, the court dismissed USBT for lack of personal jurisdiction. (ECF No.
63.)
1

Bancorp and an affiliate of U.S. Bank. (Id.) Its principal place of business is in Wilmington,
Delaware. (Id.) The amount in controversy in this matter exceeds $75,000.00. (Id. at 2.)
II.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff is an insurance company with its principal place of business in South Carolina.
(ECF No. 1 ¶ 1.) In April 2013, Plaintiff and Freestone entered into a reinsurance contract known
as the “Program Agreement.” (Id. ¶ 24; ECF No. 1-1.) Freestone, formerly known as Dallas
National Insurance Company, was an indirect subsidiary of Southport Lane, L.P. (“Southport
Lane”), a New York private equity firm owned and controlled by Alexander Chatfield Burns.
(ECF No.1 ¶ 8-10; see also ECF No. 1-1 § 21.)
The relationship between Plaintiff and Freestone is known as a fronted insurance program.
(ECF No. 1 ¶ 24.) One company (here, Plaintiff) acts as the front, and all policies are issued in its
name, but another insurer (here, Freestone) bears the risk of loss. (Id.; ECF No. 1-1.) Plaintiff
received a fee for allowing its name and paper to be used as the front, but shifted to Freestone the
insurance and financial risks under the policies. (ECF No. 1 ¶¶ 24, 26, 29; ECF No. 1-1 §§ 2, 4,
5, 8, 14, 15, 16.)
To ensure that Freestone could make good on its coverage and to protect Plaintiff from
having to pay claims, the Program Agreement required Freestone to supply collateral to secure its
obligations. (ECF No. 1 ¶¶ 27-28; ECF No. 1-1 § 12.) State regulations generally require that
assets serving as reinsurance collateral are liquid and marketable, allowing them to be converted
quickly into cash to pay claims. (ECF No. 1 ¶ 28.) In September 2013, after Plaintiff and Freestone
had been running their fronted insurance program for five months, they brought in Defendant to
serve as the trustee on the trust (“AIC Trust”) that supported their reinsurance relationship. (ECF
No. 1 ¶ 30.) Under the trust agreement, Plaintiff is the beneficiary, Freestone is the grantor, and

2

Defendant is the trustee. (ECF No. 1-2 at 1.) Each party’s rights and duties are set forth by
contract. (Id. § 1(b).) The trust agreement is subject to and governed by Delaware law. (Id. § 13.)
In March 2013, Freestone was acquired by Southport Lane (together with its affiliates and
subsidiaries, “Southport”). (ECF No. 1 ¶ 9.) By 2014, Freestone was insolvent. (Id. ¶¶ 106-08.)
At the beginning of Defendant’s role as trustee in January 2014, the trust account contained only
cash and other eligible securities, thereby adequately protecting Plaintiff’s obligations. (Id. ¶ 35.)
Specifically, the trust account contained assets valued at more than $9 million. (Id.) In January
2014, Defendant approved multiple transactions, including: (1) the substitution of assets for an
investment in Camelot, and (2) the substitution of assets for an investment in the Destra Targeted
Income Unit Investment Trust (“Destra UIT”). (Id. ¶¶ 37-39.) By February 28, 2014, the trust
account held: (1) approximately $87.70 in cash, (2) the Destra UIT units purportedly worth
$6,891,423.29, but worth substantially less, (3) the Camelot Shares purportedly worth
$193,000.00, and (4) the Cook County II series A municipal bonds valued at $2,604,408.05. (Id.
¶ 55.)
On July 22, 2016, Plaintiff filed a Complaint for a jury trial against Defendant. (ECF No.
1.) Plaintiff alleges that Defendant breached various duties as trustee of the Destra UIT, and asserts
claims for: (1) breach of contract (Count 1), (2) breach of fiduciary duty (Count 2), (3)
negligence/gross negligence (Count 3), and (4) negligent misrepresentation (Count 8). 2 (Id.)
Breach of contract. In asserting breach of contract, Plaintiff alleges that Defendant
accepted units of the Destra UIT without validating the Committee on Uniform Securities

2

Plaintiff has voluntarily dismissed Count 6 against Defendant, which asserted a claim under
Section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10(b)(5). (ECF No. 42 at 37.)
3

