F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
July 25, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
CLEA RO NE COM M UNICA TIONS,
INC., a Utah corporation, and
ED W A RD DA LLIN BA G LEY ,
Plaintiffs-Appellants,
v. No. 05-4294
NATIONA L UNION FIRE
IN SU RAN CE C OM PA N Y O F
PITTSBURGH, PENNSYLVANIA , a
Pennsylvania corporation,
Defendant-Appellee.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF UTAH
(D .C . NO. 2:04-CV-119-TC)
Raymond J. Etcheverry, Parsons Behle & Latimer, Salt Lake City, Utah, for
Appellant Clearone Communications, Inc., and Jefferson W . Gross, Burbidge &
M itchell, Salt Lake C ity, U tah, for Appellant Edward Dallin Bagley (Kent O.
Roche, Parsons Behle & Latimer, Salt Lake City, Utah, and Richard D. Burbidge
and Robert J. Shelby, Burbidge & M itchell, Salt Lake City, Utah, with them on
the briefs).
Roy G. W eathercup, Lewis Brisbois Bisgaard & Smith, LLP, Los Angeles,
California for Appellee (Douglas R. Irvine and M atthew L. Seror, Lewis Brisbois
Bisgaard & Smith, LLP, Los Angeles, California, and Phillip S. Ferguson and
Anneliese C. Booher, Christensen & Jensen, P.C., Salt Lake City, Utah, with him
on the brief).
Before H E N RY, Circuit Judge, M cW ILLIAM S, Senior Circuit Judge, and
T YM K O VIC H, Circuit Judge.
T YM K O VIC H, Circuit Judge.
National Union Fire Insurance Company of Pittsburgh, Pennsylvania
rescinded an executive liability insurance policy it issued to ClearOne
Communications, Inc. based on misrepresentations in financial statements
accompanying ClearOne’s application for the insurance. ClearOne filed suit
challenging National Union’s action. The district court granted summary
judgment in favor of National Union, concluding National Union properly
rescinded the insurance policy in its entirety under U tah law. Clearone
Com muns. Inc. v. Lum bermens M ut. Cas. Co., 2005 U.S. Dist. LEXIS 26187 (D .
Utah Oct. 21, 2005). On appeal, ClearOne and one of its directors argue that (1)
fact questions remain as to whether ClearOne knowingly misrepresented its
financial condition in the insurance application, and (2) the district court erred in
interpreting the insurance policy’s severability clause and scope of loss
provisions.
W e have jurisdiction pursuant to 28 U.S.C. § 1291, and AFFIRM in part
and REM AND for further proceedings.
2
I. Background
A. Facts
ClearOne is a publicly-held, audio conferencing products company in Salt
Lake City, Utah. National Union of Pittsburgh, Pennsylvania provides
comprehensive commercial insurance policies for businesses. Edward Bagley is
ClearOne’s single largest shareholder and is on the board of directors.
In September 2002, C learOne applied for a Directors & Officers (D&O )
liability policy with National Union. As part of the process, ClearOne was
required to complete an insurance application. One question asked applicants to
provide copies of various documents or to indicate w hether the documents are
available on the Internet, including a 2002 10-K Form. See Question 14, Aplts.
App. at 3680. ClearOne directed National Union to its website to obtain: (1) the
“latest 10K report filed with the [SEC]”; (2) the “latest interim financial
statement available”; and (3) “all registration statements filed with the SEC . . .
within the last twelve months.” Id. Furthermore, in response to other questions
seeking a list of the applicant’s executives, ClearOne responded, “See 10K.” See
Question 4(a) and (b), id. at 3677–78. In bold capital letters, the application
declares, “All written statements and materials furnished to the insurer in
conjunction with this application are hereby incorporated by reference into this
application and made a part hereof.” Id. at 3681.
3
The application also includes a severability clause. Provision 15 of the
application states,
It is further agreed that in regard to the applicability of questions 8, 9,
and 10 above, 1 the facts pertaining to any knowledge possessed by any
Insured (other than the knowledge and/or information possessed by the
person(s) executing the application) shall not be imputed to any other
Insured Person; only facts pertaining to and knowledge possessed by
any past, present or future chairman of the board, president, chief
executive officer [CEO], chief operating officer [COO], chief financial
officer [CFO ] and G eneral Counsel . . . of the Organization shall be
imputed to the Organization.
Id. at 3680 (emphasis added).
The application was signed by Frances Flood, the President and CEO of
ClearOne, on behalf of the corporation. As part of the application, she warranted,
“The undersigned authorized officer/manager of the applicant declares that the
statements set forth herein are true.” Id.
Upon receipt of the application, National Union undertook a review and
analysis of the documents. National Union thoroughly examined the 10-K, the
1
Question 8 asks, “Has there been or is there now pending any claim(s) or
actions against or investigation(s) of: (i) the Applicant . . .; and/or (ii) any person
proposed for insurance in his or her capacity as an Executive of . . . the Applicant
. . . .” Aplts. App. at 3678.
Question 9 requires the Applicant to warrant that “(a) No Executive has
knowledge or information of any act, error or omission which might give rise to a
Claim or Crisis under the proposed policy . . . . (b) [T]he Applicant . . . has [no]
knowledge or information of any act, error or omission which might give rise to a
Securities Claim or Crisis under the proposed policy. . . .” Id.
Question 10 asks a series of questions regarding potential liabilities that
may give rise to a claim under the Policy. Id. at 3679.
