In one form or another, most crime policies also provide cover for fidelity losses. These are losses which result from the wrongful acts of the FI’s own employees, and normally require the policyholder to demonstrate an intent, on the part of the employee, to make an improper financial gain for himself, or for another person with whom the employee has colluded. As a general rule, the insurer will also only be liable for losses which are “discovered” during the policy period. Depending on the bargaining power of the insured, “discovered” can refer to the first date on which (at its narrowest) a particular senior executive first became aware that a claim under the policy was a realistic possibility or (more broadly) when the insured first acquired corporate knowledge of the underlying problem.
Resolution Trust Corp. v Fidelity and Deposit Co. of Maryland
In the Resolution Trust case, there were two issues arising from what the Court referred to as a “kiting scheme” conducted by a mortgage lender, Northwest. The mortgage lender’s operations had been financed by a loan provided by a warehouse lender, City Collateral (CC), and the scheme involved the diversion of CC’s security and loan repayments. When the matter first came to the attention of certain executives at CC, they decided to suppress it in the belief that, if CC’s parent company became aware of the matter, the executives would not be awarded the “golden handcuff” payments which they were expecting to receive. In due course, the matter came to the attention of the parent company but, by this time, the Northwest credit line was in default and CC faced a $7 million loss. The parent company notified its bond insurer who denied coverage.
The first issue was whether the loss had been discovered during or (as the bond insurer contended) after the policy period. The policy provided that discovery occurred “when the Insured becomes aware of facts which would cause a reasonable person to assume that a loss covered by the bond has been or will be incurred, even though the exact amount of or details of loss may not be known”. On this point, the Court decided that this definition should be interpreted widely so that there was a low threshold for discovery and, on the facts of the case, it had been inappropriate to award the insurer summary judgment on the basis that the loss had been discovered after the policy period.
The second issue was whether, for the purpose of the fidelity insuring clause, the City Collateral executives acted with the “manifest intent” to obtain a financial benefit for themselves or a third party which was not a salary, commission, fee, bonus, award or other benefit earned in the normal course of employment – a standard formulation that will be familiar to many FI risk managers. The Court held that the golden handcuff payments (although clearly one-off) fell squarely within the excluded category of benefits that were earned in the normal course of employment. Therefore, the loss was not covered by the crime policy.
First Defiance Financial Corporation v Progressive Casualty Insurance Company
In this case, a bank claimed under its fidelity insurance policy when it emerged that an employee had stolen approximately $900,000 from its customers’ brokerage accounts held with a custodian bank. The bank indemnified the customers and the insurer denied cover.
The first issue was whether, for coverage purposes, the stolen money represented “covered property”, in the sense that it was “owned and held by someone else under circumstances which make the insured responsible for the property prior to the occurrence of the loss”. The Court decided that it was, rejecting the insurer’s argument that the terms of the brokerage agreements were such that the bank disclaimed liability for losses due to breach of fiduciary duty or theft.
The second issue was whether the employee’s theft had “directly” caused the bank’s losses, because he had stolen funds from customer accounts and not from the bank itself. This was relevant because the policy covered “loss resulting directly from dishonest or fraudulent acts committed by an Employee”. The Court held that, because the money was “covered property”, and a dishonest employee had stolen it, the employee had “directly” caused the loss. To use the Circuit Judge’s words, it was “as simple as that, and that is true under any definition of ‘directly’.”
The final issue was whether the employee had the sufficient “manifest intent” to cause the bank’s loss. Based on previous US case law this objective requirement was met where a particular result was substantially certain to follow from conduct. In the Court’s view, there could be no doubt that theft from client accounts in these circumstances would be substantially certain to cause losses to the bank.