Identification Procedures (“CUSIP”) 3 numbers, and also did not properly document the transfer of
the units to the trust account, in accordance with its obligations under Section 8(a) of the trust
agreement requiring it adequately “account” for all assets. (Id. ¶¶ 116-17.) As a result, Plaintiff
asserts, Defendant did not satisfy its contractual duty under Section 8(b) of the trust agreement
requiring it to determine that the units were in a form such that Plaintiff could negotiate them
without someone else’s consent. (Id.; see also ECF No. 1-2 § 8(b).)
Breach of fiduciary duty. In asserting breach of fiduciary duty, Plaintiff again alleges a
breach of Section 8(b). (ECF No. 1 ¶ 122(a).) Plaintiff also faults Defendant for two alleged
failures to disclose. First, Plaintiff asserts that Defendant failed to disclose the alleged relationship
among USBT, Administrative Agency Services, LLC (“AAS”) 4, Burns, the Southport entities,
Freestone, and the Destra Fund. (Id. ¶ 122(b).) Second, Plaintiff alleges that Defendant failed to
disclose that the Destra UIT units “were valueless and did not constitute ‘Eligible Assets.’” (Id. ¶
122(c).) Finally, Plaintiff alleges that Defendant incorrectly listed the Destra UIT units under the
heading of “taxable bonds” on an account statement in January 2014. (Id. ¶ 122(d); see also ECF
11-2.)
Negligence/Gross Negligence. In asserting negligence/gross negligence, Plaintiff repeats
the allegations underlying its claim for breach of fiduciary duty, except that Plaintiff adds the
adjectives “negligently, grossly negligently, recklessly, willfully, and wantonly.” (ECF No. 1 ¶
126.)

3

CUSIPs are alphanumeric codes that identify financial instruments and are used to facilitate the
clearance and settlement process of securities. (ECF No. 1 ¶ 45 n.5.) CUSIP numbers are a
component of how a trust’s assets are identified by investors and accounted for by parties in
Defendant’s position. (ECF No. 42 at 13.)
4
AAS is the administrative agent of the Destra Funds that was responsible for the valuation of
the portfolio securities in the Destra Funds. (ECF No. 1 ¶ 66.)
4

Negligent misrepresentation. In asserting negligent misrepresentation, Plaintiff again
alleges that Defendant misrepresented the value of the Destra UIT units, the status of the Destra
UIT units as “taxable bonds” and “Eligible Assets,” and the alleged relationship among USBT,
AAS, Burns, the Southport entities, Freestone, and the Destra UIT. (Id. ¶ 176(a)-(c).)
On September 9, 2016, Defendant filed a Motion to Dismiss for Failure to State a Claim.
(ECF No. 11.) On November 17, 2016, Plaintiff filed a response in opposition to Defendant’s
Motion. (ECF No. 42.) On December 23, 2016, Defendant filed a Reply to Plaintiff’s response.
(ECF No. 50.)
III.

LEGAL STANDARD

A Rule 12(b)(6) motion for failure to state a claim upon which relief can be granted
“challenges the legal sufficiency of a complaint.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th
Cir. 2009) (citations omitted); see also Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th
Cir. 1992) (“A motion to dismiss under Rule 12(b)(6) . . . does not resolve contests surrounding
the facts, the merits of a claim, or the applicability of defenses.”). To be legally sufficient, a
pleading must contain a “short and plain statement of the claim showing that the pleader is entitled
to relief.” Fed. R. Civ. P. 8(a)(2).
A Rule 12(b)(6) motion “should not be granted unless it appears certain that the plaintiff
can prove no set of facts which would support its claim and would entitle it to relief.” Mylan
Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). When considering a Rule 12(b)(6)
motion, the court should accept as true all well-pleaded allegations and should view the complaint
in a light most favorable to the plaintiff. Ostrzenski v. Seigel, 177 F.3d 245, 251 (4th Cir. 1999).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

5

(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S.
at 556).
IV.