4
10-Q, and other financial documents provided by ClearOne. After reviewing
ClearOne’s documents, National Union had additional questions about the
financial statements. Brady Head, a Senior Vice President of National Union,
emailed a ClearOne representative asking specifically if the company certified its
financials as required by Sarbanes-Oxley and if there were any non-compliance
issues w ith respect to its revenue recognition practices. Head received answ ers to
those questions in a conference call with Susie Strohm, ClearOne’s CFO , who
indicated there were no non-compliance issues and the financials were certified.
National Union issued a D& O policy to ClearOne valued at $3 million to run from
October 29, 2002 until October 29, 2003.
In early 2003, ClearOne publicly acknowledged that its financial statements
for the previous two years were not reliable, later admitting that shareholders’
equity and net income had been substantially overstated. 2 The overstatement
2
On January 21, 2003, ClearOne issued a press release which stated:
At this time, the Company’s financial statem ents for the fiscal
years ended June 30, 2001, and June 30, 2002, and for the
quarters ended M arch 31, 2001, through and including Sept. 30,
2002, are under review . At this time, investment decisions should
not be made based on these financial statements, or on the
auditor’s report included in the Company’s 2002 Annual Report
as filed on Form 10K. In addition, the guidance given by the
Company on Oct. 23, 2002, for the fiscal year ending June 30,
2003, should be treated in the same manner.
Clearone Com muns. Inc. v. Lum bermens M ut. Cas. Co., 2005 U.S. Dist.
(continued...)
5
arose from ClearOne’s revenue recognition practices. ClearOne entered into
distributor agreements with a policy of recognizing revenue when the product was
2
(...continued)
LEXIS 26187 at 23–24 (D. Utah O ct. 21, 2005).
In its August 18, 2005 10-K filing with the SEC, ClearOne restated
its financials for the fiscal years 2001, 2002, and 2003, and offered an
explanation for the restatement. The 10-K filing read:
This report contains . . . our restated audited consolidated
financial statements for the fiscal years ended June 30, 2002 and
2001. In connection with the restatement, we performed a
comprehensive review of our previously issued consolidated
financials statements for fiscal years 2002 and 2001 and
identified a significant number of errors and adjustments. The
restated consolidated financials statements . . . resulted in
cumulative net reductions to stockholder’s equity as of June 30,
2002 and 2001 of approximately $17.4 million and approximately
$3.8 million, respectively, and reductions in previously reported
net income for the years ended June 30, 2002 and 2001 of
approximately $14.1 million and $3.9 million, respectively.
Id. at 24–25.
ClearOne gave this explanation for its errors:
W e have a material weakness with respect to accounting for
revenue recognition and related sales returns, credit memos, and
allowances. Our accounting policies and practices over revenue
recognition and related sales returns, credit memos, and
allowances were inconsistent with generally accepted accounting
principles in the U .S. (GAAP) . . . . Related sales returns and
allowances, rebates, and accounts receivables were also misstated
as a result of the errors in revenue recognition.
Id. at 25. For a detailed account of ClearOne’s accounting
irregularities, see id. at 11–24.
6
shipped to distributors. It required distributor payments within 90 days, but the
common practice was to permit distributors to remit payment for the products if
and when the products were subsequently sold. This practice was known as “pay
as you go” or “pay as you sell” and led to the accelerated recognition of revenue
not yet received.
The admission of financial irregularities precipitated several shareholder
suits and an investigation by the SEC. In anticipation of these matters, ClearOne
notified National Union as a prelude to tendering a claim under the policy. In
response, National Union announced its intention to rescind the insurance contract
ab initio based on the 2002 financial misstatements, which it relied on in issuing
the policy.
ClearOne later entered into a consent decree with the SEC, enjoining any
future securities law violations without admitting any guilt. Based in part on
National Union’s refusal to honor the D & O policy, ClearOne also settled a class
action suit by its shareholders, paying $5 million and issuing 1.2 million shares of
common stock to the class plaintiffs.
B. Procedural H istory
ClearOne and Bagley brought this diversity action to enforce their rights
under the $3 million D& O liability insurance policy. They each asserted a breach
of contract claim and a tort claim based on bad faith, and both sought punitive
damages. Bagley’s claims specifically relate to the dilution of his ownership
7
share based on the distribution of additional company shares as part of the
settlement of the class action suit. He claims that the issuance of the 1.2 million
shares of ClearOne stock diluted his ownership and effectively forced him to
contribute a portion of his shares in the company to the settlement. National
Union’s principal defense is that it properly rescinded the policy after discovering
it had issued the policy in reliance upon material misrepresentations made by
ClearO ne in its insurance application and related materials.
Both sides filed cross motions for summary judgment and partial summary
judgment. In granting summary judgment for National Union, the district court
(1) held National Union properly rescinded the insurance policy in its entirety
under Utah law, and (2) rejected Bagley’s claims since he suffered his loss in the
capacity of a shareholder and not as a ClearOne director. The court’s rulings
rendered moot the other summary judgment motions.
Both ClearOne and Bagley appeal the decision.
II. Standard of Review
W e review the district court’s grant or denial of summary judgment de
novo, applying the same legal standard that the district court applied. M ontero v.
M eyer, 13 F.3d 1444, 1446 (10th Cir. 1994). Under that standard, summary
judgment is appropriate “if the pleadings, depositions, answ ers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
8
judgment as a matter of law .” Fed. R. Civ. P. 56(c). “A n issue of fact is
‘genuine’ if the evidence allows a reasonable jury to resolve the issue either way
and is ‘material’ when it is essential to the proper disposition of the claim.”
