FILED
United States Court of Appeals
Tenth Circuit
February 1, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
FIRST NATIONAL BANK OF
DAVIS, OKLAHOMA,
Plaintiff-Appellant,
v. No. 10-6132
(D.C. No. 5:09-CV-00546-F)
PROGRESSIVE CASUALTY (W.D. Okla.)
INSURANCE COMPANY,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before MATHESON and BALDOCK, Circuit Judges, BRORBY, Senior
Circuit Judge.
Plaintiff First National Bank of Davis, Oklahoma (“the Bank”), appeals
from the district court’s order denying its motion for summary judgment and
granting summary judgment to defendant Progressive Casualty Insurance
Company (“Progressive”) on the Bank’s claim for breach of the terms of a
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
standard form Financial Institution Bond and for breach of the duty of good faith
and fair dealing. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
The Bank alleged the following facts. It extended credit to a customer in
the amount of $241,020, and the loan was secured by a Corporate Guaranty in the
amount of $240,000. After the customer defaulted, the Corporate Guaranty also
failed. The Bank obtained a judgment against the issuer of the Corporate
Guaranty, but it was uncollectible. The Bank then sought recovery from
Progressive under its Financial Institution Bond, asserting that Insuring
Agreement (E)(1) protected it from a loss resulting from having extended credit
based on its good faith reliance on a Corporate Guaranty. Progressive refused to
pay based on the qualifying language following (E)(1)(i), which, Progressive
asserted, applies to all of Insuring Agreement (E)(1) and limits recovery under
Insuring Agreement (E)(1) to documents that contained a forged signature, that
were altered, or that were lost or stolen.
The bond begins with this introductory sentence: “The Underwriter . . .
agrees to indemnify the Insured for:[,]” and then proceeds to set out Insuring
Agreements (A) through (F). Aplt. Amended App., Vol. I at 310-13.
Insuring Agreement (E)(1) states as follows:
SECURITIES
(E) Loss resulting directly from the Insured having, in
good faith, for its own account or for the account
of others,
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(1) acquired, sold or delivered, or given value,
extended credit or assumed liability, on the
faith of, any original
(a) Certificated Security,
(b) Document of Title,
(c) deed, mortgage or other instrument
conveying title to, or creating or
discharging a lien upon, real
property,
(d) Certificate of Origin or Title,
(e) Evidence of Debt,
(f) corporate, partnership or personal
Guarantee,
(g) Security Agreement,
(h) Instruction to a Federal Reserve Bank
of the United States, or
(i) Statement of Uncertificated Security
of any Federal Reserve Bank of the
United States
which
(i) bears a signature of any maker,
drawer, issuer, endorser,
assignor, lessee, transfer agent,
registrar, acceptor, surety,
guarantor, or of any person
signing in any other capacity
which is a Forgery, or
(ii) is altered, or
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(iii) is lost or stolen[.]
Id. at 312.
The Bank sued Progressive for breach of the Financial Institution Bond and
for breach of the duty of good faith and fair dealing. On cross-motions for
summary judgment, the district court granted summary judgment in favor of
Progressive, explaining its reasoning in a sixteen-page order. The court reviewed
the entire bond, “[c]oncluding that this action amounts to an untenable attempt by
plaintiff to convert the Financial Institution Bond in question into a financial
guaranty (which it clearly is not)[.]” Id., Vol. II at 528-29.
The Bank appeals, arguing that: (1) the clear and plain language of the
bond provides coverage for the Bank’s loss resulting directly from the Bank
having in good faith extended credit on the faith of an original Corporate
Guaranty; and (2) if this Court finds that the clear and plain language of the bond
does not provide coverage for the Bank’s loss as a result of the Corporate
Guaranty’s failure to pay, then it is evident that the bond’s language is ambiguous
and subject to more than one interpretation and should be construed against
Progressive.
“We review a grant of summary judgment de novo and apply the same legal
standard as the district court.” United States v. Botefuhr, 309 F.3d 1263, 1270
(10th Cir. 2002) (quotation omitted). Summary judgment is proper “if the movant
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shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a) (setting out the
legal standard formerly found in Rule 56(c), as revised effective December 1,
2010). “When applying this standard, we view the evidence and draw reasonable
inferences therefrom in the light most favorable to the nonmoving party.”
Botefuhr, 309 F.3d at 1270 (quotation omitted).
The Bank points to this language from the beginning of the bond and
Insuring Agreement (E)(1): “The Underwriter . . . agrees to indemnify the
Insured for: . . . (E) Loss resulting directly from the Insured having, in good
faith, for its own account, . . . (1) . . . extended credit . . . on the faith of, any
original . . . (f) corporate . . . Guarantee . . . [or] (g) Security Agreement[.]”
Aplt. Amended App., Vol. I at 310, 312. The Bank contends that the qualifying
language upon which Progressive relies applies only to paragraph (E)(1)(i). The
parties’ dispute thus revolves around the punctuation and placement on the page
of the subparagraphs containing the qualifying language following (E)(1)(i).
See id. at 312.
We have carefully reviewed the parties’ arguments and the record on appeal
in light of the governing law. We conclude that the trial court was correct in
holding that Insuring Agreement (E)(1) unambiguously insured the Bank against
an instrument that contained a forged signature or that was altered, lost, or stolen,
and did not insure the Bank against non-payment.
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The Bank raises only one argument that the district court did not
address—that it makes no sense for the bond to include an Insuring Agreement
(E) on forgeries and alterations when there is already an Insuring Agreement (D)
on forgeries and alterations. See Aplt. Opening Br. at 10-11; Aplt. Amended
App., Vol. I at 311-12. The answer from the plain language of the bond is that
Insuring Agreement (D) and Insuring Agreement (E) cover different types of
forgeries and alterations. The Exclusions section of the bond also plainly
indicates that forgeries and alterations may be “covered under Insuring
Agreements (A), (D), (E) or (F)[.]” See id. at 318. Under Oklahoma law,
language in a contract is ambiguous when it is “susceptible to two
constructions[,]” without force or strain. See Max True Plastering Co. v.
U.S. Fid. & Guar. Co., 912 P.2d 861, 869 (Okla. 1996) (interpreting insurance
contract).
In our view, the presence of Insuring Agreement (D) does not create an
ambiguity in the language of Insuring Agreement (E). We conclude that there is
no merit to the Bank’s argument that Insuring Agreement (E)(1) is ambiguous,
and we affirm for substantially the same reasons set forth by the district court in
its thorough and well-reasoned May 5, 2010, order granting summary judgment to
Progressive.
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AFFIRMED.
Entered for the Court
Wade Brorby
Senior Circuit Judge
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