ANALYSIS

In its Motion to Dismiss, Defendant seeks dismissal of the following claims: (1) breach of
contract, (2) breach of fiduciary duty, (3) negligence/gross negligence, and (4) negligent
misrepresentation. (ECF No. 11-1.)
1. Breach of Contract (Count 1)
Plaintiff asserts Defendant breached its contractual obligations to it by: (1) accepting the
Destra UIT units in the trust account without validating the CUSIP numbers, and (2) by failing to
properly document the transfer of the units to the trust account. (ECF No. 1 ¶ 117.) Defendant
asserts that Plaintiff’s allegation does not state a claim for breach of its “actual—and limited—
obligations under the trust agreement.” (ECF No. 11-1 at 9.) In support, Defendant references the
contract stating that Defendant has no duty or responsibility “with respect to the qualification,
character, or valuation of the Assets; for the existence, genuineness or value of any of the Assets 5;
to determine whether any Assets are or remain Eligible Securities; or to determine if the value of
the Assets satisfies Plaintiff’s requirements.” (ECF No. 1-2 §§ 2(b), 5(c), 8(c), 8(l), 12(f).)
Under Delaware law, a breach of contract claim arises from proof of the defendant’s
contractual obligation as well as proof that the defendant’s failure to meet that obligation caused

5

The court acknowledges that the full provision of the contract states that Defendant “shall not
be responsible for the existence, genuineness or value of any of the Assets . . . except to the
extent that such action or omission constitutes negligence, lack of good faith or willful
misconduct.” (ECF No. 1-2 ¶ 8(i), ¶ 8(l).)
6

the plaintiff damage. Interim Healthcare, Inc. v. Spherion Corp., 884 A.2d 513, 548 (Del. Super.
2005). To defeat a motion to dismiss, a breach of contract complaint must allege: (1) the existence
of a contract, (2) breach of an obligation imposed by the contract, and (3) resulting damage to the
plaintiff. Micro Focus (US), Inc. v. Ins. Servs. Office, Inc., 125 F. Supp. 3d 497, 500 (D. Del.
2015) (citing VLIW Tech., LLC v. Hewlett-Packard Co., 840 A.2d 606, 612 (Del. 2003)). In fact,
“detailed factual allegation[s] concerning the extent and effect of the breach is not required by the
plausibility standard” Rule 12(b)(6) imposes. Micro Focus (US), Inc., 125 F. Supp. 3d at 501.
Additionally, Defendant may not support its Motion by taking issue with Plaintiff’s interpretation
of the trust agreement’s terms. Id. (explaining a defendant’s dispute over a contract’s meaning to
be “a question for another day”).
The Complaint sufficiently pleads all elements for breach of contract. Specifically,
Plaintiff alleges Defendant accepted the Destra UIT units into the AIC Trust without the required
pre-acceptance negotiability determination mandated by the trust agreement. (ECF No. 1 ¶¶ 4748, 117.) Under the trust agreement:
Before accepting any Asset for deposit to the Trust account, [Defendant] shall
determine that such Asset is in such form that [Plaintiff] whenever necessary may,
or [Defendant] upon direction by [Plaintiff] will, negotiate such Asset without
consent or signature from [Freestone] or any person or entity other than [Defendant]
in accordance with the terms of this Agreement.
(Id. ¶¶ 32 (b), 116) (quoting ECF No. 1-2 § 8(b)) (emphasis added).
Plaintiff alleges Defendant breached this duty willfully and in bad faith by failing to ensure
that the Destra UIT units presented for inclusion in the AIC Trust in January 2014 complied with
the contractually required form. (ECF No. 1 ¶¶ 47-48, 117.) In fact, after Freestone’s financial
distress became evident and Plaintiff made efforts to liquidate and negotiate the Destra UIT units,

7

Defendant refused to do so, citing paperwork issues that impaired the units’ negotiability. (Id. ¶
58.)
As the Complaint alleges, Defendant’s breach of its Section 8(b) duty was a substantial
factor in the depletion of the AIC Trust’s legitimate assets. (Id. ¶ 49.) Plaintiff asserts that had
Defendant made the initial determination Section 8(b) mandated, it would have known the Destra
UIT units were ineligible for inclusion in the AIC Trust for multiple reasons, including their
noncompliance with Section 8(b)’s negotiability standard. Id. When Freestone sustained its
Destra-induced financial collapse, it defaulted on obligations to Plaintiff under its insurance
fronting arrangement and left Plaintiff with the duty to pay claims. (ECF No. 1 ¶ 110.) The AIC
Trust, for which Defendant served as trustee, was Plaintiff’s protection from financial injury in the
event of Freestone’s insolvency. (Id. ¶ 28.) The AIC Trust was valuable to Plaintiff only if its
assets could be easily converted to cash to process and pay insurance claims. (Id. ¶¶ 27-28.)
Defendant was well aware of the AIC Trust’s express purpose when it agreed to serve as trustee.
(ECF No. 1-2 at 2) (stating that trust assets were to “secure payments” Plaintiff may be required
to make “in connection with the Reinsurance Agreements”).
Plaintiff asserts that since the AIC Trust contained overvalued, unnegotiable Destra UIT
units that Defendant admitted to the trust, Plaintiff did not have access to the collateral it was
relying on when Freestone defaulted. (Id. ¶ 112.) As a result, Plaintiff has been forced to turn to
its own reserves and operating funds to meet claim obligations arising from its fronting
arrangement with Freestone. (Id. ¶ 113.) Ultimately, Plaintiff asserts that Defendant’s failure to
meet its Section 8(b) duty directly caused Plaintiff substantial damages, including loss of collateral,
operating losses, lost profits, and reputational harm. (Id. ¶ 119.)