Haynes v. Level 3 Communs., 456 F.3d 1215, 1219 (10th Cir. 2006) (internal
quotation omitted). O n an appeal from a motion for summary judgment, we
construe all factual inferences in favor of the party against whom summary
judgment w as entered. NISH, Inc. v. Rumsfeld, 348 F.3d 1263, 1266 (10th Cir.
2003).
In addition, we review the district court’s interpretation and determination
of state law de novo. Freightquote.com v. Hartford Cas. Ins., 397 F.3d 888, 892
(10th Cir. 2005). “W here the state’s highest court has not addressed the issue
presented, the federal court must determine what decision the state court would
make if faced with the same facts and issue.” Oliveros v. M itchell, 449 F.3d
1091, 1093 (10th Cir. 2006) (internal quotation omitted).
III. Analysis
ClearOne contends the district court erred by misapprehending (1) the
elements of rescission under Utah law, (2) the severability clause’s effect on
rescission, and (3) whether any claims survive rescission. W e consider each
contention in turn.
9
A. Rescission
Starting with the rescission claim, ClearOne first contends it never gave an
unqualified warranty that its financials were accurate, and therefore no
misstatement exists to serve as a basis of rescission. It also contends that the
elements of rescission were not satisfied on summary judgment because genuine
issues of material facts exist as to (1) knowledge of the misstatement, (2)
materiality of the misstatement, (3) reasonable reliance on the misstatement and
the estoppel defense to reliance, and (4) the innocence of misstatements; thereby
defeating rescission.
Rescission of an insurance contract is governed by Utah law . Under § 31A -
21-105 of the Utah Code, “[N]o misrepresentation or breach of an affirmative
warranty affects the insurer’s obligations under the policy unless: (a) the insurer
relies on it and it is either material or is made with intent to deceive; or (b) the
fact misrepresented or falsely warranted contributes to the loss.” Utah Code Ann.
§ 31A-21-105(2) (1994).
In interpreting these elements, a Utah appellate court has construed the
“misrepresentation” term to contain a scienter element. Derbidge v. M utual
Protective Ins. Co., 963 P.2d 788 (U tah Ct. App. 1998). M isrepresentation is
“something more than an innocent misstatement.” Id. at 795. Consequently, an
10
“innocent misstatement” does not constitute a “misrepresentation” for purposes of
rescission. 3
National Union sought rescission under the theory that it relied on
ClearO ne’s material misrepresentation in its insurance application. See § 31A-21-
105(2)(a). Accordingly, in order to invalidate ClearOne’s insurance policy,
National Union must first establish (1) a misstatement, (2) lack of innocence, (3)
m ateriality, and (4) reliance. A fter reviewing the record and examining Utah law ,
we agree with the district court that National Union sufficiently demonstrated
three elements— misstatement, materiality, and reliance. Nevertheless, we
disagree that lack of innocence was established as a matter of law and we
therefore remand on that issue.
1. M isstatement
Preliminarily, the parties had divergent views as to the nature of the
misstatement at issue. W hile it is uncontested that ClearOne’s 2002 10-K
financial statement falsely represented ClearO ne’s true financial condition, see
Aplts. Br. at 37 (“ClearOne and Bagley do not deny that the financial statements
reviewed by National Union while underwriting D& O Policy were misstated.”),
3
In requiring some level of bad faith before a misstatement may serve as a
basis of rescission, the Utah court acknowledged the split in authority among the
states on this issue. See Derbidge, 963 P.2d at 792. In many jurisdictions, an
innocent misrepresentation will permit an insurance policy to be voidable. See 6
Couch on Ins. § 82:34.
11
two theories of the nature of the misstatement flow from the representations in the
insurance application.
On one hand, National Union claims the false financial statements
themselves constitute the misstatement since they were incorporated into the
application. ClearOne argues, on the other hand, that the financial statements
could not serve as the basis of rescission because (1) ClearOne never gave an
“unqualified representation that its financials were accurate,” id. at 29, and (2)
incorporating the 10-K by reference into the application contravenes both Utah
law and an insurance policy provision against incorporation of items not found in
the policy or application. Instead, ClearOne maintains that the only possible
misstatement flows from Flood’s answer to two questions in the application which
warranted against any knowledge or information that would give rise to a claim
under the policy. See Questions 9(a) and (b), A plts. App. at 3678.
The district court agreed w ith N ational Union and held that the false
financials constituted a misstatement for purposes of rescission. W e concur.
Question 14 of the application clearly asks applicants to provide copies of the
“latest 10K report filed with the Securities and Exchange Commission.” In
response, ClearOne directed National Union to its website to gain the requested
forms. The application then states, “A ll written statements and materials
furnished to the insurer in conjunction with this application are hereby
incorporated by reference into this application and made a part hereof.” Aplts.
12
App. at 3681. The incorporated financials in turn become a basis of the contract
issuing a policy between National Union and ClearO ne. Id. at 3680.
a. Incorporation by Reference
Taking ClearOne’s second argument first, we perceive no legal infirmity in
incorporating the financials into the insurance application. Under Utah law, “an
insurance policy may not contain any agreement or incorporate any provision not
fully set forth in the policy or in an application or other document attached to and
made a part of the policy at the time of its delivery, unless the policy, application,
or agreement accurately reflects the terms of the incorporated agreement,
provision, or attached document.” Utah Code Ann. § 31A-21-106(1)(a) (1996).
