dissenting:
I respectfully dissent from that part of the majority’s opinion that affirms the district court’s award of summary judgment to Local 812, denying Cigna’s claim that Local 812 was obligated under the Settlement Agreement to indemnify Cigna for payment of Srein’s commission.
. The majority’s discussion is divided into Part A, which upholds the district court’s summary judgment requiring Cigna to pay Srein a 2% commission, and Part B, which upholds the district court’s summary denial of Cigna’s claim to enforce the Settlement Agreement.
I agree with the theory underlying Part B of the majority’s opinion. If Cigna conceded that the Trust Agreement required it to return to its insured that portion of the PSR account that exceeded specified expenses plus an agreed level of profit, Cigna would have had no right, in negotiating the Settle*1099ment Agreement with its insured, to demand indemnification for Srein’s commission as a condition of the release of the insured’s funds. Furthermore, in my view, having essentially concealed Srein’s role from Local 812, Cigna could not establish, consistent with its fiduciary obligations, that Local 812 had contractually committed to be responsible for Srein’s commission. Thus, if the majority had a satisfactory basis for its conclusion in Part B that Local 812 had a right to reimbursement of part of the funds in the PSR account, I would agree that the Settlement Agreement breached Cigna’s fiduciary obligations, and Local 812 should not be required to indemnify Cigna for Srein’s commission.
While I agree with the theory of Part B, the facts are lacking. I see no convincing support for the majority’s finding that Local 812 had a call on any of the funds in the PSR account. The majority’s attempt in Part B to justify the conclusion that funds in the PSR account “belonged to Local 812,” Maj. Op. at 1096, depends on two invalid arguments.
First, the majority asserts that “Cigna repeatedly conceded at oral argument that it had no interest in the funds in the premium stabilization reserve, aside from an amount necessary to cover the costs of administering the runout claims plus an amount to pay Srein’s commission.” Maj. Op. at 1097. I believe the majority has simply misunderstood the significance of Cigna’s concession. The reason Cigna has made no claim to the final portion of the PSR account is that in the Settlement Agreement with Local 812 it agreed to let Local 812 have these funds in return for Local 812’s commitment to return the funds if necessary to cover any commission entitlement established by Srein. As Srein’s commission claim turned out to be less than the full amount in the PSR account, the Settlement Agreement gave Local 812 the balance, which was $76,185. This is what Cigna conceded. Nowhere, however, has Cigna conceded that the funds in the PSR account were plan assets, required to be refunded under the terms of the plan. The majority has taken Cigna’s concession, predicated on what Cigna gave up in its Settlement Agreement, and treated it as if Cigna had conceded it never had an entitlement to these funds. Cigna made no such concession.
Second, the majority relies on Cigna’s contention, asserted in defense of Srein’s claim, that New York Insurance Law § 2119 required that Local 812’s signature be obtained before Cigna could pay Srein his commission. The majority concludes this amounted to a concession that the funds in the PSR account belonged to Local 812.
There was no such concession. What Cig-na contended, in a lame effort to defeat Srein’s claim, was that § 2119 prohibited the making of a commission payment to Srein out of funds derived from an insured without the insured’s consent. The argument is frivolous and was correctly rejected.1 But, frivolous or not, Cigna’s' argument was never that Local 812 was entitled under the terms of the plan to the funds in the PSR account; it was merely that because the funds to pay Srein came “indirectly” from the insured, § 2119 required the signed authorization of the insured before payment could be lawfully made. That is not a concession that Local 812 owned any part of the PSR balance. Apart from its misinterpretation of these two “concessions” by Cigna, the majority offers no support whatsoever for its conclusion that the PSR account contained plan assets that Cigna was obligated under the terms of the plan to return to Local 812.
In my view, the nature of Cigna’s original compensation agreement with Local 812 is not sufficiently explained in the record of the summary judgment motion to permit a confident conclusion whether the PSR account *1100was the exclusive property of Cigna,2 or whether Local 812 had a right to the reimbursement of any part of these funds.3 If the former, Cigna was free to contract to pay any part of the account to Srein and to contract to pay other parts to Local 812, in settlement of their dispute, on whatever terms it saw fit. If the latter, the majority correctly asserts that Cigna would violate its fiduciary obligation if it conditioned the return of Local 812’s moneys on a promise to indemnify Cigna’s obligation to Srein. Trial is needed to answer the question.4
. In the first place, § 2119(c)(1) contains an express exception for "commissions deductible from premiums." Second, the prohibition of § 2119(d) applies only to payments “of any greater sum than the rate of premium," and Srein's commission was not. Finally, the obligation to pay Srein was simply Cigna's obligation and was not in any way to be borne by Local 812 except to the extent that Cigna had negotiated a fee sufficiently large to cover it. Accordingly, Local 812 is not "the party to be charged,” § 2119(a)(1), for the payment of Srein's commission and § 2119 probably has no relevance.
. The evidence seems to show that the PSR account represented the remainder of the capitation fees collected by Cigna from Local 812, and that these fees were designed to cover premiums for excess coverage, expenses of claims handling, administration and litigation, and profit. If so, all the funds in the PSR account belonged to Cigna. (As the district court iound, "[t]he residue after all costs was Cigna’s profit.”)
. In response to the arguments asserted by the majority in footnote 5, I do not see how Molloy's letter of April 21, 1993, asserting that Cigna "will have no choice but” to lodge the PSR funds with the court until the rights of the parties are determined in litigation, constitutes a concession that the funds belonged to Local 812.
I agree fully with the majority that no "concession” is needed if the evidence demonstrates conclusively Local 812’s entitlement. The problem is that Local 812’s entitlement was shown neither by concession nor by evidence.
Finally, the fact that Cigna's attempt to defeat Srein's rights by reliance on § 2119 was frivolous has no bearing on Local 812's entitlement to the funds.
The issue should have been tried.
.The additional reasons given by the district court to justify summary judgment — lack of consideration for the Settlement Agreement and economic duress — were clearly invalid and are not endorsed by the majority opinion.