8

Plaintiff also contends that Defendant failed to provide an accounting of all the AIC
Trust’s assets because the monthly account statements generated by Defendant did not include
security identification numbers corresponding to the assets the trust actually contained. (Id. ¶¶ 4546, 117.) Under the trust agreement:
The Trustee shall furnish to Grantor and Beneficiary an accounting of all Assets in
the Trust account upon its inception and thereafter at intervals no less frequent than
as of the end of each calendar month. Such accounting shall include a statement of
all Assets in the Trust account and shall be given as soon as practicable, but in no
event later than fifteen (15) days after such date.
(ECF No. 1-2 § 8(a).)
The court acknowledges that Section 8(b) did not explicitly impose a duty on Defendant to
validate and confirm the CUSIPs on the Destra UIT units. (ECF No. 1-2 § 8(b).) However, at the
very least, the duty to provide an “accounting” required Defendant to submit a “rendition of [the]
account” and the assets it contained. Black’s Law Dictionary (10th ed. 2014); see also Lorillard
Tobacco Co. v. Am. Legacy Found., 903 A.2d 728, 738 (Del. 2006) (holding that courts may use
a dictionary to determine an undefined contract term’s plain and ordinary meaning). The
Complaint focuses on the account statement covering January 2014, the period in which the Destra
UIT units were substituted into the AIC Trust. (Id. at ¶¶ 44-45.) The January 2014 statement
cannot be said to provide an accounting of all the AIC Trust’s assets because it did not accurately
or consistently identify the assets the trust contained. 6 (ECF No. 42 at 13.)

6

For example, “all of the Destra UIT units were listed on the trust account bank statements sent to
Plaintiff with purported CUSIP numbers which were invalid and false.” (ECF No. 1 ¶ 45.) Further,
“the January 2014 bank statement provided by Defendant to Plaintiff on the trust account indicated
that the Destra Series IV and Destra Series V UIT units, purportedly worth $5,000,000.00, had not
been valued since November 23, 2013, and annotated that “[n]o current price was available.”” (Id.
¶ 46.)
9

Both failures violate a specific duty Defendant agreed to accept upon entering the trust
agreement. Therefore, Plaintiff adequately alleges all required elements of a breach of contract
claim under Delaware law. 7
2. Breach of Fiduciary Duty (Count 2)
Plaintiff alleges that Defendant breached its fiduciary duty by: “(1) failing to determine
and ensure that each Asset it accepted in the trust account was in such form that it could be
negotiated whenever necessary without consent or signature from anyone besides Defendant
before it accepted the Asset, (2) failing to disclose the relationship between its affiliate, USBT,
AAS, Burns, the Southport entities, the Destra UIT, and Freestone, in breach of the duty of loyalty
to Defendant owed to Plaintiff, (3) failing to disclose to Plaintiff that the Destra funds were
valueless and did not constitute “Eligible Assets” when, upon information and belief, Defendant
was aware of such fact, and (4) misrepresenting the Destra UIT units as “taxable bonds” in the
bank statements to Plaintiff.” (ECF No. 1 ¶ 122.)
A. Defendant and Plaintiff had a fiduciary relationship.
Neither party contests that a fiduciary relationship existed between Plaintiff and Defendant.
To state a claim for breach of fiduciary duty, Plaintiff’s Complaint must only allege sufficient facts
to support the existence of a fiduciary duty and evidence of its breach. Stewart v. Wilmington
Trust SP Servs., Inc., 112 A.3d 271, 297 (Del. Ch. 2015); Estate of Eller v. Bartron, 31 A.3d 895,
897 (Del. 2011). The Complaint alleged a fiduciary duty owed by Defendant to Plaintiff based on
the parties’ trustee-beneficiary relationship, not on the trust agreement. (ECF No. 1 ¶ 121.)