National Union’s D& O policy also states that “[t]he Application and all relevant
documents will be attached to the policy at the time of delivery.” Aplts. App. at
3727. ClearOne interprets these provisions as precluding the incorporation of the
10-K by reference.
Neither the plain language nor the purpose behind the statute support
ClearOne’s conclusion. First, § 31A-21-106(1)(a) restricts only “agreement[s]”
or “provision[s]” from incorporation into the insurance contract. The 10-K Form
is neither. Instead, it is a part of the factual predicate of the application, serving
to induce issuance of the policy. The financial form was not a part of the policy’s
coverage terms, and was analytically no different than other information
ClearOne provided to National Union. As the Utah Supreme Court has stated, the
13
statute’s “aim is to ensure that the entire insurance contract is contained in one
document so that the insured can determine from the policy exactly what coverage
he or she has.” Cullum v. Farmers Ins. Exch., 857 P.2d 922, 925 (U tah 1993).
W hen insureds can determine their coverage under the policy “solely by relying
on the [policy] document,” then § 31A-21-106(1)(a) is not implicated. Id.; see
also Progressive Cas. Ins. Co. v. Dalgleish, 52 P.3d 1142, 1146 (U tah 2002).
Accordingly, we find that this statute does not apply to ClearOne’s financial
statements incorporated into the National Union application.
b. W arranty
ClearOne’s first argument that it never gave an iron-clad warranty as to the
accuracy of its financials is also unpersuasive. ClearOne bases its argument on
the fact that the financials included only a tepid certification of their accuracy. 4
Nevertheless, under § 31A-21-105, a representation need not be warranted as true
to constitute a misrepresentation. The provision distinguishes between a
“misrepresentation” or a “breach of an affirmative warranty” 5 and either may
4
The corporate officials’ certifications of accuracy included in the 10-K
Form was expressly prefaced with the qualifying language— “[b]ased on my
knowledge.” Aplts. App. at 7022.
5
A warranty in the law of insurance is a statement or stipulation in the
policy which is breached unless absolutely true or literally fulfilled. Zolintakis v.
Equitable Life Assurance Soc., 97 F.2d 583, 586 (10th Cir. 1938) (applying Utah
law). An affirmative warranty affirms the existence of a fact at the time the
policy is entered into. Id.
14
form the basis of rescission. Utah Code Ann. § 31A-21-105(a). The statute
obviously contemplates a distinction between (1) a statement that is falsely
represented and (2) a statement that violates a warranty of accuracy. Reading a
“warranty” requirement into “misrepresentation” fails to give full effect to both
provisions of the statute, and we decline such an interpretation.
Utah case law pre-dating § 31A-21-105 confirms this view. In Fidelity &
Casualty Co. v. M iddlemiss, 135 P.2d 275, 279 (Utah 1943), the Utah Supreme
Court held,
If a representation is material to the risk and likewise knowingly false,
it will be as potent for a rescission of the contract embodied in the
policy as if the untrue statement was made in form [of] a warranty.
Thus, ClearOne’s representations in its financials were as good as a
warranty. “An inaccurate statement is an inaccurate statement, regardless of
whether the maker of that statement made an additional promise to be truthful.”
National Union Fire Ins. Co. v. Sahlen, 807 F. Supp. 743, 747 (S.D. Fla. 1992).
Accordingly, the district court did not err in concluding that National
Union met the misstatement element necessary to establish rescission.
2. Innocence
ClearOne next contends a genuine dispute of fact exists as to whether its
certifying official knew the financial statements were inaccurate, or, put
differently, whether it innocently presented the financials as accurate to National
Union. ClearOne argues a factual dispute exists as to CEO Frances Flood’s
15
knowledge of the misstatements incorporated into the insurance contract thereby
negating the scienter requirement. Nevertheless, whether Flood had actual
knowledge of the misstatements in the financials is only part of the equation since
we conclude Utah’s rescission statute only requires that Flood knew or should
have known about the misstatements.
a. Utah Law
Recent analysis of insurance rescission law by a U tah appellate court
supports the “knew or should have known” standard for innocence. In Derbidge
v. M utual Protective Ins. Co., 963 P.2d 788 (Utah Ct. App. 1998), an applicant
sought medical insurance from an insurer. As part of the insurer’s application,
the applicant answered “no” to whether she received medical treatment or advice
for an organic mental disease or disorder. Id. at 789. The insurer issued the
applicant a long-term care policy pursuant to the application. Six months later,
the applicant filed a proof of loss, claiming she suffered from Alzheimer’s
disease. Unknown to the applicant, several years beforehand, her doctor
suspected she suffered from an organic brain syndrome. The doctor noted his
suspicion in her medical records but did not discuss the possible diagnosis with
the applicant. Upon discovery of her medical records, the insurer rescinded her
insurance policy based on the misrepresentation in her application.
Reviewing Utah law, law from other jurisdictions, and policy
considerations, the court concluded that the rescission statute required an
16
insurance applicant have “knowledge or awareness” of the misstatement in order
for it to constitute a “misrepresentation” and serve as a basis of rescission. 963
P.2d at 797. In other words, rescission may not be grounded solely on an
“innocent misstatement” made by the insured. Id. at 793. The applicant must,
therefore, “[do] something more than make an innocent misstatement.” Id.
The court, nevertheless, left open the question of what degree of knowledge
is necessary before a misstatement can be considered a misrepresentation. W hile
not directly answered in Derbidge, we are not wholly left without guidance.
