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Bank Bond Covers Third-Party Losses Arising out of Bank Employee’s Fraud, Eighth Circuit Holds

By Shawn S. Ledingham Jr. & Proskauer Labor and Employment Department on July 2, 2015
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Fidelity bonds are purchased primarily to protect against loss to the policyholder’s own assets, from things like employee theft or embezzlement. In Avon State Bank v. BancInsure, Inc., however, the Eighth Circuit interpreted the language of a bank’s fidelity bond to provide broader coverage, holding that the bond indemnified Avon State Bank for liability to third parties arising from an email scam.

The Avon State Bank decision arose from a fraudulent email scheme, in which an unknown scammer promised a share of a $9 million estate in exchange for help in transferring the funds from the Netherlands to the United States. An officer at Avon State Bank was drawn into the scam by one of his customers (another victim of the scam), sending some of his own money to the scammer to assist in transferring the estate. When the scammer demanded more, the bank officer grew skeptical of the authenticity of the transaction. To protect his own “investment,” the officer convinced two others to contribute a combined $485,000 to help transfer the estate.

When it became apparent that the whole thing was a scam, the two investors who had contributed $485,000 at the behest of the Avon State Bank officer successfully sued the bank for fraudulent misrepresentation. The bank subsequently settled with the investors. The bank’s insurer, BancInsure, refused to indemnify the bank, however, for the settlement under a fidelity bond. The fidelity bond insured Avon State Bank against “[l]oss resulting directly from dishonest or fraudulent acts committed by an Employee acting alone or in collusion with others.” BancInsure argued that the phrase “direct loss” limited coverage to instances where the bank’s own assets were lost, not where the bank had to reimburse third parties for their loss, as a result of employee misconduct.

On appeal of the decision in the coverage action, the Eighth Circuit sided with the bank, holding that “under the loosely worded language of the Bond, no such limitation on third-party losses appears.” Because the bank’s liability to the two scammed investors was a loss resulting directly from its employee’s dishonesty and fraud, the loss was covered under the plain language of the bond.

Avon State Bank is an encouraging reminder to carefully review policy language when evaluating coverage. Even though certain types of insurance policies may be commonly thought to provide coverage that is limited to specific types of losses, the language of the policy may actually provide broader coverage.

Photo of Shawn S. Ledingham Jr. Shawn S. Ledingham Jr.

Shawn Ledingham is a partner in the firm’s Trial Strategies practice, successful in obtaining victories through motion practice and defending client interests at trial. He has represented over thirty Fortune 500 companies and subsidiaries in litigation, as well as many other businesses, sports…

Shawn Ledingham is a partner in the firm’s Trial Strategies practice, successful in obtaining victories through motion practice and defending client interests at trial. He has represented over thirty Fortune 500 companies and subsidiaries in litigation, as well as many other businesses, sports leagues, law firms, and public entities.

Shawn is a member of the firm’s Sports Law Group and has a deep understanding of the legal framework of today’s sports industry. Shawn has represented and counseled a wide range of sports leagues and teams, including Major League Baseball, Major League Soccer, the National Basketball Association, the Women’s National Basketball Association, the National Football League, the Pac-12 Conference, the Big East Conference, the World Surf League, the Drone Racing League, and Oracle Team USA.

Shawn also has substantial experience in toxic tort, product liability, and environmental litigation. A member of the firm’s Product Liability & Consumer Litigation Group, Shawn defends clients in cases of alleged environmental contamination, product design or manufacturing defects, and improper or inadequate labeling.

Shawn is actively involved in promoting justice in his community and is a member of Proskauer’s Pro Bono Committee.  During the summer of 2019, Shawn served as a pro bono prosecutor with the Los Angeles Office of the City Attorney, prosecuting three jury trials as sole trial counsel and resolving many other cases short of trial. Shawn also served as counsel to the Los Angeles County Citizens’ Commission on Jail Violence, investigating excessive use of force by deputies within the county jail system. For his work on jail reform, Shawn received the ACLU of Southern California’s Community Service Pro Bono Award and a commendation from the County of Los Angeles.

While in law school, Shawn was managing editor of the New York University Law Review.

Read more about Shawn S. Ledingham Jr.Email
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  • Posted in:
    Insurance
  • Blog:
    Risk and Recovery
  • Organization:
    Proskauer Rose LLP

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