7

In its opposition, for the first time, Plaintiff asserted that Defendant breached the trust agreement
by failing to determine that assets “substituted” into the account were of equivalent value to the
assets they replaced. (ECF No. 42 at 18-20.) The court acknowledges that Plaintiff did not allege
this breach in its Complaint, and thus the court will not address it.
10

Fiduciary relationships arise from any situation “where one person reposes a special trust
in and reliance on the judgment of another or where a special duty exists on the part of one person
to protect the interests of another.” Feeley v. NHAOCG, LLC, 62 A.3d 649, 661 (Del. Ch. 2012).
Delaware courts have held that fiduciary duties arise and apply to trusts more than any other legal
relationship. Ashby & Geddes, P.A. v. Brandt, 806 F. Supp. 2d 752, 757 (D. Del. 2011); see also
Auriga Capital Corp. v. Gatz Props., 40 A.3d 839, 850 (Del. Ch. 2012); Metro Ambulance Inc. v.
E. Med. Billing, Inc., Civ. A. No. 13929, 1995 WL 409015, at *3 (Del. Ch. July 5, 1995) (“The
traditional relationships recognized by equity as ‘special’ are express trustees and corporate
officers and directors”); McMahon v. New Castle Assocs., 532 A.2d 601, 604 (Del. Ch. 1987)
(finding “the accountability of trustees” to trust beneficiaries to be the “classic example” of a
fiduciary relationship).
By entering a fiduciary relationship, Defendant agreed to seek Plaintiff’s interests in
managing the AIC Trust’s assets. (ECF No. 1-2 at 1.) A fiduciary has duties of reasonable care
and loyalty, and the fiduciary must act in the best interest of the trust property’s beneficial owner.
Stewart, 112 A.3d at 297 (citing In re USACafes, L.P. Litig., 600 A.2d 43, 48 (Del. Ch. 1991)). A
trustee must be loyal to the beneficiary and may not engage in any self-interested transaction.
Joyce, on Behalf of CTC Minerals. Inc. v. Cuccia, No. CIV. A. 14953, 1997 WL 257448, at *5
(Del. Ch. May 14, 1997). A fiduciary’s duty to remain loyal to a beneficiary bars the fiduciary
from undertaking any “unfair, fraudulent, or wrongful act.” Beard Research, Inc. v. Kates, 8 A.3d
573, 602 (Del. Ch. 2010). A fiduciary also owes a duty of candor and may not use its superior
knowledge of events to mislead a beneficiary. Bomarko, Inc. v. Int’l Telecharge, Inc., 794, A.2d
1161, 1180 (Del. Ch. 1999) (quoting Mills Acquisition Co. v. Macmillan, Inc., 559 A.2d 1261,
1280 (Del. Super. 1988)).

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Plaintiff has properly alleged Defendant owed it fiduciary duties through the creation of
the AIC Trust, Defendant’s status as its trustee, and Plaintiff’s position as its sole beneficiary.
(ECF No. 1 ¶¶ 33, 121.)
B. Plaintiff may allege contract and fiduciary duty claims.
Defendant contends that Plaintiff cannot base a tort claim on an alleged breach of
contractual duties because it has not identified an independent basis for that duty. (ECF No. 11-1
at 17.) “[W]here an action is based entirely on a breach of terms of a contract and not on a violation
of an independent duty imposed by law, a plaintiff must sue in contract and not in tort.” Smyrnaa
Hosp., LLC v. Petrucon Constr., Inc., C.A. No. N10C-01-061-CLS, 2013 WL 6039287, at *3 (Del.
Super. Ct. Sept. 27, 2013) (quotation omitted) (applying rule to negligence claim).
However, Delaware recognizes a fiduciary’s responsibilities arise not only by contract but
also by nature of the fiduciary relationship. In other words, a fiduciary is “twice-tested,” with the
court first weighing the fiduciary’s actions against contractual duties and then determining
“whether those actions—even if permitted by law—were a breach of the trustee’s fiduciary
obligations.” Mennen v. Wilmington Trust Co., C.A. No. 8432-ML, 2015 WL 1914599, at *22
(Del. Ch. Apr. 24, 2015); see also Paradee v. Paradee, C.A. No. 4988-VCL, 2010 WL 3959604,
at *11 (Del Ch. Oct. 5, 2010) (finding that a trustee’s contractual right “does not answer the
separate question of whether he breached his fiduciary duties”); RJ Assoc., Inc. v. Health Payors’
Org. Ltd. P’ship, Case No. 16873, 1999 WL 550350, at *9-10 (Del. Ch. July 16, 1999) (“Conduct
by an entity that occupies a fiduciary position . . . may form the basis of both a contract and a
breach of fiduciary duty claim”).
Delaware law only prohibits fiduciary duty claims that are wholly duplicative of contract
claims. Lee v. Pincus, C.A. No. 8458-CB, 2014 WL 6066108, at *8 (Del. Ch. Nov. 14, 2014)