First, the Utah court states, “at least some level of knowledge or awareness of a
misstatement [is required] to make it a misrepresentation.” Id. (emphasis added).
Second, the court determined that the insured must have “no idea” that the
misstatements were inaccurate. Third, the Derbidge court quotes approvingly the
Utah common law standard which permits rescission of an insurance contract
when “the insured knew or should have known [the statements and answers] to be
untrue at the time he made them.” Id. at 794 (quoting Chadwick v. Beneficial Life
Ins. Co., 181 P. 448, 451 (Utah 1919)); see also M iddlemiss, 135 P.2d at 280.
W hile the common law was abrogated by statute, as the court noted, the common
law can instruct the interpretation of the rescission statute. Derbidge, 963 P.2d at
794. (“W e see no necessary conflict between the common law rule and section
31A-21-105(2).”).
17
Reading these statements together, in our view Utah courts would apply a
standard of recklessness to the insured’s state of mind under the statute. A
misstatement is not innocent under Derbidge if the applicant knew or should have
known about its falsity.
In addition to support in Utah’s common law, Utah courts adopted a similar
scienter requirement in interpreting the fraud element in Utah’s predecessor
insurance code. See Hardy v. Prudential Ins. Co., 763 P.2d 761, 769 (Utah 1988)
(holding that an insured’s “knowledge or good reason to know” of misstatements
“constitute[d] a fraud practiced upon the insurer” under now-superceded Utah
Code Ann. § 31-19-8 (1974) (citing Chadwick)).
Next, a “knew or should have known” standard is consistent with Utah
courts’ interpretation of other knowledge elements. See, e.g., Strand v. Prince-
Covey & Co., 534 P.2d 892, 894 (Utah 1975) (using the standard to establish a
bona fide purchaser under the Uniform Commercial Code); Smith v. Frandsen, 94
P.3d 919 (Utah 2004) (applying standard to general negligent misrepresentation
and fraudulent concealment claims); Russell Packard Dev., Inc. v. Carson, 108
P.3d 741 (Utah 2005) (employing test for knowledge element of the discovery
rule); Adamson v. Brockbank, 185 P.2d 264, 270 (Utah 1947) (raising the standard
as a factor in the creation of easements).
Other jurisdictions that define misrepresentations as non-innocent
misstatements are faithful to this analysis. See, e.g., M assachusetts M utual Life
18
Ins. Co. v. Allen, 416 P.2d 935, 941 (Okla. 1965) (“Failure to disclose a latent
disease of which applicant had no knowledge, or reason to know, will not void a
life insurance policy.”); Lazar v. M etropolitan Life Ins. Co., 290 F. Supp. 179,
181 (D. Conn. 1968) (A knowing misrepresentation occurs when an applicant
“gives an answer other than that which he has reason to believe is true.”);
CenTrust M ortg. Corp. v. PM I M ortg. Ins. Co., 800 P.2d 37, 42 (Ariz. Ct. App.
1990) (“Legal fraud occurs when an insured incorrectly states a fact about which
he has actual knowledge or that is presumed to be within his knowledge. Intent to
deceive need not be shown.”); First Am. Title Ins. Co. v. Lawson, 827 A.2d 230,
239 (NJ 2003) (applying “knew or should have known” standard).
W e find additional support in basic insurance law, which also yields a
“knew or should have known” standard. See, e.g., 12A-266 A ppleman on Ins.
§ 7300 (“[A] policy will not be avoided by [false] representations unless the
insured knew that they were false or was chargeable with such knowledge.”); 43
Am. Jur. 2d Ins. § 1018 (“Legal fraud in connection with insurance occurs when
the insured incorrectly states a fact about which the insured has actual knowledge
or that is presumed to be within the insured’s knowledge.”).
Under the weight of these authorities, we conclude that Utah courts w ould
hold that an applicant’s actual knowledge is not the sole basis for establishing a
misrepresentation under § 31A-21-105(2). A misrepresentation occurs if the
19
applicant knows or should have known about a misstatement in the application
and still presents it to the insurer.
b. Application
In applying this standard to the facts of this case, the district court did not
have the benefit of our interpretation of Derbidge, and concluded that ClearOne’s
knowledge, as a corporate entity, and not Flood’s specific knowledge governed
this factor. Accordingly, the district court made no definitive conclusions as to
whether Flood knew or should have known about the financial misstatements
attached to the National Union application.
First, the district court wrongly held that ClearOne’s knowledge, as a
corporate entity, as opposed to Flood’s, is the dispositive question when
adjudging the innocence of misstatements included in the insurance application.
W ithout finding that Flood (or any other corporate director) possessed knowledge
of the misstatements, the district court concluded, “ClearOne, as an entity, was
certainly aware of the conditions which gave rise to the misstated financial
statements and had a reason to know that its financial statements were incorrect.”
Order & M em. Decision at 26, Aplts. App. at 7021. The court then concluded
that the misstatements w ere not innocently presented to National Union. Yet, this
approach blurs the distinction between knowledge of a corporation and knowledge
of an individual director. Under the court’s standard, virtually any misstatement
of financial information included within an application could give rise to a
20
rescission of a corporate insurance policy. Such a reading would effectively
nullify the “innocence” defense established by Derbidge since applicants’
ignorance of the misstatement offers no protection.
