UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1481
LEE BENTLEY FARKAS,
Plaintiff - Appellant,
v.
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:11-cv-00529-LMB-IDD)
Submitted: March 7, 2013 Decided: April 11, 2013
Before SHEDD, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Craig C. Reilly, LAW OFFICE OF CRAIG C. REILLY, Alexandria,
Virginia; William B. Cummings, WILLIAM B. CUMMINGS, PC,
Alexandria, Virginia; Craig H. Kuglar, LAW OFFICE OF CRAIG
KUGLAR, LLC, Atlanta, Georgia, for Appellant. Sylvia H.
Walbolt, Joseph Hagedorn Lang, Jr., CARLTON FIELDS, P.A., Tampa,
Florida; Caroline Turner English, Jackson D. Toof, ARENT FOX
LLP, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Plaintiff-Appellant Lee Bentley Farkas of
bank, wire, and securities fraud arising from a multibillion
dollar scheme to hide the financial difficulties of his mortgage
company, Taylor, Bean & Whitaker Mortgage Corp. (“TBW”). * TBW
held a directors and officers liability policy (“the Policy”)
with Defendant-Appellee National Union Insurance Company of
Pittsburgh, Pa. (“National Union”). National Union had advanced
some defense costs to Farkas pursuant to the Policy, but ceased
doing so when the jury verdict was entered against him. National
Union claimed that two “in fact” exclusions in the Policy
allowed it to cease payments. Those provisions excluded coverage
for claims “arising out of, based upon or attributable to” (1)
“the gaining in fact of any profit or advantage to which an
Insured was not legally entitled,” and (2) “the committing in
fact of any criminal, fraudulent or dishonest act, or any
willful violation of any statute, rule or law.”
Farkas sued National Union, seeking declaratory and
injunctive relief requiring National Union to continue advancing
defense costs through at least the conclusion of his criminal
appeal. National Union filed an answer and a counterclaim
seeking recoupment of the $928,977.59 it had advanced under the
*
We affirmed Farkas’s convictions. See United States v.
Farkas, 474 F. App’x 349 (4th Cir. 2012).
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Policy, arguing that because the “in fact” exclusions were
triggered, Farkas was never entitled to defense costs to begin
with. The district court denied Farkas’s motion for a
preliminary injunction. Later, on cross-motions for summary
judgment, it granted National Union’s motion and denied
Farkas’s, finding that (1) the “in fact” exclusions were
triggered by the criminal conviction; and (2) National Union was
entitled to recoup the costs it had previously advanced. Farkas
timely appealed.
After the case was calendared for oral argument, this Court
entered an order withdrawing it from the calendar. Having
carefully reviewed the briefs, record, and applicable law, we
affirm for the reasons stated by the district court in its
thorough opinion. See Farkas v. Nat’l Union Fire Ins. Co. of
Pittsburgh, Pa., 861 F. Supp. 2d 716 (E.D. Va. 2012).
AFFIRMED
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