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(finding that the Nemec principle, which states that courts dismiss fiduciary duty claims where the
plaintiff seeks to impose obligations beyond the governing contract, is limited to alleged violation
of right that is “solely a creature of contract”). Defendant’s argument does not prevail because the
“two claims [do not] overlap completely.” Grunstein v. Silva, C.A. No. 3932-VCN, 2009 WL
4698541, at *6 (Del. Ch. Dec. 8, 2009) (citations omitted). There is no duplication and no basis
for dismissal where the alleged fiduciary duty is based on additional facts or is broader in scope
than the contractual obligations. AM Gen. Holdings, LLC on behalf of Ilshar Capital LLC v. Renco
Group, Inc., C.A. No. 7639-VCN, 2013 WL 5863010, at *10 (Del. Ch. Oct. 31, 2013). Here, the
basis for Plaintiff’s fiduciary duty claim is not the trust agreement, but rather the “special
relationship of trust” formed with Defendant. (ECF No. 1 ¶121.) The court finds that the
Complaint sufficiently alleges violations of the duty of loyalty (Id. ¶ 122(b)), candor (Id. ¶ 122(c)),
and honesty (Id. ¶ 122(d)), and that such duties are inherent to the parties’ relationship.
C. The trust agreement does not eliminate Defendant’s fiduciary duty.
Defendant relies on three of the trust agreement’s provisions to suggest that all fiduciary
duties inherent to its special relationship with Plaintiff have been eliminated by contract. (ECF
11-1 at 17) (citing ECF No. 1-2 § 1(b), 8(i), 8(n)). This argument must fail because the language
of these provisions does not support Defendant’s conclusions. None of the provisions refer to or
could reasonably be interpreted to cover the fiduciary duties Defendant owed Plaintiff. Defendant
first cites Section 1(b) under the trust agreement, which provides that:
[t]he rights and duties of . . . the trustee under this Agreement are not subject to
any conditions or qualifications not set forth in the Agreement.
(ECF No. 1-2 § 1(b).) This provision does not refer to fiduciary duties. Instead, it speaks
only of Defendant’s contractual duties (“duties . . . under this Agreement”) and prevents
trust parties from arguing Defendant had a contractual duty with non-contractual
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components or an extra-contractual standard of care. In other words, Section 1(b) does not
eliminate potential non-contractual duties; rather, it only limits the scope of existing
contractual duties. Fiduciary duties arise from special relationships, not contract, and by
its plain language, Section 1(b) does not affect the existence of such duties. Ashby &
Geddes, 806 F. Supp. 2d at 757 (finding fiduciary duties are based on relationships).
Defendant then cites Section 8(n) under the trust agreement, which provides that:
[Defendant’s] duties and responsibilities shall be entirely administrative and not
discretionary and determined only with reference to this Agreement and Applicable
Insurance Law. [Defendant] is not charged with knowledge of any duties or
responsibilities in connection with any other document or agreement.
(ECF No. 1-2 § 8(n).) This provision rejects contractual duties based on other agreements. The
first sentence refuses to explain Defendant’s contractual duties beyond the contract’s terms. The
second sentence states that Defendant may not be liable for conduct that would violate other
contracts. This is a formal recognition that it would be unfair to impose liability on Defendant for
violating contracts to which it is not a party and of which it may not even be aware. This sentence
cannot be reasonably construed to reference a fiduciary duty because it specifically references any
“other document or agreement.” Fiduciary duties are not document-dependent and do not arise
from any written agreement; they are relationship-based and inherent to Defendant’s status as
trustee. Ashby & Geddes, 806 F. Supp. 2d at 757.
Finally, Defendant relies on Section 8(i) under the trust agreement, which provides that:
The Trustee shall not be liable for any loss . . . incurred or made arising out of or in
connection with the performance of its duties hereunder . . . unless such loss . . .
[is] caused by its own negligence, willful misconduct, or lack of good faith.
(ECF No. 1-2 § 8(i).) Section 8(i) also does not affect Defendant’s fiduciary duties
because, like Section 1(b), it expressly limits its effect to contractual duties –i.e. “duties
hereunder in accordance with the provisions of this Agreement.” Section 8(i)’s expressed
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intent is to eliminate liability without fault for contract breaches.