Utah insurance law does not compel the per se imputation of any
misstatement made in an insurance application to the corporation without first
determining whether the application signor (or another corporate director) had
knowledge of the misstatement. In Utah, it is the general rule of corporate law
that only knowledge possessed by its officers and agents can be imputed to a
corporation. Lowe v. April Indus., 531 P.2d 1297, 1299 (Utah 1974)
(“[K]nowledge of the [corporate] entity is imputed to it from the knowledge
possessed by its officers and agents.”). Accordingly, National Union must
establish that Flood knew or should have known about the financial misstatements
attached to the application. W e leave open the question of whether another
corporate officer’s or director’s knowledge, aside from Flood’s knowledge, may
suffice to negate the innocence of any misstatement in ClearOne’s application for
insurance. 6
Second, although unclear from the court’s order, to the extent the district
court held that Flood had actual know ledge of the financial misstatements as a
6
As a general matter, a corporate policyholder should not be able to defeat
a bid for rescission based on misrepresentation by having a director ignorant of
the company’s improper accounting sign the insurance application while other
directors fully aware of the misrepresentations sit idly by.
21
matter of law, we disagree. The crux of the district court’s argument seems to be
statements made by Tim M orrison, ClearOne’s former Vice President of Product
Sales, inculpating Flood in the “pay as you go” scheme. Additionally, M ike Oltz,
a managing member of one of ClearOne’s distributors, claimed that Flood told
him, “for purposes of the accountants and legal requirements, ClearOne would
require payment for shipments . . . in 90 days.” Order & M em. Decision at 9,
Aplts. App. at 7004. Then, according to O ltz, Flood stated, “In writing there is a
brick wall at 90 days, in practice there is not.” Id.
Yet, this contradicts Flood’s own statements that she learned about the “pay
as you go” arrangement in December 2002, after signing the National Union
application. W hen a distributor earlier confronted her about the “pay as you go”
arrangement, she said it “w asn’t a point of concern [for her] because [she] didn’t
think it was accurate.” Id. at 3361. She claims she assumed it was just a “tactic”
of the distributor. Id. Even if the evidence does show that Flood knew about the
“pay as you go” scheme, it does not mean she knew that the 10-K contained
misstatements. As she admitted, she “was not an accountant” and she would have
needed to consult with Ernst & Young, ClearOne’s accountant, to determine if the
“pay as you go” scheme was a cause of concern. Id. In fact, ClearOne is
currently suing Ernst & Young for negligence in providing accounting advice. Id.
at 4457. Furthermore, Flood testified at the time she signed the Sarbanes-Oxley
certification for the 2002 financials and 10-K in September 2002, she believed
22
that there were no inaccuracies in the financials and that they fairly presented all
material aspects of ClearO ne’s financial condition. Id. at 3360–61. W ith all
inferences drawn in ClearOne’s favor, we agree that Flood’s actual knowledge of
the misstatements in the 10-K is in doubt.
On the other hand, whether she should have known about the misstatements
is a different question, and perhaps an easier matter to establish. In the corporate
context, corporate directors have a general obligation to know the financial
condition of their corporations.
As a general rule an officer or director of a corporation is chargeable
with knowledge of all matters relating to the affairs of the corporation
which he actually knows or w hich it is his duty to know. Thus, in
actions by strangers against an officer or director, the defendant will
generally be charged with knowledge of all facts relating to the
condition and business of the company which he might have known by
the exercise of due diligence, whether actually known to him or not.
Gay v. Young M en’s C onsol. Coop. M ercantile Inst., 107 P. 237, 240 (Utah 1910);
see also 2 Fletcher Cyc. Corp. § 465 (“[T]he [corporate] officer is chargeable
with the knowledge he or she should have had in the discharge of his or her
duties.”). Furthermore, under the Sarbanes-Oxley Act, the signing officer of a
corporate 10-K (in this case, Flood) is required to certify the accuracy of the
corporation’s financial statements and requires the officer to “design[] . . .
internal controls to ensure that material information relating to the [corporation]
is made known to such officer[] by others within [the corporation].” 15 U.S.C.
§ 7241(a)(1)–(4).
23
Under the record before us, we do not know if Flood “should have known”
about the financial misstatements in the 10-K. W e do not know if Flood utilized
reasonable internal controls that would have ferreted out the financial
misstatements in the 10-K or whether she reasonably relied on Ernst & Young in
conducting their business operations to satisfy the due diligence requirement of
corporate directors (especially in light of ClearOne’s suit against the accounting
firm). Accordingly, summary judgment on this question is inappropriate since the
district court did not yet have the opportunity to consider these questions. W e
remand this matter to the district court to consider whether Flood should have
know n about the financial misstatements.
3. M ateriality
A fact is material to the risk assumed by an insurance company if
reasonable insurers would regard the fact as one which substantially increases the
chance that the risk insured against will happen and therefore would reject the
application. Burnham v. Bankers Life & Casualty Co., 470 P.2d 261, 263 (Utah
1970). In other words, a material fact is one that “would naturally influence the
insurer’s judgment in making the contract, in estimating the degree and character
of the risk, or in fixing the rate of insurance.” M iddlemiss, 135 P.2d at 279.
W e do not see how ClearOne’s financial records, which give an account of
the financial health of the company, could not influence National Union’s
assessment of the company’s risk. In any event, ClearOne conceded the issue at
24
oral argument. Accordingly, we find no factual dispute as to the materiality of
the financial statements.
4. Reliance and the Defense of Equitable Estoppel
Finally, ClearOne contends a genuine dispute exists as to whether National
Union actually relied on the financial statements in issuing the policy. It argues,
moreover, that National Union should be equitably estopped from rescinding the
insurance policy based on its knowledge of the irregularities in the financial
statements.
The Utah Supreme Court has laid out the standard for analyzing reliance:
An insurance com pany cannot escape liability on a policy if it is
established that there should have been no actual reliance on the
applicant’s misrepresentation, concealment, or omission.
Hardy v. Prudential Ins. Co., 763 P.2d 761, 770 (U tah 1988). The court set forth
two corollaries to this rule which, if shown, prevent the insurer from escaping
liability: “(1) if the insurer has information which would have put a prudent
person on notice of possible falsity and would have caused an inquiry which, if
carried out with reasonable diligence, would have revealed the truth, the insurer
cannot rely on the misrepresentation; and (2) if the insurer chooses to make an
independent inquiry and a reasonable search would have uncovered the
misrepresentation but the facts were not discovered because the investigation was
cursory, the insurer cannot rely on the misrepresentation.” Id.
25
ClearOne claims that National Union underwriters are trained to spot the
“red flags” in its financial statements and “knew or should have known” of
ClearOne’s misstatements and likely priced the risks of the irregularities into the
premium charged ClearOne for coverage. ClearOne avers this knowledge of the
misrepresentation precludes reliance upon the financials and should estop
rescission of the policy.
Nevertheless, we agree that National Union conducted a reasonable inquiry
into the red flags in ClearOne’s financial statements. After the insurance
application was submitted, Brady Head, National Union’s lead underwriter, sent
follow-up questions regarding National Union’s concerns to ClearO ne via email.
Head received a call from Susan Strohm, ClearOne’s CFO, indicating that there
had been no non-compliance issues with ClearOne’s revenue recognition practices
and that its financial statements had been certified as accurate under Sarbanes-
Oxley. ClearO ne does not challenge this assertion.
Instead, ClearOne claims that Strohm’s call actually heightened Head’s
concerns. This is unfounded in the record even in the light most favorable to
ClearO ne. To the contrary, while they discussed some problems w ith accounts
receivable and inventory levels, Head testified that Strohm answered his questions
“in a satisfactory manner.” Aplts. App. at 3426. M oreover, there is no indication
National Union was aware of the type of questionable accounting practices later
26
revealed by ClearOne. No disputed facts suggest N ational Union failed to
investigate adequately the financial information it was provided.
Consequently, we perceive no error in the district court’s findings on
reliance and equitable estoppel.
* * *
Accordingly, we find no genuine issue of material fact as to (1) the
existence of a misstatement, (2) materiality, and (3) reliance. W e
remand, however, on the limited question of w hether ClearOne’s financials were
innocently presented to National U nion under U tah law.
B. The Severability C lause
Next, we turn to the claims related to the severability clause. ClearOne
argues the policy’s severability clause prevents National Union from rescinding
its policy ab initio and so partial coverage under the policy would survive any
rescission. National Union argues the severability clause is irrelevant to the
rescission analysis. Since we remand on the question of whether the
misstatements supplied to National Union were innocent, and whether any
knowledge might be attributed to the officers and directors, we cannot decide the
precise question raised by the parties on appeal. But several points regarding the
severability clause are clear at this stage in the litigation.
First of all, whether a severability clause precludes rescission is a fact
intensive, case-by-case inquiry dependent on the precise language of the
27
severability clause and the facts of the misrepresentation. W hile severability
clauses may in general limit the ability to rescind an insurance policy, in this
case, the language of the severability clause does not preclude rescission of the
insurance policy in its entirety.
The severability clause in National Union’s application provides,
It is further agreed that in regard to the applicability of questions 8, 9,
and 10 above, the facts pertaining to any knowledge possessed by any
Insured (other than the knowledge and/or information possessed by the
person(s) executing the application) shall not be imputed to any other
Insured Person; only facts pertaining to and knowledge possessed by any
past, present or future chairman of the board, president, chief executive
officer [C EO], chief operating officer [COO], chief financial officer
[CFO] and General Counsel . . . of the Organization shall be imputed to
the Organization.
Aplts. App. at 3680. By its language, the clause unequivocally applies only to
three specific questions in the application— Questions 8, 9, and 10. As we found
above, the misstatement at issue was the inclusion of a falsely stated 10-K Form
submitted pursuant to Question 14 of the application. See id. Accordingly, the
severability clause does not cover ClearOne’s misstatement and it would be
ineffective against National Union’s rescission of the insurance policy in its
entirety should the financials be deemed to be a non-innocent misrepresentation.
ClearOne invoked In re HealthSouth Corp. Ins. Litig., 308 F. Supp. 2d
1253 (N.D. Ala. 2004), in support of its position. In HealthSouth, the court held
that insurers were precluded from rescinding a policy ab initio where the policy
contained a severability clause which limited rescission to individual insureds
28
with personal knowledge of the misrepresentation. The court recognized that a
policy’s severability provision takes precedence over the applicable rescission
law in the situation where the policy grants greater protection for the insured than
the applicable law. Id. at 1270.
Nevertheless, a striking difference between HealthSouth and the present
case is the broad scope of the HealthSouth severability clause. In that case, the
severability language of the policy stated,
W ith respect to the declarations and statements contained in [this]
written application(s) for coverage, no statement in the application or
knowledge possessed by any Insured Person shall be imputed to any
other Insured Person for the purpose of determining if coverage is
available.
Id. at 1261 (emphasis added).