Specifically, the

provision eliminates liability for Defendant’s breaches of contract unless they are caused
by “negligence, willful misconduct or lack of good faith.” (ECF No. 1-2 § 8(i).)
The court rejects Defendant’s argument that its fiduciary duties to Plaintiff are eliminated
by the trust agreement. The court acknowledges Delaware law allows fiduciary duties to be
restricted or eliminated by contract:
(a) [T]he terms of a governing instrument may expand, restrict, eliminate, or
otherwise vary any laws of general application to fiduciaries, trusts and trust
administration, including, but not limited to, any such laws pertaining to:
(4) A fiduciary’s powers, duties, standard of care, rights of indemnification
and liability to persons whose interests arise from that instrument.
12 Del. C. § 3303(a)(4).
However, none of the three provisions on which Defendant relies may be reasonably
interpreted to do so because there is no express modification of the standard of care. None of the
provisions reference a “fiduciary” duty, and by their plain language, these provisions are intended
only to limit the scope of contractual duties or restrict the standard of care for breaches of
contractual duties. Further, under Delaware law, a trust agreement may not disclaim a fiduciary’s
liability for willful misconduct:
[H]owever, [] nothing contained in this section shall be construed to permit the
exculpation or indemnification of a fiduciary for the fiduciary’s own willful
misconduct.
12 Del. C. 3303(a). Plaintiff’s Complaint alleges Defendant committed willful misconduct
in its operation of the AIC Trust (ECF No. 1 ¶¶ 113, 123.) Accordingly, the court finds
that Plaintiff has sufficiently alleged that there exists an independent duty of good faith and
care, which supports Plaintiff’s claim for breach of fiduciary duty.

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3. Negligence/Gross Negligence (Count 3)
Plaintiff repeats the allegations underlying its claim for breach of fiduciary duty, adding
the adjectives “negligently, grossly negligently, recklessly, willfully, and wantonly” to the
allegations. (ECF No. 1 ¶ 126.) As discussed above, the court finds that Plaintiff has sufficiently
alleged that there exists an independent duty of good faith and care, which supports Plaintiff’s
claim for negligence/gross negligence.
4. Negligent Misrepresentation (Count 8)
Plaintiff alleges that Defendant repeatedly made false representations to Plaintiff,
including: (a) misrepresenting the value of the Destra UIT units, (b) misrepresenting that the Destra
UIT units were “taxable bonds” and constituted “Eligible Assets,” and (c) misrepresenting the
relationship between Defendant, USBT, Freestone, the Southport Lane entities, the Destra Fund,
AAS, and Burns. (ECF No. 1 ¶ 176.)
To plead negligent misrepresentation under Delaware law, a plaintiff must allege facts
showing: “(1) the defendant had a pecuniary duty to provide accurate information, (2) the
defendant supplied false information, (3) the defendant failed to exercise reasonable care in
obtaining or communicating the information, and (4) the plaintiff suffered a pecuniary loss caused
by justifiable reliance upon the false information.” Steinman v. Levine, No. Civ. A. 19107, 2002
WL 31761252, at *15 (Del. Ch. Nov. 27, 2002), aff’d, 822 A.2d 397 (Del. 2003).
Attached as Exhibit A to Defendant’s Motion to Dismiss is a copy of an account statement
for the period from January 1, 2014 to January 31, 2014 (the “January 2014 Account Statement”)
for the trust account. (ECF No. 11-3.) In evaluating a motion to dismiss under Rule 12(b)(6), the
court may consider “documents attached or incorporated into the complaint without converting the
motion to dismiss into a motion for summary judgment.” Floyd v. Mgmt. Analysis & Utilization,