W hile the HealthSouth clause applied to the entire application, the clause in
this case is far more limited, applying only to Questions 8, 9, and 10 of the
application. ClearOne admits as much: “The severability clause contained in the
National Union policy is a limited severability clause, as opposed to the full
severability clause at issue in HealthSouth.” Aplts. Br. at 26. Thus, the
severability clause does not appear to cover the false financials included with the
application pursuant to Question 14.
Since we find ClearOne’s argument on this record unpersuasive, we need
not address National Union’s rebuttal argument employing Cutter & Buck v.
Genesis Ins. Co., 306 F. Supp. 2d 988 (W .D. W ash. 2004), except to say that the
29
severability clause in that case was even more broad than the one here and the
district court still found full rescission by the insurer w as not prohibited. Id. at
1011.
C . Survival of Other C laim s
Finally, we consider Bagley’s breach of contract and tort claims and
ClearOne’s affirmative charges against National Union. ClearOne and Bagley
maintain that (1) the district court erred in dismissing Bagley’s claims based on
its interpretation of “loss” under the policy, and (2) the district court should not
have dismissed ClearO ne’s bad faith and punitive damages claims.
At the outset, we note, should the district court conclude that rescission ab
initio of the policy was proper on remand, then neither Bagley’s nor ClearOne’s
affirmative claims would survive since the effect of rescission would be to nullify
the policy. The policy would be ineffective and National Union would have no
tort or contractual duty to ClearOne or Bagley to serve as a basis for these
claims. 7
7
In the realm of contract law, rescission negates the existence of the
contract. Ocean Accident & Guaranty Corp. v. M eek, 215 P. 810, 810–11 (Utah
1923), provides,
Generally speaking, the effect of rescission is to extinguish the contract.
The contract is annihilated so effectually that in contemplation of law
it has never had any existence, even for the purpose of being broken.
Accordingly, it has been said that a lawful rescission of an agreement
puts an end to it for all purposes, not only to preclude the recovery of
(continued...)
30
W hile we also agree with the district court’s disposition of the loss
question, the parties’ bad faith and punitive damages claims will turn on the
question of rescission.
1. B agley’s C laim s
ClearOne and Bagley maintain the district court erred in dismissing
Bagley’s various counts related to his claimed “loss” under the policy. Bagley
seeks coverage based upon the dilution in value of his ClearOne stock attributable
to the issuance of 1.2 million additional shares of stock in settlement of the class
action. Although a ClearOne shareholder, the settlement precluded him, as a
settling defendant, from receiving any of the shares distributed to shareholders.
National Union denied him coverage based on the rescission of the insurance
policy. Bagley argues that National Union could only properly rescind his
individual coverage under the policy if it could prove that either Bagley or Flood
7
(...continued)
the contract price, but also to prevent the recovery of damages for
breach of the contract. [T]he rescission of a contract while in the
course of performance destroys or annuls any claim which either of the
parties might otherwise have in respect of performance.
W here a contract has been rescinded . . ., the parties are as a general
rule restored to their original rights with relation to the subject-matter,
and no action for breach can be maintained thereafter, nor are the
parties bound by the contract with reference to their subsequent actions.
31
knew of ClearOne’s misstatements in its 2002 financials. Furthermore, Bagley
argues that the district court incorrectly concluded (1) that “[t]his injury is the
same injury suffered by all other shareholders;” and (2) Bagley’s injury is not one
suffered by him in his capacity as a director, but only in his capacity as a
shareholder.” Order & M em. Decision at 29, Aplts. App. at 7024.
W e agree with the district court that Bagley’s loss is attributed to his status
as a major shareholder, not as a director of ClearOne. According to the policy,
“loss” does not cover “any amounts for which an Insured is not financially liable
or which are without legal recourse to an Insured.” Aplts. App. at 3693. The
dilution of his ownership share in ClearOne by the settlement does not relate to or
implicate his financial or legal liability as a director of ClearOne. For example, if
Bagley was simply a director with no shares in ClearOne, he would have suffered
no loss from the settlement under the dilution theory. His claimed “loss” is a
distinct and direct injury resulting only from his status as a ClearOne shareholder,
not as a ClearOne director. Accordingly, Bagley’s “loss” was not covered by the
policy. In consequence, we hold that National Union did not breach the express
terms of its policy nor did it violate the implied duty of good faith and fair
dealing.
2. C learOne’s Claim s
ClearOne also argues that the district court committed reversible error in
failing to address its bad faith and punitive damages claims. According to
32
ClearO ne, National Union violated the implied duty of good faith and fair
dealing, which inheres in every contract as a matter of law, requiring National
Union to “diligently investigate the facts [of ClearOne’s] claim[,] . . . fairly
evaluate the claim, and . . . thereafter act promptly and reasonably in rejecting or
settling the claim.” Aplts. Br. at 51 (citing Black v. Allstate Ins. Co., 100 P.3d
1163, 1168 (Utah 2004)). W e agree with ClearOne that the district court failed to
address these claims. The district court’s failure was justifiable considering its
holding that the insurance policy was rescinded. Nevertheless, since we remand
on that issue, the district court will also have to reconsider these claims on
remand.
IV. Conclusion
For the foregoing reasons, we REM AND the following questions to the
district court: (1) whether submission of false financial statements in ClearOne’s
application met the scienter requirement under Utah law; and (2) whether
ClearOne’s bad faith and punitive damages claims against National Union survive
summary judgment. We AFFIRM the district court’s order w ith respect to all
other issues.
33