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Inc., C.A. No. 7:13-01971-JMC, 2014 WL 971937, at *11 (D.S.C. Mar. 12, 2014) (quotation
omitted). Moreover, “when a defendant attaches a document to its motion to dismiss, ‘a court may
consider it in determining whether to dismiss the complaint [if] it was integral to and explicitly
relied on in the complaint and [if] the plaintiffs do not challenge its authenticity.’” Id. (quoting
Am. Chiropractic Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004)). The
January 2014 Account Statement may be properly considered by the court because it is integral to
and explicitly relied on in the Complaint. Plaintiff repeatedly cites the January 2014 Account
Statement, including its reference to “taxable bonds,” and describes in detail transactions from the
January 1, 2014 to January 31, 2014 time period. (See ECF No. 1 ¶¶ 36-39, 44, 46, 54, 122(d),
151, 153, 157, 176.)
Defendant asserts that it had no duty to provide information and its misrepresentations were
disclaimed in the form of boilerplate language on the account statements stating that the valuing
information should not be relied upon by Plaintiff. (ECF No. 11-1 at 18.) Specifically, Defendant
points to the disclaimer in the January 2014 Account Statement which advised that Defendant did
not hold or control the Destra UIT, and so “the description of the asset and its price (or value)
should not be relied upon for any purpose.” (ECF No. 11-2 at 3.)
In H-M Wexford LLC v. Encorp, Inc., the Chancery Court for Delaware considered such a
disclaimer under similar circumstances. 829 A.2d 129 (Del. Ch. 2003). Where the disclosures did
not obviate representations in a prior agreement, the court found they could not preclude justifiable
reliance. H-M Wexford LLC, 832 A.2d at 146. The court acknowledges Defendant’s argument
that under the trust agreement Defendant had “no duty or responsibility with respect to the
qualification, character, or valuation of the Assets deposited into the trust account.” (ECF No. 12 § 2(b).) However, in the contract between the parties, Defendant, as trustee, agreed to maintain

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assets of the trust, which were to be negotiable at any time. (Id.) These were the terms agreed
upon by the parties, and Defendant cannot alter these terms by placing boilerplate disclaimer
language as to the value of the funds on the statement to absolve itself of contractual duties. When
Plaintiff attempted to withdraw the assets of the trust account, Defendant could not negotiate these
assets. (ECF No. 1 ¶ 58.)
Further, Plaintiff properly pled reliance upon these representations in its Complaint. (Id.
¶¶ 94-95.) 8 At the time these representations were made by Defendant, Plaintiff had no reason to
doubt the value of these securities as presented by Defendant. (Id. ¶ 180.) Lastly, Plaintiff properly
pled that it suffered a pecuniary loss caused by its reliance. (Id. ¶ 181.)
Therefore, Plaintiff’s allegations in its Complaint are sufficient to survive the Motion to
Dismiss.

8

Plaintiff further asserts in support of its reliance argument that Defendant misrepresented “the
relationship between the entities, trusts, and assets involved.” (ECF No. 42 at 28.) However, the
Complaint does not allege that Defendant stated anything about this “relationship.” To the
contrary, Plaintiff repeatedly faults Defendant for failure to disclose. (See ECF No. ¶¶ 50, 51,
122(b), 126(b).) Delaware law does not recognize negligent misrepresentation “premised on an
omission of material fact.” Conway v. A.I DuPont Hosp. for Children, C.A. No. 04-4862, 2007
WL 560502, at *7 (E.D. Pa. Dec. 14, 2007). Under Delaware law, “‘liability for the tort of
negligent misrepresentation is premised on defendant’s supply of ‘false information,’ and not on
the omission of material information.’” Id. (quoting Brug v. Enstar Grp., Inc., 755 F. Supp. 1247,
1259 (D. Del. 1991)); see also George v. Kuschwa, 1986 WL 6588, at *4 (Del. Super. Ct. May 21,
1986) (“The Court finds no authority for the proposition that silence or non-action states a claim
for negligent misrepresentation.”), aff’d, 518 A.2d 983 (Del. 1986). Therefore, the court does not
find that Defendant negligently misrepresented “its relationships.”
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V.

CONCLUSION

For the foregoing reasons, the court DENIES Defendant’s Motion to Dismiss (ECF No.
11).

IT IS SO ORDERED.

United States District Judge
September 28, 2017
Columbia, South Carolina

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